<PAGE> 1
As filed with the Securities and Exchange Commission on June 27, 1994
Post Effective Amendment No. 1 (No. 33-39479)
Post Effective Amendment No. 1 (No. 33-39480)
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________
National City Corporation
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 34-1111088
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
National City Center
1900 East Ninth Street
Cleveland, Ohio 44114-3484
216/575-2000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
________________
David L. Zoeller
Senior Vice President and General Counsel
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
216/575-2978
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Dennis W. LaBarre Kenneth T. Cote
Jones, Day, Reavis & Pogue Brown & Wood
North Point One World Trade Center
901 Lakeside Avenue New York, New York 10048
Cleveland, Ohio 44114
______________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement,
as determined by the Registrant.
______________
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, check the following box. (X)
______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum
Securities to be Registered (1) Offering Price Aggregate Amount of
Registered Per Unit(1)(2) Offering Price (1)(2) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities........... $500,000,000 100% $500,000,000 $51,725 (3)
Preferred Stock...........
Depositary Shares(4)......
Common Stock(5)...........
=====================================================================================================================
</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. In no event will the aggregate
initial offering price of the Debt Securities and the Preferred Stock
issued under this Registration Statement exceed $500,000,000 or the
equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units. The Securities registered
hereby may be sold separately, together or in units with other securities
registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). The proposed maximum offering price per unit
will be determined from time to time by the Registrant in connection with
the issuance by the Registrant of the securities registered hereunder.
(3) Includes an aggregate of $350,000,000 registered and not sold on Form S-3
Registration Statements (Nos. 33-39479 and 33-39480) under the Securities
Act of 1933 both effective April 12, 1991. This amount is included in
the amount to be registered and proposed maximum aggregate offering
price, but excluded for purposes of calculation of the amount of the
Registration Fee. Includes $150,000,000 of additional securities to be
registered hereunder along with a Registration Fee of $51,725.
(4) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in
shares of the Preferred Stock registered hereunder, Depositary Receipts
would be distributed to those persons purchasing such fractional
interests and the shares of the Preferred Stock would be issued to the
Depositary under the Deposit Agreement.
(5) There are also being registered hereunder shares of Common Stock, the
number of which has not been determined, issuable upon conversion of the
Debt Securities and the Preferred Stock registered hereunder, to the
extent any of such Debt Securities or Preferred Stock are by their terms
convertible into Common Stock.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement constitutes the combined prospectuses
and relates to this Registration Statement, which is a new Registration
Statement, and to the following registration statements, each having the
original effective date indicated parenthetically: Registration Statement No.
33-39479 (effective April 12, 1991) and Registration Statement No. 33-39480
(effective April 12, 1991). Each such post-effective amendment shall hereafter
become effective concurrently with the effectiveness of this Registration
Statement in accordance with Section 8(c) of the Securities Act of 1933.
___________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
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 JUNE 27, 1994
PROSPECTUS
NATIONAL CITY CORPORATION
SENIOR/SUBORDINATED DEBT SECURITIES AND PREFERRED STOCK
(WITHOUT PAR VALUE)
---------------------
National City Corporation (the "Company") from time to time may offer up to
$500,000,000 of its debt securities which may be either senior unsecured debt
securities (the "Senior Securities") or subordinated unsecured debt securities
(the "Subordinated Securities") in separate series (the Senior Securities and
the Subordinated Securities being herein referred to collectively as the "Debt
Securities") or may offer, in one or more series, up to 5,000,000 shares of its
Preferred Stock, without par value (the "Preferred Stock"), in amounts, at
prices and on terms to be determined at the time of sale and to be set forth in
supplements to this Prospectus (a "Prospectus Supplement"). The Debt Securities
and the Preferred Stock offered hereby are hereinafter collectively referred to
as the "Securities."
The Securities may be sold directly or through agents designated from time
to time or through underwriters or dealers. See "Plan of Distribution". The
names of any such agents or underwriters involved in the sale of the Securities
in respect of which this Prospectus is being delivered and the applicable
agent's commission, dealer's purchase price or underwriter's discount will be
set forth in the applicable Prospectus Supplement. The Company may sell the
Securities in an offering within the United States ("United States Offering") or
outside the United States ("International Offering").
The specific terms of the Securities in respect of which this Prospectus is
being delivered, such as, where applicable, (i) in connection with the offering
and sale of the Debt Securities, the specific designation, priority, aggregate
principal amount, denomination, maturity, rate (which may be fixed or variable)
and time of payment of interest, if any, terms of conversion, if any, terms for
redemption, if any, at the option of the Company or the holder, terms for
sinking or purchase fund payments, if any, the initial public offering price,
terms relating to temporary or permanent global securities, special provisions
relating to any Debt Securities in bearer form, the duration, offering price,
provisions regarding registration of transfer or exchange, provisions relating
to the payment of any additional amounts, provisions relating to original issue
discount securities, and the other terms in connection with the offering and
sale of the Debt Securities in respect of which this Prospectus is being
delivered, and (ii) in connection with the offering and sale of the Preferred
Stock, the specific number of shares, title, stated value and liquidation
preference of each share, issuance price, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund provisions,
any conversion provisions and other specific terms of the series of the
Preferred Stock in respect of which this Prospectus is being delivered, will be
set forth in the applicable Prospectus Supplement.
---------------------
The Securities may be sold to underwriters for public offering pursuant to
the terms of an offering established at the time of sale. In addition, the
Securities may be sold by the Company directly or through dealers or agents
designated from time to time. The applicable Prospectus Supplement will also set
forth with respect to the sale of the Securities in respect of which this
Prospectus is being delivered the names of the underwriters, dealers or agents,
if any, any applicable commissions or discounts, the net proceeds to the Company
from such sale and any other terms of the offering. Any underwriters, dealers or
agents participating in the offering may be deemed "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Act").
The Securities offered hereby are not savings accounts or savings deposits
and are not insured by the Federal Deposit Insurance Corporation or any
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. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
This Prospectus may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
---------------------
The date of this Prospectus is , 1994
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1993 and the Company's 1993 Annual Report to Stockholders (but only to the
extent such Annual Report to Stockholders is expressly incorporated by reference
into the referenced Form 10-K), Current Reports on Form 8-K dated March 2, 1994
and March 4, 1994 and Quarterly Report on Form 10-Q for the quarter ended March
31, 1994, as filed by the Company with the Securities and Exchange Commission
(the "Commission"), are incorporated in and made a part of this Prospectus by
reference.
All documents filed by the Company 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 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 Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents 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 National
City Corporation, National City Center, 1900 East Ninth Street, Cleveland, Ohio
44114-3484 Attention: Thomas A. Richlovsky, Senior Vice President and Treasurer.
Telephone requests may be directed to 216/575-2126.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information 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, New
York, New York 10048, and 500 West Madison Street, Chicago, Illinois 60601, 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. Reports, proxy statements and other information concerning the Company
can also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
Additional information regarding the Company and the Securities offered
hereby is contained in the Registration Statement and the exhibits relating
thereto, filed with the Commission under the Act. For further information
pertaining to the Company and the 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.
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
<PAGE> 5
THE COMPANY
The Company is a multibank holding company which owns substantially all of
the outstanding capital stock of 10 commercial banks, having a total of 614
banking offices in Ohio, Kentucky and Indiana. At December 31, 1993, the Company
had consolidated total assets of $31.1 billion and total stockholders' equity of
$2.8 billion. Based on consolidated total assets at December 31, 1993, the
Company was approximately the 26th largest commercial banking organization in
the United States. The Company's principal banking subsidiaries are National
City Bank (Cleveland); National City Bank, Columbus; National City Bank,
Kentucky; and National City Bank, Indiana.
The Company's other subsidiaries and divisions offer a wide range of other
financial services, such as credit card, retail payment and airline ticket
processing, brokerage services, trust and investment management, equipment
leasing, merchant and mortgage banking, public finance, venture capital, small
business and community investment, and credit life insurance.
The Company is a legal entity separate and distinct from its subsidiary
banks and other subsidiaries. There are legal limitations on the extent to which
the Company's subsidiary banks can lend or otherwise supply funds to the Company
or certain of its affiliates. Federal law limits the ability of the Company to
borrow from, or sell its securities to, its subsidiary banks unless the loans
are secured by specified collateral and, with respect to the Company or any
non-bank affiliate, such loans and extensions of credit by any subsidiary bank
are generally limited to 10% of the subsidiary bank's capital and surplus and,
with respect to the Company and all of its non-bank affiliates, to an aggregate
of 20% of the subsidiary bank's capital and surplus.
In addition, the payment of dividends to the Company by its national or
state-chartered subsidiary banks is subject to various regulatory limitations.
In general, such banks must obtain the approval of the Comptroller of the
Currency or state banking commissioner, as the case may be, if the total of all
dividends declared by the bank in any calendar year exceeds the bank's net
profits (as defined) for the current year combined with its retained net profits
for the preceding two calendar years. Under applicable rules, the subsidiary
banks could have declared up to $96.0 million of aggregate dividends at December
31, 1993 without prior regulatory approval. The ability of a subsidiary bank to
pay dividends could be affected by its financial condition, including the
maintenance of adequate capital for such bank and other factors. Federal and
state banking regulators also have statutory authority to prohibit a bank from
engaging in what is determined to be a fundamentally unsafe or unsound practice
(as defined) in conducting its business.
Pursuant to certain provisions of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 ("FIRREA"), an FDIC-insured bank 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 bank or (ii) any assistance provided by the FDIC to a commonly
controlled FDIC-insured bank 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.
Such liability to the FDIC is subordinated in right of payment to deposit
liabilities, and to any obligation to depositors or general creditors. FIRREA
also broadened the enforcement powers of the federal banking agencies to include
the power to impose fines and penalties upon all financial institutions. In
addition to the affiliate guarantee provisions described above, Federal Reserve
Board policy requires every bank holding company to act as a source of financial
strength to its subsidiary banks and to commit resources in support of each such
subsidiary.
The Federal Reserve Board, the Comptroller of the Currency and the Federal
Deposit Insurance Corporation have issued substantially similar risk-based and
leverage capital guidelines applicable, respectively, to bank holding companies
as well as national and state-chartered banks. Under the guidelines, such
banking organizations may from time to time be required to maintain capital
above the minimum required levels, whether because of their financial condition
or actual or anticipated growth. If its capital falls below minimum guideline
levels, a banking organization, among other things, may be denied approval to
acquire or establish additional banks or non-bank businesses. Failure of any of
the banks to meet applicable capital guidelines could subject such banks to a
variety of enforcement remedies available to the federal banking
3
<PAGE> 6
agencies including limitations on the ability to pay dividends, issuance by the
Comptroller of a directive to increase capital, and the termination of deposit
insurance by the FDIC. The failure to comply with regulatory capital guidelines
could subject a financial institution to a variety of regulatory actions under
FIRREA, including the termination of deposit insurance by the FDIC. Under the
Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA"),
moreover, an undercapitalized bank must submit a capital restoration plan
guaranteed by its parent company. As of March 31, 1994, all of the Company's
banking subsidiaries were in compliance with applicable risk-based and leverage
capital requirements.
In September 1993, the Federal Reserve, in conjunction with the other
federal bank regulatory agencies, issued proposed revisions to its capital
adequacy guidelines which provide for consideration of interest rate risk in the
overall determination of a bank's minimum capital requirements. The intended
effect of the proposal would be to ensure that bank holding companies
effectively measure and monitor their interest rate risk and that they maintain
adequate levels of capital against it. The Company does not believe that the
consideration of interest rate risk will have a material effect on the Company
or any of its subsidiary banks.
FDICIA and the regulations issued thereunder also have (i) limited the use
of brokered deposits to well capitalized banks and adequately capitalized banks
that have received waivers from the FDIC; (ii) established restrictions on the
permissible investments and activities of FDIC-insured state chartered banks and
their subsidiaries; (iii) implemented uniform real estate and lending rules;
(iv) prescribed standards to limit the risks posed by credit exposure between
banks; (v) amended various consumer banking laws; (vi) increased restrictions
on loans to a bank's insiders; (vii) established standards in a number of areas
to assure bank safety and soundness; (viii) implemented additional requirements
for institutions that have $500 million or more in total assets with respect to
annual independent audits, audit committees, and management reports related to
financial statements, internal controls and compliance with designated laws and
regulations; and (ix) replaced the FDIC's flat-rate deposit insurance
assessment system with a risk-based system under which a bank is placed in one
of nine risk categories, principally on the basis of its capital level and an
evaluation of the bank's risk to the Bank Insurance Fund, and the Bank's
premiums are based on the probability of loss to the FDIC.
The Company continues to analyze the effect of, and address its ongoing
compliance with, the various regulations issued under FDICIA. It is anticipated
that FDICIA and the regulations enacted thereunder, will continue to result in
more limitations on banking activities generally, and increased costs for the
Company and the banking industry because of higher FDIC assessments and higher
costs of compliance, documentation and record keeping.
In addition, certain legislative proposals under consideration, if enacted,
could affect the possibility of changes in the corporate structure of the
Company. The adoption of nationwide interstate banking, for instance, could
impact upon possible acquisitions of control, since such legislation effectively
would expand the potential universe of persons and holding companies which might
undertake to acquire, or be acquired by, the Company. Similarly, the adoption of
nationwide interstate branching could affect the possibility of a business
combination involving one or more of the Company's subsidiary banks, since the
banks could then be merged into one entity with branches in several states. Were
any such business combination to occur, the survivor thereof, if other than the
Company, would become obligated on, and primarily liable for, the Debt
Securities.
The Company is a Delaware corporation, with its executive offices located
at National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114-3484
(telephone 216/575-2000).
4
<PAGE> 7
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus Supplement, the net
proceeds to be received by the Company from the sale of the Securities offered
hereby will be added to the general funds of the Company and will be available
for general corporate purposes, including investments in or advances to existing
or future subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
each of the years in the five-year period ended December 31, 1993.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits................................ 4.51x 3.72x 2.18x 1.91x 2.13x
Including Interest on Deposits................................ 1.81 1.52 1.23 1.20 1.26
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends:
Excluding Interest on Deposits................................ 3.92x 3.25x 2.05x 1.91x 2.13x
Including Interest on Deposits................................ 1.75 1.48 1.22 1.20 1.26
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, income
before income taxes plus fixed charges has been divided by fixed charges. Fixed
charges, excluding interest on deposits, consist of interest on federal funds
purchased, security repurchase agreements, other borrowed funds, corporate
long-term debt, and that portion of rental expense which is deemed
representative of the interest factor. Fixed charges, including interest on
deposits, consist of the same items plus interest on deposits.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will constitute either Senior Securities or
Subordinated Securities of the Company. The Senior Securities and the
Subordinated Securities will be issued under separate indentures (respectively,
the "Senior Indenture" and the "Subordinated Indenture" and, collectively, the
"Indentures"), between the Company and NBD Bank, National Association, as
trustee (the "Trustee"). Pursuant to the Trust Indenture Act of 1939, as
amended, the Trustee will have a "conflicting interest" if the Debt Securities
issued under either Indenture are in default. In such event, the Trustee may be
required to resign its trusteeship under the defaulted Indenture and the Company
would thereupon endeavor to appoint a successor trustee under such Indenture. A
copy of the form of each of the Indentures has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. The following
description of Debt Securities relates to Debt Securities to be issued in
connection with either a United States Offering or an International Offering,
unless otherwise specified in the Prospectus Supplement relating thereto.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indentures, including the definitions
therein of certain terms. Wherever particular Sections or defined terms of the
Indentures are referred to, it is intended that such Sections or definitions
shall be incorporated herein by reference. The following summaries set 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 (the "Offered Debt Securities") 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 Offered Debt Securities. Unless otherwise indicated, Section references
contained herein refer collectively to the Senior Indenture and the Subordinated
Indenture.
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<PAGE> 8
Since the Company is a holding company, the right of the Company, and hence
the right of creditors and stockholders of the Company, including the holders of
the Offered Debt Securities offered hereby, to participate in any distribution
of assets of any subsidiary upon its liquidation, reorganization or otherwise is
necessarily subject to the prior claims of creditors of the subsidiary, except
to the extent that the claims of the Company itself as a creditor of the
subsidiary may be recognized.
GENERAL
The Debt Securities will be unsecured obligations of the Company.
Neither the Indentures nor the Debt Securities will limit or otherwise
restrict the amounts of other indebtedness which may be incurred or other
securities which may be issued by the Company. The Senior Securities will rank
on a parity with all other unsecured unsubordinated indebtedness of the Company
while the indebtedness represented by the Subordinated Securities will be
subordinated as described below under "Subordinated Securities."
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms, where
applicable, of the Offered Debt Securities in respect of which this Prospectus
is being delivered: (1) the title of the Offered Debt Securities; (2) the limit,
if any, on the aggregate principal amount or initial public offering price of
the Offered Debt Securities; (3) the priority of payment of such Offered Debt
Securities; (4) the price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Offered Debt Securities
will be issued; (5) the date or dates on which the Offered Debt Securities will
mature; (6) the rate or rates (which may be fixed or variable) per annum at
which the Offered Debt Securities will bear interest, if any, and the method of
determining the same; (7) the date from which such interest, if any, on the
Offered Debt Securities will accrue, the date or dates on which such interest,
if any, will be payable, the dates on which payment of such interest, if any,
will commence and the Regular Record Dates for such Interest Payment Dates, if
any; (8) the extent to which any of the Offered Debt Securities will be issuable
in temporary or permanent global form and, if so, the identity of the depositary
for such global Offered Debt Security, or the manner in which any interest
payable on a temporary or permanent global Offered Debt Security will be paid;
(9) the dates, if any, on which, and the price or prices at which, the Offered
Debt Securities will, pursuant to any mandatory sinking fund provisions, or may,
pursuant to any optional sinking fund or to any purchase fund provisions, be
redeemed by the Company, and the other detailed terms and provisions of such
sinking and/or purchase funds; (10) the date, if any, after which, and the price
or prices at which, the Offered Debt Securities may, pursuant to any optional
redemption provisions, be redeemed at the option of the Company or the holder
thereof and the other detailed terms and provisions of such optional redemption;
(11) if applicable with respect to Subordinated Securities, terms relating to
the conversion of such Subordinated Securities into Common Stock of the Company
including, without limitation, the time and place at which such Subordinated
Securities may be converted into Common Stock, the conversion price and any
adjustments to such conversion price and any other such provisions as may at the
time be applicable thereto; (12) the denomination or denominations in which such
Offered Debt Securities are authorized to be issued; (13) whether any of the
Offered Debt Securities will be issued in bearer form and, if so, any
limitations on issuance of such bearer Offered Debt Securities (including
exchange for registered Offered Debt Securities of the same series); (14)
information with respect to book-entry procedures; (15) whether any of the
Offered Debt Securities will be issued as Original Issue Discount Securities;
(16) each office or agency where, subject to the terms of the applicable
Indenture, such Offered Debt Securities may be presented for registration of
transfer, exchange or, if applicable, conversion; (17) any other terms of the
series (which will not be inconsistent with the provisions of the applicable
Indenture); (18) the currencies or currency units in which such Offered Debt
Securities are issued and in which the principal of, interest on and additional
amounts, if any, in respect of such Offered Debt Securities will be payable;
(19) whether the amount of payments of principal of or interest on such Offered
Debt Securities may be determined with reference to an index, formula or other
method (which index, formula or method may, but need not be, based on a
currency, currencies, currency unit or units or composite currency or
currencies) and the manner in which such amounts shall be determined; (20)
whether the Company or a holder may elect payment of the principal of or
interest on such Offered Debt Securities in a currency, currencies, currency
unit or units or composite currency other than that in which such Offered Debt
Securities are denominated or stated to be payable, the period or periods within
which, and the
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<PAGE> 9
terms and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the currency, currencies,
currency unit or units or composite currency in which such Offered Debt
Securities are denominated or stated to be payable and the currency, currencies,
currency unit or units or composite currency in which such Offered Debt
Securities are to be so payable; (21) if other than the Trustee, the identity of
the Security Registrar and/or Paying Agent; (22) if applicable, the defeasance
of certain obligations by the Company pertaining to Offered Debt Securities of
the series; (23) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that Offered
Debt Security (or one or more predecessor Offered Debt Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary global
Offered Debt Security on an Interest Payment Date will be paid if other than in
the manner provided in the related Indenture; (24) whether and under what
circumstances the Company will pay additional amounts as contemplated by Section
1004 of the related Indenture (the term "interest", as used in this Prospectus,
shall include such additional amounts on such Offered Debt Securities to any
holder who is not a United States person (as defined below) (including any
modification in the definition of such term as contained in the Indenture as
originally executed) in respect of any tax, assessment or governmental charge)
and, if so, whether the Company will have the option to redeem such Offered Debt
Securities rather than pay such additional amounts (and the terms of any such
option); and (25) any other terms of such Offered Debt Securities.
The Indentures do not limit the aggregate principal amount of the Debt
Securities that may be issued thereunder or of any particular series of such
Debt Securities and the Indentures provide that, in addition to the Debt
Securities, additional Debt Securities may be issued thereunder from time to
time in one or more series (Section 301). All of the Debt Securities issued
under each of the Indentures will rank equally and ratably with any additional
Debt Securities issued under such Indenture.
The Debt Securities may be issued as Original Issue Discount Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their face
amount. In the event of an acceleration of the maturity of any Original Issue
Discount Security, the amount payable to the holder for such Original Issue
Discount Security upon such acceleration will be determined in accordance with
the applicable Prospectus Supplement, the terms of such security and the
applicable Indenture, but will be an amount less than the amount payable at the
maturity of the principal of such Original Issue Discount Security. Special
federal income tax and other considerations relating thereto will be described
in the applicable Prospectus Supplement.
ACCELERATION OF MATURITY
If any Event of Default with respect to Debt Securities of any series at
the time outstanding shall occur and be continuing, then and in every such case
the Trustee or the holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series may declare the principal amount or,
if the Debt Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series of all Debt Securities of that series to be due and payable immediately
by a notice in writing to the Company (and to the Trustee if given by the
holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before a judgment or
decree based on such acceleration has been obtained by the Trustee, the holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
such acceleration if all Events of Default, except, in the case of Senior
Securities, the non-payment of principal of that series which has become due
solely by such declaration of effectiveness, have been cured or waived as
provided in the Indentures (Section 502). Reference is made to the Prospectus
Supplement relating to each series of the Debt Securities which are Original
Issue Discount Securities for the particular provisions relating to acceleration
of the Maturity of a portion of the principal amount of such Original Issue
Discount Securities upon the occurrence of an Event of Default and the
continuation thereof.
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REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of the Offered Debt Securities will be issued in registered form only,
without coupons. The Indentures, however, provide that the Company may also
issue the Debt Securities in bearer form only, or in both registered and bearer
form. Any Debt Securities issued in bearer form shall have interest coupons
attached, unless issued as zero coupon securities. The Debt Securities in bearer
form shall not be offered, sold, resold or delivered in connection with their
original issuance in the United States or to any United States person other than
offices located outside the United States of certain United States financial
institutions. As used in this "Description of the Debt Securities", "United
States person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any estate or trust, the income of which is
subject to United States federal income taxation regardless of its source, and
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction. Purchasers of any Debt Securities issued in bearer form
will be subject to certification procedures and may be affected by certain
limitations under United States tax laws. Such procedures and limitations will
be described in the Prospectus Supplement relating to the offering of the Debt
Securities in bearer form.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Offered Debt Securities will be issued in denominations of $1,000 or any
integral multiple thereof. No service charge will be made for any transfer or
exchange of the Offered Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Unless otherwise described in the Prospectus Supplement relating thereto,
the principal, premium, if any, and interest, if any, of or on the Offered Debt
Securities will be payable, and the transfer of the Offered Debt Securities will
be registrable, at the corporate trust office of the Trustee, provided that
payment of interest may be made at the option of the Company by check mailed to
the address appearing in the Security Register of the person in whose name such
Registered Security is registered at the close of business on the Regular Record
Date (Sections 305 and 307).
The Indentures do not contain any terms which would afford protection to
the holders of the Debt Securities issued thereunder in the event of a
recapitalization, a change of control, a highly leveraged transaction or a
restructuring involving the Company that results in a downgrade of the Company's
public debt rating.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, and premium, if any, and interest, if any, on any Offered Debt
Securities issued in bearer form will be made, subject to any applicable laws
and regulations, at such office outside the United States as specified in the
Prospectus Supplement and as the Company may designate from time to time, at the
option of the holder by check or by transfer to an account maintained by the
payee with a bank located outside the United States. Unless otherwise indicated
in the applicable Prospectus Supplement, payment of interest and certain
additional amounts on any Offered Debt Securities issued in bearer form will be
made only against surrender of the coupon relating to such Interest Payment
Date. No payment with respect to any Debt Security issued in bearer form will be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States.
GLOBAL SECURITIES
The Offered Debt Securities of a series may be issued in whole or in part
in the form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the Prospectus Supplement relating to such series. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for individual
certificates evidencing Debt Securities in definitive form represented thereby,
a Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or
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another nominee of such Depositary or by such Depositary or any such nominee to
a successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to a series
of Offered Debt Securities will be described in the Prospectus Supplement
relating to such series.
RESTRICTIVE COVENANTS
The Senior Indenture contains a covenant by the Company that, except as
otherwise provided below, the Company will not sell, assign, pledge, transfer or
otherwise dispose of, or permit the issuance of, or permit a Subsidiary to sell,
assign, pledge, transfer or otherwise dispose of, any shares of Capital Stock of
any Subsidiary or any securities convertible into Capital Stock of any
Subsidiary which is: (a) a Principal Constituent Bank; or (b) a Subsidiary which
owns shares of Capital Stock or any securities convertible into Capital Stock of
a Principal Constituent Bank; provided, however, that such covenant does not
prohibit (i) any dispositions made by the Company or any Subsidiary (A) acting
in a fiduciary capacity for any Person other than the Company or any Subsidiary
or (B) to the Company or any of its wholly owned (except for directors'
qualifying shares and except for approximately 0.5% of the Voting Stock of the
First National Bank of Ashland owned by persons other than the Company)
Subsidiaries or (ii) the merger or consolidation of a Principal Constituent Bank
with and into a Constituent Bank or the merger or consolidation of any Principal
Constituent Bank with and into any other Principal Constituent Bank. Such
covenant also does not prohibit sales, assignments, pledges, transfers,
issuances or other dispositions of shares of Capital Stock of a corporation
referred to in (a) or (b) above where: (i) the sales, assignments, pledges,
transfers, issuances or other dispositions are made, in the minimum amount
required by law, to any Person for the purpose of the qualification of such
Person to serve as a director; or (ii) the sales, assignments, pledges,
transfers, issuances or other dispositions are made in compliance with an order
of a court or a regulatory authority of competent jurisdiction or as a condition
imposed by any such court or authority to the acquisition by the Company,
directly or indirectly, of any other corporation or entity; or (iii) in the case
of a disposition or issuance of shares of Capital Stock or any securities
convertible into Capital Stock of a Principal Constituent Bank, or sales of
Capital Stock or any securities convertible into Capital Stock of any Subsidiary
included in (b) above, the sales, assignments, pledges, transfers, issuances or
other dispositions are for fair market value (as determined by the Board of
Directors of the Company and the Subsidiary disposing of such shares or
securities, such determination being evidenced by a Board Resolution) and, after
giving effect to such disposition and to any potential dilution (if the shares
or securities are convertible into Capital Stock), the Company and its directly
or indirectly wholly owned (except for directors' qualifying shares)
Subsidiaries will own directly not less than 80% of the Voting Stock of such
Principal Constituent Bank or Subsidiary; or (iv) a Principal Constituent Bank
sells additional shares of Capital Stock to its stockholders at any price, so
long as immediately after such sale the Company owns, directly or indirectly, at
least as great a percentage of the Voting Stock of such Principal Constituent
Bank as it owned prior to such sale of additional shares. A Constituent Bank is
a Subsidiary which is a Bank. A Principal Constituent Bank is a Constituent Bank
the consolidated assets of which constitute 15% or more of the Company's
consolidated assets. At the date of this Prospectus, National City Bank
(Cleveland); National City Bank, Columbus; National City Bank, Kentucky; and
National City Bank, Indiana are the only Principal Constituent Banks (Senior
Indenture, Section 1006).
The Senior Indenture contains a covenant prohibiting the Company from
acquiring Capital Stock of any corporation or acquiring substantially all the
assets and liabilities of any corporation, unless, immediately after such
acquisition, the Company would be in full compliance with such Indenture (Senior
Indenture, Section 1008). In addition, the Senior Indenture contains a covenant
prohibiting the Company from creating or permitting any liens upon any shares of
Capital Stock of any Constituent Bank to secure any indebtedness without
securing the Senior Securities equally and ratably with all indebtedness secured
thereby (Senior Indenture, Section 1007).
MODIFICATION AND WAIVER
Each Indenture provides that modifications and amendments may be made by
the Company and the Trustee with the consent of the holders of not less than a
majority in principal amount of the Outstanding
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Debt Securities of each series affected thereby; provided, however, that no such
modifications or amendments may, without the consent of the holder of each
Outstanding Debt Security affected thereby, (a) change the stated maturity date
of the principal of, or any installment of interest on, any Debt Security, (b)
reduce the principal amount thereof, or the rate of interest (if any) thereon,
or additional amounts, if any, in respect of, or any premium payable upon the
redemption of any Debt Security, (c) change the place of payment, coin or
currency in which any Debt Security or any premium or interest thereon is
payable, (d) impair the right to institute suit for the enforcement of any
payment on or after the stated maturity date thereof or, in the case of
redemption, on or after the redemption date, (e) reduce the above-stated
percentage in principal amount of Outstanding Debt Securities of any series, the
consent of the holders of which is required to modify or amend the Indenture,
(f) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of the holders of which is required for waiver of
compliance with certain provisions of the related Indenture or for waiver of
certain defaults, (g) modify (with certain exceptions) any provision of such
Indenture relating to modification and amendment of such Indenture or waiver of
compliance with conditions and defaults thereunder, (h) with respect to the
Subordinated Indenture, alter in any respect the provisions regarding
subordination of the Debt Securities issued thereunder in a manner adverse to
the holders thereof (i) with respect to the Subordinated Securities convertible
into Common Stock, adversely affect the right of conversion, (j) reduce the
principal amount of Original Issue Discount Securities which could be declared
due and payable upon acceleration of maturity thereof, or (k) change the
obligation of the Company to pay additional amounts (Section 902).
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
that series waive, insofar as that series is concerned, compliance by the
Company and the Trustee, with certain restrictive provisions of the Indentures
(Senior Indenture, Section 1011; Subordinated Indenture, Section 1008). 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 that series
waive any past default under the applicable Indenture with respect to that
series, except a default in the payment of the principal of (and premium, if
any) or interest on or additional amounts payable in respect of any Debt
Security of such series or in respect of a covenant or provision which under the
terms of the applicable Indenture cannot be modified or amended without the
consent of the holder of each Outstanding Debt Security of such series affected
(Section 513).
Modification and amendment of the Indentures may be made by the Company and
the Trustee without the consent of any holder for any of the following purposes:
(i) to evidence the succession of another Person to the Company; (ii) to add to
the covenants of the Company for the benefit of the holders of all or any series
of Debt Securities; (iii) to add Events of Default; (iv) to add or change any
provisions of any of the Indentures to facilitate the issuance of Bearer
Securities; (v) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities as set forth in the applicable
Indenture; (vi) to establish the form or terms of Debt Securities of any series
and any related coupons; (vii) to provide for the acceptance of appointment by a
successor Trustee; (viii) to cure any ambiguity, defect or inconsistency in the
applicable Indenture, provided such action is not inconsistent with the
provisions of the applicable Indenture and does not adversely affect the
interests of holders of Debt Securities of any series in any material respect
under such Indenture; (ix) to modify, eliminate or add to the provisions of any
of the Indentures to such extent as is necessary to conform to the obligations
of the Company and the Trustee under the applicable Indenture to the Trust
Indenture Act of 1939, as amended (Section 901); or (x) to make provision for
the conversion rights of the holders of the Debt Securities in certain events
(Subordinated Indenture, Section 901(10)).
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of the
Outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under each of the Indentures, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination and that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be declared to
be due and payable upon a declaration of acceleration pursuant to
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the terms of such Original Issue Discount Security as of the date of such
determination, and (ii) the principal amount of a Debt Security denominated in a
foreign currency or currencies shall be the U.S. dollar equivalent, determined
by the Company as of the date such Debt Security is originally issued, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Debt Security; and (iii)
Debt Securities owned by the Company, or any other obligor upon the Debt
Securities or any Affiliate of the Company or other such obligor, shall be
disregarded and deemed not to be outstanding (Section 101).
ADDITIONAL PROVISIONS
Each of the Indentures provides that the Trustee will be under no
obligation (subject to the duty of such Trustee during a default thereunder to
act with the required standard of care) to exercise any of its rights or powers
under the related Indenture at the request or direction of any of the holders,
unless such holders shall have offered such Trustee reasonable indemnity
(Section 602). Subject to such provisions for indemnification of the Trustee,
the holders of a majority in principal amount of the Outstanding Debt Securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on such Trustee, with respect to the Debt
Securities of such series (Section 512).
No holder of any Debt Security of any series will have the right to
institute any proceeding, judicial or otherwise, with respect to the Indenture
under which such holder's Debt Securities were issued for any remedy thereunder,
unless: (a) such holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to the Debt Securities of
such series; (b) the holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
Trustee; (c) the Trustee shall not have received from the holders of a majority
in principal amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request; and (d) the Trustee shall have failed
to institute such proceeding within 60 days after its receipt of such notice,
request and offer of indemnity (Section 507). However, the holder of any Debt
Security will have an absolute and unconditional right to receive payment of the
principal of (and premium, if any), interest on, if any, or any additional
amounts in respect of such Debt Security on or after the due dates expressed in
such Debt Security and to institute suit for the enforcement of any such payment
(Section 508).
The Company is required to furnish to the Trustee annually a statement as
to performance or fulfillment of certain of its obligations under the applicable
Indenture and as to any default in such performance or fulfillment (Section
1005).
REGARDING THE TRUSTEE
The Company and its subsidiaries maintain deposit accounts and conduct
various banking transactions with the Trustee.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the Company
and will rank pari passu with all outstanding and future senior indebtedness of
the Company.
EVENTS OF DEFAULT
The following will be Events of Default under the Senior Indenture with
respect to the Debt Securities of any series issued thereunder: (a) failure to
pay principal of or premium, if any, on any Senior Security of that series when
due; (b) failure to pay any interest or any additional amounts on any Senior
Security of that series when due, and continuance of such default for 30 days;
(c) failure to deposit any sinking fund payment, when due, in respect of any
Senior Security of that series; (d) failure to perform any other covenant or
warranty of the Company in such Indenture or Senior Securities (other than a
covenant or warranty included in the
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Indenture solely for the benefit of a series of Senior Securities other than
that series), continued for 90 days after written notice as provided in the
Indenture; (e) acceleration of indebtedness in principal amount in excess of
$5,000,000 for money borrowed by the Company or any Principal Constituent Bank
under the terms of the instrument under which such indebtedness is issued or
secured, if such acceleration is not annulled, or such indebtedness is not
discharged, within 30 days after written notice as provided in the Indenture;
(f) certain events in bankruptcy, insolvency or reorganization of the Company or
any Principal Constituent Bank; and (g) any other Event of Default provided with
respect to Senior Securities of that series (Section 501).
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Company and will rank in priority of payment with outstanding and future
indebtedness of the Company as set forth below.
SUBORDINATION
During the continuance beyond any applicable grace period of any default
with respect to Senior Indebtedness (as defined below), no payment of principal
of and interest on the Subordinated Securities shall be made by the Company
until payment in full of all principal of and premium and interest on such
Senior Indebtedness. In addition, upon any distribution of assets of the Company
upon any dissolution, winding up, liquidation or reorganization, the payment of
the principal of and interest on the Subordinated Securities is to be
subordinated to the extent provided in the Subordinated Indenture (Subordinated
Indenture, Article Fifteen).
For purposes of the preceding paragraph, the term "Senior Indebtedness"
will be defined to mean the principal of, and premium, if any, and interest on,
all indebtedness of the Company, whether outstanding on the date of execution of
the Subordinated Indenture or thereafter incurred or created, except such
indebtedness as is by its terms expressly stated to be not superior in right of
payment to the Subordinated Securities or to rank pari passu or is identified in
a Board Resolution of the Company or any indenture supplemental to the
Subordinated Indenture as not superior in right of payment nor to rank pari
passu with the Subordinated Securities (Section 101). As of March 31, 1994, the
Company had approximately $161 million principal amount of debt which would
constitute Senior Indebtedness.
EVENT OF DEFAULT
An Event of Default will be defined under the Subordinated Indenture with
respect to Debt Securities of any series issued thereunder as certain events of
bankruptcy, insolvency or reorganization of the Company or any Principal
Constituent Bank.
The Subordinated Indenture does not provide for any right of acceleration
of the payment of the principal of a series of Subordinated Securities upon a
default in the payment of principal or interest or a default in the performance
of any covenant or agreement in the Subordinated Securities of a particular
series or in the Subordinated Indenture. In the event of a default in the
payment of interest or principal, the holder of a Subordinated Security (or the
Trustee under the Subordinated Indenture on behalf of the holders of all of the
series of Subordinated Securities so affected) may, subject to certain
limitations and conditions, seek to enforce payment of such interest or
principal.
CONVERSION
If any Subordinated Security is to be convertible into Common Stock
("Convertible Subordinated Securities"), certain terms and provisions with
respect thereto will be set forth in a Convertible Subordinated Security
Prospectus Supplement (a "Convertible Prospectus Supplement"). To the extent
that the description set forth herein is inconsistent with such terms and
provisions, such terms and provisions shall govern with respect to any
Convertible Subordinated Security.
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Except as set forth in the applicable Convertible Prospectus Supplement,
the holders of Convertible Subordinated Securities will be entitled at any time
on or prior to the close of business on the date set forth in the applicable
Convertible Prospectus Supplement, subject to prior redemption, to convert such
Convertible Subordinated Securities or portions thereof (which are $1,000 or
integral multiples thereof) into Common Stock of the Company at the conversion
price set forth on the cover page of such Convertible Prospectus Supplement. No
adjustment will be made upon conversion of any Convertible Subordinated Security
for interest accrued thereon or for dividends on any Common Stock issued. If any
Convertible Subordinated Security is converted between a record date for the
payment of interest and the next succeeding interest payment date, such
Convertible Subordinated Security must be accompanied by funds equal to the
interest payable to the registered holder on such interest payment date on the
principal amount so converted. The Company is not required to issue fractional
interests in Common Stock upon conversion of Convertible Subordinated Securities
and, in lieu thereof, will pay a cash adjustment based upon the market price of
the Common Stock on the last business day prior to the date of conversion. In
the case of Convertible Subordinated Securities called for redemption,
conversion rights will expire at the close of business on the redemption date.
Except as set forth in the applicable Convertible Prospectus Supplement,
the conversion price is subject to adjustment as set forth in the Subordinated
Indenture in certain events, including the issuance of dividends on the
Company's Common Stock payable in its Common Stock; subdivisions, combinations
and certain reclassifications of the Common Stock; certain consolidations,
mergers and sales of the property of the Company; the issuance to all holders of
Common Stock of certain rights or warrants entitling them to subscribe for
Common Stock at less than the then current market price (as defined in the
Subordinated Indenture) per share of the Common Stock; and the distribution to
all holders of Common Stock of evidences of indebtedness or of securities of the
Company or of assets (other than cash dividends or cash distributions payable
out of consolidated net earnings or retained earnings). No adjustment in the
conversion price will be required unless such adjustment would require a change
of at least 1% in the price then in effect; provided however, that any
adjustment that would otherwise be required to be made shall be carried forward
and taken into account in any subsequent adjustment. 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 carrying the
right to purchase any of the foregoing, in exchange for cash, property or
services. In case of the reclassification or change in the outstanding shares of
Common Stock, or the consolidation or merger of the Company with or into another
corporation which is effected in such a way that holders of Common Stock are
entitled to receive stock, securities or property (including cash) with respect
to or in exchange for Common Stock, or the sale or conveyance of its property as
an entirety or substantially as an entirety to another corporation, a
supplemental indenture shall be executed providing that the holder of a
Convertible Subordinated Security shall have the right to convert such
Convertible Subordinated Security into the kind and amount of shares of stock or
other securities or property (including cash) receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock which would have been issuable upon
conversion of such Convertible Subordinated Security immediately prior thereto.
Except as set forth in the applicable Convertible Prospectus Supplement,
any Convertible Subordinated Securities called for redemption, unless
surrendered for conversion on or before the close of business on the redemption
date, are subject to being purchased from the holder of such Convertible
Subordinated Securities at the redemption price by one or more broker-dealers or
other purchasers who may agree with the Company to purchase such Convertible
Subordinated Securities and convert them into Common Stock of the Company.
In the event of a taxable distribution to holders of Common Stock that
results in any adjustment of the conversion price, the holders of the
Convertible Subordinated Securities may, in certain circumstances, be deemed to
have received a distribution subject to federal income tax as a dividend. See
the Prospectus Supplement or Supplements relating to such Securities.
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DESCRIPTION OF THE PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement and the extent, if any, to
which such general provisions may apply to the Preferred Stock so offered will
be described in the Prospectus Supplement relating to such series of the
Preferred Stock. The description of certain provisions of the Preferred Stock
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 Designation relating to each series of the Preferred Stock.
GENERAL
Under the Company's Restated Certificate of Incorporation, as amended (the
"Charter"), the Board of Directors of the Company is authorized without further
stockholder action to provide for the issuance of up to 5,000,000 shares of
Preferred Stock in one or more series, with such voting powers, designations,
preferences, rights, qualifications, limitations and restrictions, as shall be
set forth in resolutions providing for the issue thereof. The Company currently
has outstanding 771,460 shares of Preferred Stock.
As described under "Depositary Shares", the Company may, at its option,
elect to offer depositary shares ("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 Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Depositary (as defined below).
Since the Company is a holding company, the right of the Company, and hence
the right of creditors and stockholders of the Company, to participate in any
distribution of assets of any subsidiary upon its liquidation, reorganization or
otherwise is necessarily subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of the Company itself as a creditor
of the subsidiary may be recognized.
The Preferred Stock will, when issued, be fully paid and non-assessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Stock, each series of the Preferred Stock will rank on a
parity in all respects with each other series of the Preferred Stock.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of the Preferred Stock will be National City Bank (Cleveland).
The following statements are brief summaries of certain provisions that
will be contained in the Certificate of Designation authorizing the issuance of
a series of the Preferred Stock. These statements do not purport to be complete
and are qualified in their entirety by reference to such Certificate of
Designation, the form of which will be filed as an exhibit to the Registration
Statement, and to the Charter. The resolutions set forth in the Certificate of
Designation will be adopted by a duly authorized committee of the Board of
Directors prior to the issuance of a series of the Preferred Stock and such
Certificate of Designation will be filed with the Secretary of State of the
State of Delaware as soon thereafter as reasonably practicable.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when and as declared by the Board of Directors of the Company, out of assets of
the Company legally available for payment, cash dividends at such rates and on
such dates as are set forth in the Prospectus Supplement relating to such series
of the Preferred Stock. Dividends may or may not be cumulative as set forth in
the Prospectus Supplement. Each dividend will be payable to holders of record as
they appear on the stock register of the Company on the Record Dates fixed by
the Board of Directors of the Company.
If there shall be outstanding shares of any other series of preferred stock
ranking junior to or on a parity with any series of the Preferred Stock as to
dividends, no dividends shall be declared or paid or set aside for payment on
any such other series for any period unless full cumulative (if applicable)
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set aside for
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such payment on such series of the Preferred Stock for all dividend payment
periods terminating on or prior to the date of payment of such dividends. If
dividends on any series of the Preferred Stock and on any other series of
preferred stock ranking on a parity as to dividends with such series of the
Preferred Stock are in arrears, in making any dividend payment on account of
such arrears, the Company shall make payments ratably upon all outstanding
shares of such series of the Preferred Stock and shares of such other series of
preferred stock in proportion to the respective amounts of dividends in arrears
on such series of the Preferred Stock and on such other series of preferred
stock to the date of such dividend payment. Holders of shares of any series of
the Preferred Stock shall not be entitled to any dividend, whether payable in
cash, property or stock, in excess of full cumulative (if applicable) dividends
on such series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments which may be in arrears.
Unless full cumulative (if applicable) dividends on all outstanding shares
of any series of the Preferred Stock shall have been paid or declared and set
aside for payment for all past dividend payment periods, no dividend (other than
a dividend in Common Stock or in any other stock ranking junior to such series
of the Preferred Stock as to dividends and upon liquidation) shall be declared
upon the Common Stock or upon any other stock ranking junior to such series of
the Preferred Stock as to dividends and upon liquidation, nor shall any Common
Stock or any other stock of the Company ranking junior to or on a parity with
such series of the 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 Company (except by conversion into or exchange for
stock of the Company ranking junior to such series of the Preferred Stock as to
dividends and upon liquidation).
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary dissolution, liquidation or
winding up of the Company, the holders of each series of the Preferred Stock
will be entitled to receive and to be paid out of assets of the Company
available for distribution to its stockholders, before any payment or
distribution is made to holders of Common Stock or any other class of stock
ranking junior to such series of the Preferred Stock upon liquidation, a
liquidating distribution in an amount per share as set forth in the Prospectus
Supplement relating to such series of the Preferred Stock plus accrued and
unpaid dividends. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of such series of the
Preferred Stock will have no right or claim to any of the remaining assets of
the Company. If, upon any voluntary or involuntary dissolution, liquidation or
winding up of the Company, the amounts payable with respect to the Preferred
Stock of any series and any other shares of stock of the Company ranking as to
any such distribution on a parity with the Preferred Stock of such series are
not paid in full, the holders of the Preferred Stock of such series and of such
other shares will share ratably in any such distribution of assets of the
Company in proportion to the full respective distributable amounts to which they
are entitled. Neither the sale of all or substantially all the property or
business of the Company, nor the merger or consolidation of the Company into or
with any other corporation shall be deemed to be a voluntary or involuntary
dissolution, liquidation or winding up of the Company.
REDEMPTION
Any series of the Preferred Stock may be redeemable, in whole or in part,
at the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon the terms, at the times and at the
redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event that full cumulative (if applicable) dividends on any series
of the Preferred Stock have not been paid or declared and set apart for payment,
such series of the Preferred Stock may not be redeemed in part and the Company
may not purchase or acquire any shares of such series otherwise than pursuant to
a purchase or exchange offer made on the same terms to all holders of such
series of the Preferred Stock.
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VOTING RIGHTS
The Preferred Stock of a series shall have such voting rights as shall be
provided in the Prospectus Supplement relating thereto; provided, however, that
in no event shall any holder of shares of any series of the Preferred Stock be
entitled to more than one vote for each such share. As more fully described
under "Depositary Shares," if the Company elects to provide for the issuance of
Depositary Shares representing fractional interests in a share of such series of
the Preferred Stock, the 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.
CONVERSION RIGHTS
The Preferred Stock of a series shall have such conversion rights as shall
be provided in the Prospectus Supplement relating thereto.
DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) 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 Stock which will be
filed with the Commission at or prior to the time of the sale of such series of
the Preferred Stock.
GENERAL
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than full shares of Preferred Stock. In the
event such option is exercised, the Company 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 Stock) in
a share of a particular series of the Preferred Stock as described below.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal 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 Depositary. Subject to the terms of the Deposit Agreement, each
holder of a Depositary Share will be entitled, in proportion to the applicable
fractional interest in a share of Preferred Stock underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock 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 Company, 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 Company's expense.
Upon surrender of Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called for
redemption), the holder of such Depositary Shares evidenced thereby will be
entitled to delivery at such office, to or upon his order, of the number of
whole shares of the Preferred Stock and any money or other property represented
by such Depositary Shares. Partial shares of the Preferred Stock will not be
issued. If 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 shares of the Preferred Stock 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. The holders of shares of the Preferred
Stock thus withdrawn will not thereafter be entitled to deposit such shares
under the Deposit Agreement or to receive Depositary Shares therefor. Unless
otherwise indicated in the applicable Prospectus
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Supplement, the Company does not expect that there will be any public trading
market for shares of the Preferred Stock represented by Depositary Shares except
as represented by such Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock 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 feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, 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 Company to holders of
the Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, such 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 Stock 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 Stock. Whenever the Company redeems shares of the Preferred
Stock held by the Depositary, the Depositary will redeem, as of the same
redemption date, the number of Depositary Shares relating to shares of the
Preferred Stock so redeemed. If less than all of the Depositary Shares are to be
redeemed, such 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, Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of such 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 Depositary Receipts evidencing such Depositary
Shares.
CONVERSION
With respect to a series of the Preferred Stock underlying Depositary
Shares that is convertible into Common Stock, a holder of Depositary Receipts
may participate in the conversion in the manner specified in the pertinent
Certificate of Designation for holders of the underlying Preferred Stock. If
Depositary Shares represented by a Depositary Receipt are to be converted in
part only, a new Depositary Receipt or Depositary Receipts will be issued by the
Depositary for any Depositary Shares not to be converted. No fractional shares
of Common Stock will be issued upon conversion, and if such conversion would
result in a fractional share being issued, an amount will be paid in cash by the
Company equal to the value of the fractional interest based upon the closing
price of the Common Stock on the last business day prior to the date of
conversion.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of Depositary
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Shares relating to such Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of the
Preferred Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of the Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and the Company 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 shares of the Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares relating to
such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT 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 Company and the Depositary. 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 Company or the Depositary only if (i)
all outstanding Depositary Shares relating thereto have been redeemed or if
applicable, converted into Common Stock, or (ii) there has been a final
distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidation, dissolution or winding up of the Company and
such distribution has been distributed to the holders of the related Depositary
Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. The Company will
pay charges of the Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock. 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 Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company 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 Company 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
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, 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 Company notice
of its election to do so, and the Company 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
The Board of Directors of the Company is authorized to issue a maximum of
350,000,000 shares of Common Stock. As of March 31, 1994, 151,072,522 shares of
Common Stock were outstanding. Subject to any prior rights of any preferred
stock of the Company then outstanding, holders of the Common Stock are entitled
to receive such dividends as are declared by the Board of Directors of the
Company out of funds legally available therefor. For information concerning
legal limitations on the ability of the Company's banking subsidiaries to supply
funds to the Company, see "The Company." Subject to the rights, if any, of any
preferred stock of the Company then outstanding, all voting rights are vested in
the holders of Common Stock, each share being entitled to one vote. Subject to
any prior rights of any such preferred stock, in the event of liquidation,
dissolution or winding up of the Company, holders of shares of Common Stock are
entitled to receive pro rata any assets distributable to stockholders in respect
of shares held by them. holders of shares of Common Stock do not have any
preemptive rights to subscribe for any additional securities which may be issued
by the Company. The outstanding shares of Common Stock are fully paid and
non-assessable. The transfer agent and registrar for the Common Stock is
National City Bank.
UNITED STATES TAXATION
The following summary of the principal United States federal income tax
consequences of the ownership of the Debt Securities, the Preferred Stock and
Depositary Shares is based on the Internal Revenue Code of 1986, as amended (the
"Code"), existing and proposed United States Treasury Regulations (the "Treasury
Regulations"), and existing administrative and judicial precedent, all as in
effect as of the date hereof, all of which are subject to change at any time,
possibly with retroactive effect. The legal conclusions in this discussion under
the caption "United States Taxation" constitute the opinion of Jones, Day,
Reavis & Pogue, special tax counsel to the Company, which opinion is not binding
upon the Internal Revenue Service (the "IRS") or any other administrative or
judicial agency, authority or tribunal.
The tax summary deals only with Securities held as capital assets by
initial purchasers thereof, and does not deal with purchasers that do not
acquire such Securities as part of the initial distribution or with special
classes of holders, such as dealers in securities or currencies, financial
institutions, tax-exempt organizations, life insurance companies, controlled
foreign corporations or persons holding such Securities as a hedge against
currency risks. It also does not address Debt Securities with a maturity at
issue of 183 days or less that are held by United States Alien holders (as
defined below) and United States holders (as defined below) whose functional
currency is not the U.S. dollar.
Prospective purchasers of Securities should consult their own tax advisors
concerning the application of the United States federal income tax laws to their
particular situations, as well as any tax consequences under the laws of any
other taxing jurisdiction.
UNITED STATES HOLDERS
As used herein, the term "United States holder" means a holder of a
Security who or that is (i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity created or organized in or under the
laws of the United States or of any political subdivision thereof, or (iii) an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
DEBT SECURITIES
Payments of Interest
Interest (including qualified stated interest, as defined under "Original
Issue Discount Securities" below) paid on a Debt Security, whether in U.S.
dollars or a foreign currency (as used in this section "foreign currency"
includes a composite currency), will generally be taxable to a United States
holder as ordinary interest income at the time it accrues or is received
(whether actually or constructively) in accordance with the United States
holder's method of accounting for federal tax purposes. Special rules governing
the treatment of interest paid with respect to Original Issue Discount
Securities (as defined below) are described
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under "Original Issue Discount Securities" below. If payment is made in a
foreign currency, the amount includible in income will be the U.S. dollar value
of the interest payment based on the exchange rate in effect on the date of
receipt or, in the case of an accrual basis United States holder, generally
based on the average exchange rate in effect during the interest accrual period,
in either case regardless of whether the payment is in fact converted into U.S.
dollars. In addition, upon receipt of an interest payment in a foreign currency
(including a payment attributable to accrued but unpaid interest upon the sale,
exchange or retirement of a Debt Security), an accrual basis United States
holder generally will recognize exchange gain or loss (characterized for federal
income tax purposes as ordinary income or loss) measured by the difference
between such average exchange rate and the exchange rate in effect on the date
of receipt.
Original Issue Discount Securities
General. A Debt Security with an issue price that is less than its stated
redemption price at maturity will generally be considered to have been issued at
an original issue discount for federal income tax purposes (an "Original Issue
Discount Security"). The "issue price" of an issue of Debt Securities will be
the first price at which a substantial amount of such Debt Securities is sold to
the public. The "stated redemption price at maturity" of a Debt Security will
equal the sum of all payments to be made thereunder, other than payments of
qualified stated interest (as defined below). As a result, a Debt Security
generally will have original issue discount if it does not provide for payments
exclusively of qualified stated interest. "Qualified stated interest" is stated
interest that is unconditionally payable in cash or in property (other than debt
instruments of the issuer) at least annually at a single fixed rate that
appropriately takes into account the length of the interval between payments.
Applicable Treasury Regulations contain special rules that, in certain
circumstances, may deem some or all of the interest payable on variable rate
debt instruments or debt instruments subject to certain contingencies as
constituting qualified stated interest. If the difference between a Debt
Security's stated redemption price at maturity and its issue price is less than
1/4 of 1 percent of the stated redemption price at maturity multiplied by the
number of complete years to maturity, then the Debt Security will not be
considered to have original issue discount.
United States holders of Original Issue Discount Securities having a
maturity of more than one year from their date of issue are required to include
original issue discount in income as it accrues without regard to when the cash
payments attributable to such income are received. The amount of original issue
discount includible in income by a United States holder of an Original Issue
Discount Security is the sum of the daily portions of original issue discount
for each day during the taxable year or portion of the taxable year in which it
holds such Original Issue Discount Security. The daily portion is determined by
allocating to each day in any accrual period a pro rata portion of the original
issue discount allocable to that accrual period. An "accrual period" is each
period between payment dates (including, if shorter, the period from the issue
date to the first interest payment date and the period from the last interest
payment date to the maturity date), although an accrual period may be of any
length and the accrual periods may vary in length over the term of an Original
Issue Discount Security, provided that each accrual period is no longer than one
year and each scheduled payment of principal or interest occurs either on the
final day of an accrual period or on the first day of an accrual period. The
amount of original issue discount allocable to an accrual period is the excess
of (a) the product of the Original Issue Discount Security's adjusted issue
price at the beginning of such accrual period and its yield to maturity
(determined on the basis of a constant interest rate and compounded at the end
of each accrual period and properly adjusted for the length of the accrual
period) over (b) the amount of qualified stated interest allocable to the
accrual period. The "adjusted issue price" of the Original Issue Discount
Security at the beginning of any accrual period is the sum of the issue price of
such Original Issue Discount Security, plus the accrued original issue discount
for all prior accrual periods, minus any prior payments on the Original Issue
Discount Security that were not qualified stated interest payments.
Under the foregoing rules, United States holders will generally have to
include in income increasingly greater amounts of original issue discount in
successive accrual periods.
It is possible that Debt Securities that (i) bear interest initially at a
fixed rate followed by a variable rate that is not approximately the same as the
initial fixed rate on the date of issue or (ii) bear interest at a variable rate
that is not a single qualified floating rate or objective rate would be subject
to the original issue discount
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rules regardless of the price at which such Debt Securities are issued.
Accordingly, United States holders (including cash basis holders) may be
required to report income in respect of such Debt Securities before the receipt
of cash payments attributable thereto under the rules described above. The
applicable Prospectus Supplement will contain a discussion of any additional
relevant United States federal income tax consequences with respect to an
issuance of variable rate Original Issue Discount Securities.
A United States holder who purchases an Original Issue Discount Security
for an amount that is greater than its adjusted issue price as of the purchase
date and less than or equal to the sum of all amounts payable on the Original
Issue Discount Security after the purchase date other than payments of qualified
stated interest, will be considered to have purchased the Original Issue
Discount Security at an "acquisition premium." Under the acquisition premium
rules, the amount of original issue discount that such United States holder must
include in its gross income with respect to such Original Issue Discount
Security for any taxable year (or portion thereof) in which the United States
holder holds the Original Issue Discount Security will be reduced (but not below
zero) by the portion of the acquisition premium properly allocable to such year.
Optional Redemption. For purposes of determining original issue discount,
if the Company has an option to redeem a Debt Security prior to its stated
maturity, such option will be presumed to be exercised if and on such dates
that, by utilizing any date on which such Debt Security may be redeemed as the
maturity date and the amount payable on such date in accordance with the terms
of such Debt Security (the "redemption price") as the stated redemption price at
maturity, the yield on the Debt Security would be minimized. If such option is
not in fact exercised when presumed to be exercised, the Debt Security would be
treated as if it were redeemed, and a new Debt Security were issued, on the
presumed exercise date for an amount equal to the redemption price.
Acceleration of Maturity. The applicable Prospectus Supplement will contain
a discussion of any additional relevant United States federal income tax
consequences relating to an acceleration of the maturity of an Original Issue
Discount Security.
Short-Term Debt Securities. In general, an individual or other cash method
United States holder of a Debt Security that matures one year or less from its
date of issuance (a "Short-Term Discount Security") is not required to accrue
original issue discount for United States federal income tax purposes unless it
elects to do so. Accrual method United States holders and certain other United
States holders, including banks, regulated investment companies and dealers in
securities, are required to accrue original issue discount on Short-Term
Discount Securities on a straight-line basis unless an election is made to
accrue the original issue discount under the constant yield method (based on
daily compounding). In the case of a United States holder not required and not
electing to include original issue discount in income currently, any gain
realized on the sale, exchange or retirement of the Short-Term Discount Security
will be ordinary income to the extent of the original issue discount accrued on
a straight-line basis through the date of sale, exchange or retirement. United
States holders who are not required to and do not elect to accrue original issue
discount on Short-Term Discount Securities will be required to defer deductions
for interest on borrowings allocable to Short-Term Discount Securities in an
amount not exceeding the deferred income until the deferred income is realized.
Foreign Currency Denominated Original Issue Discount Securities. Original
issue discount for any accrual period on an Original Issue Discount Security
that is denominated in a foreign currency generally will be determined in the
foreign currency and then translated into U.S. dollars based on the average
exchange rate in effect during the interest accrual period. Upon the receipt of
an amount attributable to original issue discount (whether in connection with a
payment of interest or the sale or retirement of an Original Issue Discount
Security), a United States holder generally will recognize exchange gain or loss
(characterized for federal income tax purposes as ordinary income or loss)
measured by the difference between such average exchange rate and the exchange
rate in effect on the date of receipt.
Reporting. The Company is required to report to the IRS the amount of
original issue discount accrued on Original Issue Discount Securities held of
record by United States holders other than certain exempt holders, such as
corporations and tax-exempt organizations. The amount required to be reported by
the
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Company may not be equal to the amount of original issue discount required to be
reported as taxable income by a United States holder of such Original Issue
Discount Securities.
Debt Securities Purchased at a Market Discount or Premium
Market Discount. If a United States holder purchases a Debt Security, other
than an Original Issue Discount Security, for an amount that is less than its
issue price or, in the case of an Original Issue Discount Security, for an
amount that is less than both (i) its issue price and (ii) its issue price plus,
as of the purchase date, the aggregate amount of original issue discount
includible in the gross income of all holders of such Original Issue Discount
Security before such United States holder's purchase of the Original Issue
Discount Security, the amount of the difference will be treated as "market
discount," unless such difference is less than a specified de minimis amount.
Under the market discount rules, a United States holder will be required to
treat any partial principal payment (or, in the case of an Original Issue
Discount Security, any payment that does not constitute qualified stated
interest) on, or any gain realized on the sale, exchange, retirement or other
disposition of, a Debt Security as ordinary income to the extent of the lesser
of (i) the amount of such payment or realized gain or (ii) the market discount
that has not previously been included in income and is treated as having accrued
on such Debt Security at the time of such payment or disposition. Market
discount will be considered to accrue ratably during the period from the date of
acquisition to the maturity date of the Debt Security, unless the United States
holder elects to accrue market discount over such period on a constant yield
method. The amount of accrued market discount will be reduced by the amount of
any partial principal payment (or, in the case of an Original Issue Discount
Security, any payment that does not constitute qualified stated interest)
included in gross income under the market discount rules.
A United States holder may be required to defer the deduction of all or a
portion of the interest paid or accrued on any indebtedness incurred or
maintained to purchase or carry a Debt Security with market discount until the
maturity of the Debt Security or its earlier disposition in a taxable
transaction. The amount so deferred is that portion of any interest expense on
such indebtedness, net of the interest (including original issue discount)
includible in gross income, but only to the extent of the allocable portion of
the accrued market discount.
A United States holder may elect to include market discount in income
currently as it accrues (either ratably or on a constant yield method using
semiannual compounding), in which case the rules described above regarding the
treatment as ordinary income of gain upon the disposition of the Debt Security
and upon the receipt of certain cash payments and regarding the deferral of
interest deductions will not apply. Generally, such currently included market
discount is treated as ordinary income for United States federal income tax
purposes.
In the case of a Debt Security that is denominated in a foreign currency
and that is purchased with market discount, (i) market discount is determined in
units of the foreign currency, (ii) accrued market discount taken into account
upon the receipt of any partial principal payment or upon the sale, exchange,
retirement or other disposition of the Debt Security (other than accrued market
discount taken into account currently) is translated into U.S. dollars at the
exchange rate on such payment or disposition date (and no part of such accrued
market discount is treated as exchange gain or loss) and (iii) accrued market
discount currently includible in income by a United States holder for any
accrual period is translated into U.S. dollars on the basis of the average
exchange rate in effect during such accrual period, and the exchange gain or
loss is determined upon the receipt of any partial principal payment or upon the
sale, exchange, retirement or other disposition of the Debt Security in the
manner described above with respect to computation of exchange gain or loss on
accrued interest.
Amortizable Bond Premium. A United States holder that purchases a Debt
Security for an amount in excess of the amount payable at maturity will be
considered to have purchased such Debt Security at a premium equal to such
excess and may elect to amortize such premium using a constant yield method over
the term of the Debt Security. Any such election will apply to all bonds (other
than bonds the interest on which is excludible from gross income) held by the
United States holder at the beginning of the first taxable
22
<PAGE> 25
year to which the election applies or thereafter acquired by the United States
holder, and is irrevocable without the consent of the IRS.
With respect to a Debt Security that is denominated in a foreign currency
and that is purchased with amortizable bond premium, such premium is determined
in the relevant foreign currency and reduces interest income in units of the
foreign currency. Although not entirely clear, a United States holder should
recognize exchange gain or loss equal to the difference between the U.S. dollar
value of the bond premium amortized with respect to a period, determined on the
date the interest attributable to such period is received, and the U.S. dollar
value of the bond premium determined on the date of acquisition of the Debt
Security.
Purchase, Sale, Exchange and Retirement of the Debt Securities
A United States holder's adjusted tax basis in a Debt Security will be its
U.S. dollar cost (which, in the case of a Debt Security purchased with a foreign
currency, will be the U.S. dollar value of the purchase price on the date of
purchase), increased by the amount of any original issue discount or accrued
market discount included in the United States holder's income with respect to
the Debt Security and reduced by the amount of any amortizable bond premium, by
principal payments received by the United States holder and, in the case of
Original Issue Discount Securities, by the amount of any interest payments on
the Debt Security that are not qualified stated interest payments. A United
States holder will recognize gain or loss on the sale, exchange or retirement of
a Debt Security equal to the difference between the amount realized on the sale,
exchange or retirement and the United States holder's adjusted tax basis in the
Debt Security. The amount realized on a sale, exchange or retirement for an
amount in foreign currency will be the U.S. dollar value of such amount on the
date of sale, exchange or retirement. Except to the extent described in the next
paragraph and under "Short-Term Debt Securities" above, gain or loss recognized
on the sale, exchange or retirement of a Debt Security will be capital gain or
loss and will be long-term capital gain or loss if the Debt Security was held
for more than one year.
The portion of any gain or loss recognized by a United States holder on the
sale, exchange or retirement of a Debt Security denominated in a foreign
currency that is attributable to fluctuations in exchange rates will be treated
as ordinary income or loss.
Exchange of Amounts in Other Than U.S. Dollars
Foreign currency received as interest on, or on the sale, exchange or
retirement of, a Debt Security will have a tax basis equal to the U.S. dollar
value of such foreign currency, determined at the time such interest is received
or at the time of such sale, exchange or retirement. Foreign currency that is
purchased will generally have a tax basis equal to its U.S. dollar cost. Any
gain or loss recognized on a sale or other disposition of a foreign currency
(including its subsequent use to purchase the Debt Securities or upon exchange
for U.S. dollars) will be ordinary income or loss. However, a United States
holder who converts U.S. dollars to a foreign currency and immediately
thereafter uses that currency to purchase a Debt Security denominated in the
same foreign currency will not recognize gain or loss in connection with such
conversion and purchase.
Conversion of Convertible Subordinated Securities
Except to the extent of cash received in lieu of fractional shares, no gain
or loss will be recognized upon the conversion of a Convertible Subordinated
Security into Common Stock. A United States holder of a Convertible Subordinated
Security converted into Common Stock will generally have a carryover basis in
such shares and the holding period for the Common Stock will include the holding
period of the Convertible Subordinated Security.
The conversion price of a Convertible Subordinated Security may be adjusted
if, among other things, the Company makes certain distributions to its
shareholders. If the Company adjusts the conversion price of the Convertible
Subordinated Securities, holders of the Convertible Subordinated Securities may
be viewed as receiving a deemed distribution; in certain other circumstances,
the absence of such an adjustment may result in a deemed distribution to the
holders of the Common Stock. All or a portion of any such deemed distribution
may be taxable as ordinary dividend income. The applicable Prospectus Supplement
will contain a discussion
23
<PAGE> 26
of any additional relevant United States federal income tax consequences with
respect to Convertible Subordinated Securities.
Indexed Debt Securities
The applicable Prospectus Supplement will contain a discussion of the
additional relevant United States federal income tax consequences, if any, with
respect to any Debt Securities, payments on which (whether interest or
principal) are determined by reference to any index.
Debt Securities with Contingent Payments
The applicable Prospectus Supplement will contain a discussion of the
additional relevant United States federal income tax consequences, if any, with
respect to any Debt Securities that provide for one or more contingent payments
(whether of interest or principal).
Bearer Securities
A United States holder generally will not be entitled to deduct any loss
sustained on the sale or other disposition (including the receipt of principal)
of Bearer Securities (other than Bearer Securities having a maturity of one year
or less from the date of issue), and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities (other than Bearer Securities having a maturity of one year
or less from the date of issue).
Preferred Stock, Depositary Shares and Common Stock
Dividends, if any, paid on the Preferred Stock or Common Stock to a United
States holder will be subject to tax as ordinary income to the extent of the
Company's current or accumulated earnings and profits as computed for federal
income tax purposes. To the extent that the amount of any dividend paid on the
Preferred Stock or Common Stock exceeds the Company's current and accumulated
earnings and profits for federal income tax purposes, such dividend will be
treated first as a nontaxable return of capital that will be applied against and
reduce the adjusted tax basis of the United States holder's Preferred Stock or
Common Stock, as the case may be. Any amount in excess of the United States
holder's adjusted tax basis would then be taxed as capital gain, and will be
long-term capital gain if the United States holder's holding period for the
Preferred Stock or Common Stock, as the case may be, exceeds one year. For
purposes of the remainder of this discussion of federal income tax consequences,
the term "dividend" refers to a distribution out of current or accumulated
earnings and profits and taxed as ordinary income as described above, unless the
context indicates otherwise.
The 70% (and in some cases 80%) dividends received deduction may be
available with respect to dividends paid by the Company to United States holders
that are corporations (or partnerships to the extent they have corporate
partners). However, a corporate United States holder that disposes of shares
within 45 days of their date of acquisition (or 90 days, in the case of
dividends on any Preferred Stock attributable to periods aggregating in excess
of 366 days) cannot claim the dividends received deduction for dividends on such
shares. (These time periods are extended for periods during which the United
States holder's risk of loss with respect to such shares is diminished, for
example, by an offsetting position.) In addition, if a corporation incurs
indebtedness for the purpose of making or carrying a portfolio stock investment
(which would include the Preferred Stock and Common Stock), the 70% (or in some
cases 80%) deduction for dividends received will generally be disallowed with
respect to the dividends on that portion of such stock that was acquired or
carried by means of such indebtedness. The dividends received deduction would
not be available for interest payments on Convertible Subordinated Securities
convertible into Common Stock.
Upon the sale or exchange of shares of the Preferred Stock or Common Stock,
the United States holder will recognize gain or loss measured by the difference
between the amount realized and the adjusted tax basis in such shares. Such gain
or loss will be capital gain or loss and will be long-term capital gain or loss
if the shares were held for more than one year.
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<PAGE> 27
The applicable Prospectus Supplement will contain a discussion of the
additional relevant United States federal income tax consequences, if any, with
respect to the Preferred Stock and the Common Stock.
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Stock 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 Stock. In addition, (i) no gain or loss will
be recognized for federal income tax purposes upon the withdrawal of any
Preferred Stock in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each share of Preferred Stock 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 shares of the Preferred Stock in the hands of an exchanging
owner of Depositary Shares will include the period during which such person
owned such Depositary Shares.
Backup Withholding and Information Reporting
A United States holder may be subject to backup withholding at a rate of
31% on, and information reporting with respect to, payments of principal,
premium or interest (including original issue discount, if any) on, dividends
on, and the proceeds of disposition of, a Debt Security, Preferred Stock,
Depositary Shares or Common Stock. Backup withholding will apply only if the
United States holder (i) fails to furnish its Taxpayer Identification Number
("TIN") which, for an individual, would be his Social Security Number, (ii)
furnishes an incorrect TIN, (iii) is notified by the IRS that it has failed to
properly report payments of interest and dividends or (iv) under certain
circumstances, fails to certify, under penalty of perjury, that it has furnished
a correct TIN and that it has not been notified by the IRS that it is subject to
backup withholding for failure to report interest and dividend payments. Backup
withholding will not apply with respect to payments made to certain exempt
recipients, such as corporations and tax-exempt organizations. United States
holders should consult their tax advisers regarding their qualification for
exemption from backup withholding and the procedure for obtaining such an
exemption.
The amount of any backup withholding from a payment to a United States
holder will be allowed as a credit against such holder's United States federal
income tax liability and may entitle such holder to a refund of federal income
tax, provided that the required information is furnished to the IRS.
UNITED STATES ALIEN HOLDERS
As used herein, the term "United States Alien holder" means any holder that
is not a United States holder.
Income and Estate Tax Consequences
Subject to the discussion of backup withholding below:
(a) If the Debt Securities are offered, sold and delivered, and
principal and interest thereon is paid, in accordance with the terms of the
Indentures, and, in the case of Bearer Securities, in accordance with the
procedures described under "Limitations on Issuance of Bearer Securities,"
payments of principal and any premium and interest (including any original
issue discount) on the Debt Securities by the Company or any of its paying
agents to any United States Alien holder will not be subject to United
States federal tax payable by withholding, provided that, in the case of
interest or original issue discount, (1) the United States Alien holder
does not actually or constructively own 10% or more of the total combined
voting power of all classes of stock of the Company entitled to vote, (2)
the United States Alien holder is not a controlled foreign corporation that
is related to the Company through stock ownership, (3) the United States
Alien holder is not a bank receiving interest described in Code Section
881(c)(3)(A), and (4) if the Debt Security is a Registered Security
(including such Debt Securities that were received in exchange for Bearer
Securities), either (i) the beneficial owner of the Debt Securities
certifies to the Company or its paying agent, under penalties of perjury,
that it is not a United States holder and provides its name and address, or
(ii) a securities clearing organization, bank or other financial
institution that holds customers' securities in the ordinary course of its
trade or business (a
25
<PAGE> 28
"financial institution") and holds the Debt Securities on behalf of the
beneficial owner certifies to the Company or its paying agent, under
penalties of perjury, that such statement has been received from the
beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof;
(b) A United States Alien holder will not be subject to United States
federal tax payable by withholding on gain realized on the sale or exchange
of a Debt Security or a share of Preferred Stock, a Depositary Share or a
share of Common Stock (including the receipt of cash in lieu of fractional
shares upon conversion of a Convertible Subordinated Security) unless
(1)(i) such holder is an individual who is present in the United States for
183 days or more in the taxable year of disposition and either such
individual has a "tax home" (as defined in Code Section 911(d)(3)) in the
United States or the gain is attributable to an office or other fixed place
of business maintained by such individual in the United States or (ii) such
gain is effectively connected with the conduct by such holder of a trade or
business in the United States, or (2) with respect to a United States Alien
holder of Convertible Subordinated Securities, the Preferred Stock,
Depositary Shares or Common Stock, the Company is a United States real
property holding corporation within the meaning of Code Section 897(c)(2)
and such holder owns, or owned during an applicable five-year period,
actually or constructively, Convertible Subordinated Securities, the
Preferred Stock, Depositary Shares or Common Stock with a value exceeding
5% of the fair market value of the applicable class of the Company's stock;
(c) A United States Alien holder will not be subject to United States
federal income tax upon the conversion of a Convertible Subordinated
Security or Preferred Stock or Depositary Shares into shares of Common
Stock except with respect to the receipt of cash in lieu of fractional
shares by certain holders described in clause (b)(1) and (2) above;
(d) Dividends paid or constructively paid on shares of Preferred
Stock, Depositary Shares or shares of Common Stock to a United States Alien
holder will be subject to (i) United States federal tax payable by
withholding at a rate of 30% (or lower rate pursuant to an applicable
income tax treaty between the United States and the United States Alien
holder's country of residence), if the dividends are not effectively
connected with a United States trade or business of the United States Alien
holder, or (ii) net United States federal income taxation at progressive
rates of tax if the dividends are effectively connected with the conduct by
the United States Alien holder of a trade or business in the United States.
In addition, an adjustment in the conversion price of the Convertible
Subordinated Securities or the Preferred Stock may be viewed as a deemed
distribution, all or a portion of which may be taxable as a dividend that
is subject to the appropriate U.S. federal tax regime described in the
previous sentence;
(e) A Debt Security or coupon held by an individual who at the time of
his death is not a citizen or resident of the United States will not be
subject to United States federal estate tax as a result of such
individual's death if the individual does not actually or constructively
own 10% or more of the total combined voting power of all classes of stock
of the Company entitled to vote and the income on the Debt Securities or
coupon would not have been effectively connected with the conduct of a
trade or business by the individual in the United States; and
(f) Shares of the Preferred Stock, Depositary Shares or Shares of
Common Stock held by an individual at the time of his death (or theretofore
transferred subject to certain retained rights or powers) will be subject
to United States federal estate tax unless otherwise provided by an
applicable estate tax treaty.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Information reporting and backup withholding do not apply to payments of
principal, to any premium and interest (including any original issue discount)
made outside the United States by the Company or a paying agent on a Bearer
Security or coupon, to dividend payments made on the Preferred Stock, Depositary
Shares, or Common Stock or to payments made on a Registered Security (including
such Debt Securities that were received in exchange for Bearer Securities) if
the certification described in clause (a)(4) under "Income and Estate Tax
Consequences" above is received or, in the case of dividend payments, if such
payments are made
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<PAGE> 29
to a foreign address, provided, in each case, that the payor does not have
actual knowledge that the holder is a United States person.
In addition, if payments are collected outside the United States by a
foreign office of a custodian, nominee or other agent acting on behalf of a
beneficial owner of a Bearer Security or coupon, such custodian, nominee or
other agent will not be required to deduct backup withholding from payments made
to such owner. However, if the custodian, nominee or other agent is a United
States person, a controlled foreign corporation for United States tax purposes
or a foreign person 50% or more of whose gross income is effectively connected
with the conduct of a trade or business within the United States for a specified
three-year period, information reporting will be required with respect to
payments made to such owner unless such custodian, nominee or other agent has
documentary evidence in its files of the owner's foreign status and has no
actual knowledge to the contrary, or the owner otherwise establishes an
exemption. The United States Treasury Department has indicated that it is
studying the possible application of backup withholding in the case of United
States and United States-related custodians, nominees and agents.
Payment of the proceeds from the sale of a Security to or through a foreign
office of a broker will not be subject to information reporting or backup
withholding, except that if the broker is a United States person, a controlled
foreign corporation or a foreign person 50% or more of whose gross income is
effectively connected with the conduct of a trade or business within the United
States for a specified three-year period, information reporting will apply to
such payments unless such custodian, nominee or other agent has documentary
evidence in its files of the owner's foreign status and has no actual knowledge
to the contrary, or the owner otherwise establishes an exemption. Payment of the
proceeds from a sale of a Security to or through the United States office of a
broker is subject to information reporting and backup withholding unless the
holder or beneficial owner certifies as to its non-United States status or
otherwise establishes an exemption from information reporting and backup
withholding. The United States Treasury Department has indicated that it is
studying the possible application of backup withholding in the case of foreign
offices of United States and United States-related brokers.
Any amounts withheld from a payment to a United States Alien holder under
the backup withholding rules will be allowed as a credit against such holder's
United States federal income tax liability and may entitle such holder to a
refund of federal income tax, provided that the required information is
furnished to the IRS.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
To avoid potential adverse United States federal tax consequences to
holders of the Debt Securities, Bearer Securities (including Securities in
permanent global form that are either Bearer Securities or exchangeable for
Bearer Securities) may not be offered or sold during the restricted period (as
defined in Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) within the
United States or to United States persons (each as defined below) other than to
an office located outside the United States of a United States financial
institution (as defined in Treasury Regulations Section 1.165-12(c)(1)(v)),
purchasing for its own account or for resale or for the account of certain
customers, that provides a certificate stating that it agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Code and the Treasury
Regulations thereunder, or to certain other persons described in Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(1)(iii)(B). Moreover, such Bearer
Securities may not be delivered in connection with their sale during the
restricted period within the United States. Any distributor (as defined in
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4)) participating in the
offering or sale of Bearer Securities must covenant that it will not offer or
sell during the restricted period any Bearer Securities within the United States
or to United States persons (other than the persons described above), it will
not deliver in connection with the sale of Bearer Securities during the
restricted period any Bearer Securities within the United States and it has in
effect procedures reasonably designed to ensure that its employees and agents
who are directly engaged in selling the Bearer Securities are aware of the
restrictions on offers and sales described above. No Bearer Security (other than
a temporary global Security) may be delivered, nor may interest be paid on any
Bearer Security until receipt by the Company of (i) a Depository Tax
Certification in the case of temporary global Securities or (ii) an Owner Tax
Certification in all other cases as described above under "Description of Debt
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<PAGE> 30
Securities -- Temporary Global Securities." Bearer Securities will bear a legend
to the following effect: "Any United States person who holds this obligation
will be subject to limitations under the United States income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
Purchasers of Bearer Securities may be affected by certain United States
tax laws. See "United States Taxation -- United States holders -- Bearer
Securities."
As used in this section "United States person" means any citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States and any estate or
trust the income of which is subject to United States federal income taxation
regardless of its source, and "United States" means the United States of America
(including the States thereof and the District of Columbia) and its possessions.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents (which agents may be affiliates of the Company) that solicit or
receive offers on behalf of the Company or through dealers or through a
combination of any such method of sale. Any such underwriter, dealer or agent
involved in the offer and sale of the Securities is named in the Prospectus
Supplement.
The Securities may be distributed in one or more transactions from time to
time at a fixed price or prices (which may be changed from time to time) at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Company also may, from
time to time, authorize agents of the Company acting on a best efforts or other
basis to solicit or receive offers to purchase the Securities upon the terms and
conditions as are set forth in the Prospectus Supplement. In connection with the
sale of the Securities, underwriters may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of Securities for whom they may act as
agent. Underwriters may sell the Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities (including agents only
soliciting or receiving offers to purchase Securities on behalf of the Company)
may be deemed to be underwriters, and any discounts and commissions received by
them and any profit realized by them on resale of the Securities may be deemed
to be underwriting discounts and commissions, under the Act. Underwriters,
dealers and agents may be entitled, under agreements entered into with the
Company, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Act.
Certain of the underwriters and their associates may be customers of,
engage in transactions with and perform services for the Company in the ordinary
course of business.
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<PAGE> 31
LEGAL OPINIONS
The validity of the Securities will be passed upon for the Company by
Jones, Day, Reavis & Pogue, North Point, 901 Lakeside Avenue, Cleveland, Ohio
44114, and for any underwriters or agents by Brown & Wood, One World Trade
Center, New York, New York 10048. Jones, Day and certain members of the firm are
indebted to and have other banking and trust relationships with certain
affiliated banks of the Company. Members of Jones, Day and members of their
families own shares of Common Stock of the Company.
EXPERTS
The consolidated financial statements of the Company included in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1993, have
been audited by Ernst & Young, independent auditors, as set forth in their
report thereon appearing therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
29
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are expenses estimated pursuant to Item 511 of
Regulation S-K (except for the SEC Registration Fee), subject to future
contingencies, of the expenses to be incurred by the registrant in connection
with the issuance and distribution of securities being registered:
<TABLE>
<S> <C>
SEC Registration Fee ................... $ 51,725
Legal Fees and Expenses ................ 70,000
Listing Fees ........................... 60,000
Accounting Fees and Expenses ........... 10,000
Blue Sky Fees and Expenses ............. 25,000
Printing and Engraving Fees ............ 80,000
Rating Agency Fees ..................... 20,000
Trustees' Fees ......................... 10,000
Miscellaneous .......................... 10,000
--------
Total ......................... $336,725
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "GCL")
empowers a Delaware corporation to indemnify any person who was or is or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such person who was or is, or
is threatened to be made, a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor under the same conditions, except that no indemnification is
permitted in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and to the
extent the Court of Chancery of the State of Delaware
II-1
<PAGE> 33
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or other such court shall
deem proper. To the extent such person has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, the corporation must indemnify
him against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith. The indemnification and advancement
of expenses provided for under, or granted pursuant to, Section 145 of the GCL
are not exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Section 145 of the GCL
also provides that a corporation may purchase and maintain insurance on behalf
of a person against any liability asserted against such person whether or not
the corporation would have the power to indemnify such person against such
liability under Section 145 of the GCL.
Article VI of the Registrant's First Restatement of By-Laws provides
for the mandatory indemnification of directors, officers or employees of the
Registrant or any of its subsidiaries and of those persons serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise in
accordance with and to the full extent permitted by the GCL. The Registrant
has purchased liability insurance covering certain liabilities which may be
incurred by the directors, officers, employees and agents of the Registrant
and its subsidiaries in connection with the performance of their duties.
In addition, the Registrant's Restated Certificate of Incorporation,
as permitted by Section 102(d) of the GCL, limits directors' liability to the
Registrant and its stockholders by eliminating liability in damages for breach
of fiduciary duty of care. Article Seventh of the Registrant's Restated
Certificate of Incorporation, as amended, provides that neither the Registrant
nor its stockholders may recover damages from the Registrant's directors or
former directors for breach of their duty of care in the performance of their
duties as directors of the Registrant. As limited by Section 102(b), this
provision cannot, however, have the effect of indemnifying any director or
former director of the Registrant in the case of liability (i) for a breach of
the director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the GCL or (iv) for any transactions for which the
director derived an improper personal benefit.
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<PAGE> 34
ITEM 16. LIST OF EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement:
<TABLE>
<S> <C>
1 .1 Form of Underwriting Agreement
4 .1 Form of Senior Indenture (incorporated by reference to Exhibit 4.1 to Registrant's registration statement on Form
S-3 (File No. 33-39480))
4 .2 Subordinated Indenture dated as of February 1, 1994 between the Company and NBD Bank, National Association, as
trustee (incorporated by reference to Exhibit 4.2 to registrant's Current Report on Form 8-K dated March 2, 1994)
4 .3 Proposed forms of Debt Securities*
4 .4 Form of Certificate of Designation of $ Cumulative Convertible Preferred Stock*
---------
4 .5 Form of $ Cumulative Convertible Preferred Stock Certificate*
----------
4 .6 Form of Deposit Agreement
5 .1 Opinion of Jones, Day, Reavis & Pogue as to the legality of the Debt Securities and Preferred Stock
8 .1 Opinion of Jones, Day, Reavis & Pogue as to tax matters
12.1 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends
23.1 Consent of Ernst & Young (included in Part II of Registration Statement)
23.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibits 5.1 and 8.1)
24.1 Powers of Attorney of certain directors and officers
25.1 Statement of Eligibility and Qualification on Form T-1 regarding Senior Indenture
</TABLE>
II-3
<PAGE> 35
<TABLE>
<S> <C>
26.2 Statement of Eligibility and Qualification on Form T-1 regarding Subordinated Indenture
</TABLE>
___________________
* To be filed by amendment.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit
II-4
<PAGE> 36
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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-5
<PAGE> 37
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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland and the State of Ohio, as of the 27,
day of June, 1994.
NATIONAL CITY CORPORATION
By: Thomas A. Richlovsky
-------------------------
Thomas A. Richlovsky
Senior Vice President
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed as of the 27th, day of June, 1994 by the
following person in the capacities indicated:
Edward B. Brandon* Chairman and Chief Executive Officer
- ---------------------------- (Principal Executive Officer)
Robert G. Siefers* Executive Vice President
- ---------------------------- (Principal Financial Officer)
Thomas A. Richlovsky Senior Vice President and Treasurer
- ---------------------------- (Principal Accounting Officer)
II-6
<PAGE> 38
Sandra H. Austin
James M. Biggar
Charles H. Bowman
Edward B. Brandon
John G. Breen
David A. Daberko
Richard E. Disbrow
Daniel E. Evans
Otto N. Frenzel III A majority of the Board of Directors*
Joseph H. Lemiuex
A. Stevens Miles
Burnell R. Roberts
William R. Robertson
Stephen A. Stietle
Morry Weiss
___________
* David L. Zoeller, Senior Vice President and General Counsel of the
registrant, as attorney-in-fact, signs this document on behalf of the
above-named directors pursuant to powers of attorney duly executed by such
directors and filed with the Securities and Exchange Commission
contemporaneously herewith.
David L. Zoeller
--------------------------
David L. Zoeller
Attorney-in-Fact
II-7
<PAGE> 1
DRAFT 6/24/94
Exhibit 1.1
NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities,
Subordinated Debt Securities,
Preferred Stock and Depositary
Shares Representing Preferred Stock
UNDERWRITING AGREEMENT
Dated: ___________, 199_
<PAGE> 2
NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities,
Subordinated Debt Securities,
Preferred Stock and Depositary
Shares Representing Preferred Stock
UNDERWRITING AGREEMENT
____________, 199_
To the [Underwriter[s]
named in Exhibit A]
[Representative[s] named
in Exhibit A of the
Underwriters named in
Exhibit A]
Dear Sirs:
National City Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its (i) senior debt securities (the "Senior Securities") and/or (ii)
subordinated debt securities (the "Subordinated Securities", and together with
the Senior Securities, the "Debt Securities"), and/or (iii) preferred stock
(the "Preferred Stock"), and/or (iv) depositary shares which represent
fractional interests in the Preferred Stock (the "Depositary Shares"), in one
or more offerings on terms determined at the time of sale and set forth in a
terms agreement in the form of Exhibit A hereto (the "Terms Agreement"). The
Subordinated Securities and Preferred Stock may be convertible into the
Company's Common Stock, par value $4.00 per share (the "Common Stock") as set
forth in the applicable Terms Agreement relating thereto.
The Senior Securities are to be issued under an Indenture to be dated
as of a date subsequent to the date hereof (the "Senior Indenture"), between
the Company and NBD Bank, National Association ("NBD"), as trustee (the "Senior
Trustee"). The Subordinated Securities are to be issued under an Indenture
dated as of February 1, 1994, as amended or supplemented (the "Subordinated
Indenture"), between the Company and NBD, as trustee (the "Subordinated
Trustee", and together with the Senior Trustee, the "Trustees"). The Senior
Indenture and the Subordinated Indenture are collectively referred to herein as
the
<PAGE> 3
"Indentures". The Senior Securities and the Subordinated Securities may have
varying designations, maturities, rates and times of payment of interest, if
any, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms (in the case of Subordinated Securities) and other specific
terms as set forth in the applicable Terms Agreement relating thereto.
Each issue of Preferred Stock may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price,
dividend rate or rates (or method of calculation), dividend payment dates,
redemption or sinking fund requirements, conversion and exchange provisions and
any other variable terms as set forth in the applicable Terms Agreement
relating to such Preferred Stock. If the Preferred Stock is to be offered in
the form of Depositary Shares, the Preferred Stock will, when issued, be
deposited by the Company against delivery of depositary receipts (the
"Depositary Receipts") to be issued under a deposit agreement (the "Deposit
Agreement"), to be entered into among the Company, a depositary institution
(the "Depositary") and the holders from time to time of the Depositary Receipts
issued thereunder. The Depositary Receipts will evidence the Depositary Shares
and each Depositary Share will represent a fractional interest (as set forth in
the applicable Terms Agreement) in a Share of a particular series of Preferred
Stock. The Preferred Stock, together, if applicable, with the Depositary
Shares are hereinafter referred to as the "Shares".
The Debt Securities and Shares, to be issued and sold as specified in
the applicable Terms Agreement, shall collectively be referred to herein as the
"Offered Securities". As used herein, unless the context otherwise requires,
the term "Underwriters" shall mean the firm or firms specified as Underwriter
or Underwriters in the applicable Terms Agreement relating to the Offered
Securities and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Offered Securities, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as specified in the applicable
Terms Agreement.
Whenever the Company determines to make an offering of Offered
Securities, the Company will enter into a Terms Agreement providing for the
sale of the applicable Offered Securities to, and the purchase and offering
thereof by, the Underwriters. The Terms Agreement relating to the Offered
Securities shall specify the type of Offered Securities to be issued, the names
of the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount or number of Offered
Securities which each such Underwriter severally agrees to purchase, the price
at which the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the time and
2
<PAGE> 4
place of delivery and payment and other specific terms. In addition, each
Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Offered Securities to cover
over-allotments, if any, and the amount of Offered Securities subject to such
option (the "Option Securities"). As used herein, the term "Offered
Securities" shall include the Option Securities, if any. The Terms Agreement
may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Offered
Securities will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon the Company and each Underwriter
participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
33- ), including a prospectus, relating to the Offered Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the Commission. As provided in
Section 3(a), a prospectus supplement reflecting the terms of the Offered
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared and will be filed pursuant to Rule 424 under the 1933
Act. Such prospectus supplement, in the form first filed after the date of the
applicable Terms Agreement pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement". Such registration statement (constituting Post
Effective Amendment No. 1 to the Company's registration statement on Form S-3
(File No. 33-39479) and Post Effective Amendment No. 1 to the Company's
registration statement on Form S-3 (File No. 33-39480)), as amended at the date
of the applicable Terms Agreement, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which
the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as ' supplemented by the Prospectus Supplement, in either case including
the documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to each of the Underwriters that:
3
<PAGE> 5
(i) The Company meets the requirements for use of Form
S-3 under the 1933 Act and, as of the applicable effective date of the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus Supplement and any
amendment thereto, (A) the Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder (the " 1933 Act
Regulations"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations"); (B) neither the Registration
Statement nor any amendment or supplement thereto contained or will
contain an untrue statement of a material fact or omitted or will omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (C) neither the
Prospectus nor any amendment or supplement thereto included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that this representation and warranty does not
apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through you expressly for use in the
Registration Statement or the Prospectus. At the Closing Time, the
applicable Indenture, if any, will comply in all material respects
with the requirements of the 1939 Act and the 1939 Act Regulations.
(ii) The documents incorporated by reference or deemed to
be incorporated in the Prospectus pursuant to Item 12 of Form S-3
under the 1933 Act, at the time they were or hereafter are filed with
the Commission, complied in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, as of the
applicable effective date of the Registration Statement and any
amendment thereto, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company; and upon execution
4
<PAGE> 6
and delivery of each Terms Agreement by the Company, such Terms
Agreement shall have been duly authorized, executed and delivered by
the Company.
(v) The financial statements incorporated by reference in
the Registration Statement present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their operations and
cash flows for the periods specified; except as otherwise stated in
the Registration Statement and except, with respect to any interim
financial statements, for normal year end adjustments and limited note
presentations, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; and the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement; the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
(the "Bank Holding Company Act"); and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition (financial or otherwise), or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries, considered as one
enterprise, and (C) except for regular quarterly dividends on the
Company's Common Stock, and the Company's 8% Cumulative Convertible
Preferred Stock, $250 liquidation preference per share,
5
<PAGE> 7
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its Capital Stock.
(viii) Each subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 405 of Regulation C of the
1933 Act Regulations (a "Significant Subsidiary") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; except as otherwise stated in the Registration
Statement, all of the issued and outstanding capital stock of each
such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable (subject to the provisions of
Section 55 of Title 12 of the United States Code in case of
Significant Subsidiaries which are national banking associations) and,
except for director's qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(ix) The Offered Securities conform in all material
respects to the summary descriptions thereof contained or incorporated
by reference in the Prospectus and such summary descriptions conform
to the rights set forth in the instruments defining the same.
(x) The authorized, issued and outstanding capital stock
of the Company set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus) is accurate as of the date
indicated in such section; the shares of issued and outstanding Common
Stock have been duly authorized and validly issued and are fully paid
and non-assessable; the Common Stock conforms to all statements
relating thereto contained in the Registration Statement.
(xi) If the Offered Securities include Preferred Stock,
such Preferred Stock shall, on the date of the Terms Agreement
relating to such Offered Securities, be duly
6
<PAGE> 8
authorized and, when such Preferred Stock is duly executed and
delivered and issued and paid for in accordance with this Agreement
and the applicable Terms Agreement, such Preferred Stock will have
been validly issued, fully paid and non-assessable; no holder thereof
will be subject to personal liability by reason of being such a
holder; such Preferred Stock will not be subject to the preemptive
rights of any stockholder of the Company; and all corporate action
required to be taken for the authorization, issue and sale of such
Preferred Stock has been, or at the Closing Time will be, validly and
sufficiently taken; and, if the Offered Securities include Preferred
Stock that is to be represented by Depositary Shares, then, upon
deposit by the Company of such Preferred Stock with the Depositary
pursuant to the Deposit Agreement and the execution by the Depositary
of the Depositary Receipts evidencing the Depositary Shares, such
Depositary Shares shall represent legal and valid interests in such
Preferred Stock; and, if the Offered Securities include Preferred
Stock that is convertible into Common Stock ("Convertible Preferred
Stock"), then such Preferred Stock shall be convertible into Common
Stock in accordance with its terms and the terms of a Convertible
Preferred Stock Prospectus Supplement.
(xii) If the Offered Securities include Debt Securities,
such Debt Securities shall, on the date of the Terms Agreement
relating to such Offered Securities, be duly authorized for issuance
and sale pursuant to this Agreement and, when such Debt Securities are
duly executed, authenticated and delivered pursuant to the provisions
of this Agreement and the applicable Indenture against payment of the
consideration therefor in accordance with this Agreement and the
applicable Terms Agreement, such Debt Securities will be valid and
legally binding obligations of the Company enforceable in accordance
with their terms, except as enforceability thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles and
will be entitled to the benefits of the applicable Indenture; and the
Indentures conform in all material respects to all statements relating
thereto contained in the Prospectus; and, if the Offered Securities
include Subordinated Securities that are convertible into Common Stock
("Convertible Subordinated Securities"), then such Subordinated
Securities shall be convertible into Common Stock in accordance with
their terms and the terms of a Convertible Subordinated Security
Prospectus Supplement (a "Convertible Prospectus Supplement").
(xiii) If applicable, the shares of Common Stock issuable
upon conversion of any issue of Convertible Subordinated Securities or
Convertible Preferred Stock have
7
<PAGE> 9
been duly and validly authorized and, prior to the issuance of such
issue, reserved for issuance upon such conversion by all necessary
corporate action and such shares of Common Stock, when issued upon
such conversion, will be duly and validly issued and will be fully
paid and non-assessable, and the issuance of such shares upon such
conversion will not be subject to preemptive rights.
(xiv) If the Offered Securities include Debt Securities,
the applicable Indenture has been duly authorized by the Company, will
be substantially in the form filed as an exhibit to the Registration
Statement and, when duly executed and delivered by the Company and the
Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles; and the summary
descriptions of the applicable Indenture set forth in the Prospectus
conforms in all material respects to the provisions contained in the
applicable Indenture.
(xv) If the Offered Securities include Depositary Shares,
the Deposit Agreement will have been duly authorized, executed and
delivered by the Company prior to the issuance of the Offered
Securities, and, when duly executed and delivered by the Company and
the Depositary, will constitute a valid and binding obligation of the
Company enforceable in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles.
(xvi) If the Offered Securities include Depositary Shares,
upon execution and delivery thereof pursuant to the terms of the
Deposit Agreement, the persons in whose names the Depositary Receipts
are registered will be entitled to the rights specified therein and in
the Deposit Agreement, except as enforceability of such rights may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equity principles.
(xvii) Neither the Company nor any Significant Subsidiary is
in violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which it or
8
<PAGE> 10
any of them may be bound or to which any of the property or assets of
the Company or of any of its Significant Subsidiaries may be subject;
and the execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the Indentures and the Deposit Agreement
by the Company, the issuance and delivery of the Offered Securities,
the consummation by the Company of the transactions contemplated in
this Agreement, the applicable Terms Agreement and in the Registration
Statement, and compliance by the Company with the terms of this
Agreement, the applicable Terms Agreement, the Indentures and the
Deposit Agreement have been duly authorized by all necessary corporate
action and do not and will not conflict with or constitute a breach of
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its Significant Subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its Significant Subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
applicable law, administrative regulation or administrative or court
decree.
(xviii) Each authorization, approval, consent or license of
any government, governmental instrumentality or court, domestic or
foreign (other than under the 1933 Act, the 1939 Act and the
securities or blue sky laws of the various states), which is required
for (A) the valid authorization, issuance, sale and delivery of the
Offered Securities or (B) the execution, delivery and performance of
this Agreement, the applicable Terms Agreement, the Indentures or the
Deposit Agreement by the Company has been received.
(xix) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which is required to
be disclosed in the Registration Statement (other than as disclosed
therein), or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or which might materially and adversely
affect the properties or assets of the Company and its subsidiaries
considered as one enterprise, or, which might materially or adversely
affect the consummation of this Agreement or any Terms Agreement; all
pending legal or governmental proceedings to which the
9
<PAGE> 11
Company or any Significant Subsidiary is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business of the Company or any
Significant Subsidiary, are considered in the aggregate, not material;
and there are no contracts or documents of the Company or any
Significant Subsidiary which are required to be filed or incorporated
by reference as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been so filed or
incorporated by reference.
(xx) The Company and its Significant Subsidiaries possess
such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, and neither the Company nor
any of its Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(xxi) The Company and the Significant Subsidiaries own or
possess, or can acquire on reasonable terms, adequate trademarks,
service marks and trade names necessary to conduct the businesses now
operated by them, and neither the Company nor any of its Significant
Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any trademarks, service marks or trade names which, singly
or in the aggregate, would result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xxii) No authorization, approval, consent, order or decree
of any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the Offered
Securities, except such as may be required under the 1933 Act or the
1933 Act Regulations (which requirements have been met), the 1939 Act
or state securities laws.
(xxiii) The Company has not taken and will not take, directly
or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Offered Securities.
10
<PAGE> 12
(b) Any certificate signed by any duly authorized officer
of the Company or any Significant Subsidiary and delivered to you or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
Section 2. Purchase and Sale. (a) The several commitments of the
Underwriters to purchase Offered Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the Terms Agreement applicable
to any Offered Securities, an option to the Underwriters named in such Terms
Agreement, severally and not jointly, to purchase up to the amount of Option
Securities set forth therein at the same price per security as is applicable to
the Offered Securities. Such option, if granted, will expire 30 days after the
date of the Terms Agreement applicable to the Offered Securities, and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Offered Securities upon notice by you to the Company
setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment
and delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by you, but shall not be later than
seven full business days and not earlier than two full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, unless otherwise agreed upon by you and the Company. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Offered Securities each such Underwriter has agreed to purchase,
as set forth in the applicable Terms Agreement, bears to the total number of
Offered Securities, subject to such adjustments as you in your discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of, any
Offered Securities to be purchased by the Underwriters pursuant to the
applicable Terms Agreement shall be made at the office of Brown & Wood, One
World Trade Center, New York, New York 10048, or at such other place as shall
be agreed upon by you and the Company in the applicable Terms Agreement, at
10:00 A.M., New York City time, on the fifth business day (unless postponed in
accordance with the provisions of Section 10) following the
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<PAGE> 13
date of the applicable Terms Agreement or at such other time as shall be agreed
upon by you and the Company (each such time and date being referred to as a
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price
for, and delivery of certificates representing such Option Securities, shall be
made at the above-mentioned offices of Brown & Wood, or at such other place as
shall be agreed upon by you and the Company, on each Date of Delivery as
specified in the notice from you to the Company. Unless otherwise specified in
the applicable Terms Agreement, payment shall be made to the Company by
certified or official bank check or checks in New York Clearing House or
similar next day funds payable to the order of the Company against delivery to
you for the respective accounts of the Underwriters of the Offered Securities
to be purchased by them. Such Offered Securities, certificates for such
Offered Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, shall be in such denominations and registered in such names as you
may request in writing at least two full business days prior to the applicable
Closing Time or Date of Delivery, as the case may be. Such Offered Securities,
certificates or Depositary Receipts, as applicable, will be made available for
examination and packaging by you not later than 10:00 A.M. on the business day
prior to Closing Time or Date of Delivery, as the case may be.
Section 3. Certain Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) (i) If reasonably requested by you in connection with
the offering of the Offered Securities, the Company will prepare a preliminary
prospectus supplement containing such information concerning the Offered
Securities as you and the Company deem appropriate and (ii) promptly following
the execution of each Terms Agreement, the Company will prepare a Prospectus
Supplement that complies with the 1933 Act and the 1933 Act Regulations and
that sets forth the number or principal amount of Offered Securities covered
thereby, the names of the Underwriters participating in the offering and the
number or principal amount of Offered Securities which each severally has
agreed to purchase, the name of each Underwriter, if any, acting as
representative in connection with the offering, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the selling concession and reallowance, if any,
and such other information concerning the Offered Securities as you and the
Company deem appropriate in connection with the offering of the Offered
Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act
and will furnish to the Underwriters named therein as many copies of any
preliminary
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<PAGE> 14
prospectus supplement, the Prospectus and the Prospectus Supplement as you
shall reasonably request.
(b) The Company will notify each of you immediately, and
confirm the notice in writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective amendment),
(ii) of the mailing or the delivery or EDGAR transmission to the Commission for
filing of any supplement to the Prospectus or any document to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the Commission, (iv)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will give you notice of its intention to file
or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish
you with copies of any such amendment or supplement or other document proposed
to be filed a reasonable amount of time prior to such proposed filing and will
not file any such amendment or supplement or other document or use any such
prospectus to which you or counsel shall object.
(d) The Company will deliver to you as many signed copies of
the registration statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as
you may reasonably request and will also deliver to each of you a conformed
copy of the Registration Statement and of each amendment thereto for each of
the Underwriters.
(e) If at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered Securities any
event shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or counsel for the Company, to
further amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser
or if it shall be necessary, in the opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
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<PAGE> 15
Regulations, the Company will promptly prepare and file with the Commission,
such amendment or supplement, whether by documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or omission to
make the Registration Statement or the Prospectus comply with such
requirements.
(f) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities and, if applicable, the Common
Stock to be issued upon conversion of Convertible Subordinated Securities or
Convertible Preferred Stock, for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Offered Securities and, if applicable, the
Common Stock, have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for as long as may be required for the distribution of
the Offered Securities. The Company will promptly advise you of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Offered Securities or, if applicable, the Common Stock
into which Convertible Subordinated Securities or Convertible Preferred Stock
are convertible, for sale in any such state or jurisdiction or the initiating
or threatening of any proceeding for such purpose.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) 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.
(i) If and to the extent specified in the applicable Terms
Agreement, the Company will use its best efforts to effect the listing of the
Offered Securities on the New York Stock Exchange by the Closing Time with
respect to the applicable Terms Agreement.
(j) For such period of time as is specified in the applicable
Terms Agreement, commencing on the date of such Terms Agreement, the Company
will not, without the prior written
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<PAGE> 16
consent of the Underwriter, directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, any Offered Securities or,
if such Terms Agreement relates to Convertible Subordinated Securities or
Convertible Preferred Stock, any Common Stock or any security convertible into
Common Stock (except for Common Stock issued pursuant to reservations or
agreements or any employee stock option plan, stock ownership plan or dividend
reinvestment plan).
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and any
applicable Terms Agreement, including (a) the printing and filing of the
Registration Statement, as originally filed and of each amendment thereto, (b)
the reproduction and delivery of this Agreement and each Terms Agreement, (c)
the preparation, issuance and delivery of the certificates for Offered
Securities to the Underwriters, (d) the fees and disbursements of the Company's
counsel and accountants, (e) the qualification of the Offered Securities under
securities laws in accordance with Section 3(g) hereof, including filing fees
and fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and the
Legal Investment Survey (copies of which shall be furnished to the Company
promptly after preparation by such counsel), (f) the printing and delivery to
the Underwriters of copies of the Registration Statement and all amendments
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (g) the reproduction and delivery to the
Underwriters of copies of the Indentures, if applicable, and the Blue Sky
Survey and any Legal Investment Survey, (h) the fees of rating agencies, (i)
the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc., and (j) the fees and
expenses, if applicable, incurred in connection with the listing of the Offered
Securities and the Common Stock issuable upon conversion of any Convertible
Subordinated Securities or Convertible Preferred Stock.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(a) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for such
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Offered Securities pursuant to
any Terms Agreement are subject to the accuracy of the representations and
warranties of the Company herein contained, to the accuracy of the statements
of the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all
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<PAGE> 17
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, (ii) the rating assigned by any nationally recognized
statistical rating organization to any debt securities or preferred stock of
the Company as of the date of the applicable Terms Agreement shall not have
been lowered since the execution of such Terms Agreement nor shall any such
rating organization have publicly announced that it has placed any debt
securities or preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading or (iii) there shall not have come to the
attention of such of you as may be named in the applicable Terms Agreement any
facts that would cause such of you to believe that the Prospectus, together
with the applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Offered Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(b) At the applicable Closing Time you shall have
received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of Jones, Day, Reavis & Pogue, counsel for the Company, in form and
substance satisfactory to such of you as may be named in the applicable Terms
Agreement to the effect that:
(i) If the Offered Securities include Debt Securities,
the applicable Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid and
binding agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
(ii) If the Offered Securities include Debt Securities,
such Debt Securities are in the form contemplated by the applicable
Indenture, and have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in
the applicable Indenture and delivered against payment pursuant to
this Agreement, as supplemented by the applicable Terms Agreement,
will be valid and binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or
affecting
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<PAGE> 18
enforcement of creditors' rights or by general equity principles, and
except further as enforcement thereof may be limited by requirements
that a claim (or a foreign currency judgment in respect of such claim)
be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, and will
be entitled to the benefits of the applicable Indenture.
(iii) The Offered Securities and, if applicable, the
Indenture, the Common Stock and the Deposit Agreement, conform in all
material respects to the descriptions thereof in the Prospectus and
the applicable Prospectus Supplement.
(iv) If the Offered Securities include Debt Securities,
the applicable Indenture is qualified under the 1939 Act.
(v) If the Offered Securities include Convertible
Subordinated Securities or Convertible Preferred Stock, the shares of
Common Stock issuable upon conversion of such Convertible Subordinated
Securities or Convertible Preferred Stock have been duly authorized
and reserved for issuance upon such conversion by all necessary
corporate action and such shares, when issued upon such conversion
will be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such conversion
will not be subject to preemptive rights.
(vi) If the Offered Securities include Depositary Shares,
the applicable Deposit Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid and
binding agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
(vii) If the Offered Securities include Depositary Shares,
such Depositary Shares are in the form contemplated by the applicable
Deposit Agreement, and have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the applicable Deposit Agreement and delivered against
payment pursuant to this Agreement, as supplemented by the applicable
Terms Agreement, will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or by
general equity principles, and except further as enforcement thereof
may be limited by requirements that a claim (or a foreign currency
judgment in respect of such claim) be converted
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<PAGE> 19
into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and will be entitled to the
benefits of the applicable Deposit Agreement.
(viii) This Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company.
(ix) The Registration Statement is effective under the
1933 Act and, to the best of their knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(x) At the time the Registration Statement became
effective and as of the date of the applicable Terms Agreement, the
Registration Statement (other than the financial statements and
schedules and other financial or statistical data included or
incorporated by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations and, where
applicable, the 1939 Act.
(xi) The information in the Prospectus under the caption
"United States Taxation" to the extent that such information
constitutes matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by them and is
correct in all material respects.
(xii) No authorization, approval, consents, order or decree
of any court or governmental authority or agency is required in
connection with the sale of the Offered Securities under this
Agreement and the applicable Terms Agreement, except such as may be
required under the 1933 Act, the 1939 Act, if applicable, or the 1933
Act Regulations or state securities laws.
(2) At the applicable Closing Time, you shall have received a signed
opinion of David L. Zoeller, Senior Vice President, General Counsel and
Secretary for the Company, dated as of the Closing Time, together with signed
or reproduced copies of such opinion for each of the other Underwriters, in
form and substance satisfactory to you or your counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
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<PAGE> 20
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement.
(iii) The Company is duly registered as a bank holding
company under the Bank Holding Company Act; to the best of his
knowledge and information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations or agreements) and the shares of issued and outstanding
Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable; and the Common Stock of the Company
conforms to all statements relating thereto contained in the
Registration Statement.
(v) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
continues to hold a valid certificate to do business as such and has
full power and authority to conduct business as such, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and,
to the best of his knowledge and information, is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital stock of
each such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable (subject to the provisions of
Section 55 of Title 12 of the United States Code in the case of
Significant Subsidiaries which are national banking associations) and,
to the best of his knowledge and information, is owned by the Company,
directly or through subsidiaries, free and clear of any security
19
<PAGE> 21
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vi) The Registration Statement is effective under the
1933 Act and, to the best of his knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) Each document filed pursuant to the 1934 Act (other
than the financial statements or statistical data included therein, as
to which no opinion need be rendered) and incorporated by reference in
the Prospectus complied when so filed as to form in all material
respects with the 1934 Act and the rules and regulations thereunder.
(viii) To the best of his knowledge and information, there
are no legal or governmental proceedings pending or threatened which
are required to be disclosed in the Registration Statement, other than
those disclosed therein, and all pending legal or governmental
proceedings to which the Company or any subsidiary of the Company is a
party or to which any of their property or assets is subject which are
not described in the Registration Statement, including ordinary
routine litigation incidental to the business of the Company or any
such subsidiary, are not material.
(ix) The information in the Prospectus under the captions
"Description of Debt Securities", "Senior Securities", "Subordinated
Securities", "Preferred Stock" and "Description of Common Stock" and,
with respect to the Prospectus Supplement relating to the Offered
Securities, any further description with respect to such Offered
Securities and, to the extent that such information constitutes
matters of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by him and is correct in all
material respects.
(x) To the best of his knowledge and information, there
are no contracts, indentures, deposit agreements, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, deposit agreement, mortgage, loan agreement,
note, lease or other instrument so
20
<PAGE> 22
described, referred to, or filed or incorporated by reference.
(xi) To the best of his knowledge and information, the
execution and delivery of this Agreement and the applicable Terms
Agreement (and, if applicable, the Indenture and Deposit Agreement) by
the Company and the consummation by the Company of the transactions
contemplated herein and therein, do not and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries pursuant
to, any contract, indenture, deposit agreement, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its Significant Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter
or by-laws of the Company or any applicable law, or of any judgment,
order or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Company or
any Significant Subsidiary or any of its properties.
(xii) If the Offered Securities include Depositary Shares,
the Deposit Agreement has been duly authorized, executed and delivered
by the Depositary and constitutes a valid and binding obligation of
the Depositary enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles.
(xiii) If applicable, the Depositary Receipts issued under
and in accordance with the provisions of the Deposit Agreement to
evidence the Depositary Shares will be validly issued and will entitle
the holders thereof to the rights specified therein and in the Deposit
Agreement.
(3) The favorable opinion of Brown & Wood, counsel for the
Underwriters, with respect to the matters set forth in (i) to (v), inclusive,
and (vii) and (ix) of subsection (b)(1) of this Section and in (i) of
subsection (b)(2) of this Section.
(4) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Jones, Day, Reavis & Pogue, David L.
Zoeller, Esq. and Brown & Wood shall each additionally state that nothing has
come to their attention that would lead them to believe that the Registration
Statement (except for financial statements and schedules and other
21
<PAGE> 23
financial or statistical data included or incorporated by reference therein as
to which such counsel need make no statement) at the time it became effective,
or if an amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of the most
recent such filing, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as amended or
supplemented at the date of the applicable Terms Agreement and at Closing Time,
contains an untrue statement of material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) At the applicable Closing Time there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a certificate of the
Chairman or the President or the Deputy Chairman or an Executive or Senior Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of such Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties
of the Company contained in Section 1 hereof are true and correct with the same
force and effect as though expressly made at and as of such Closing Time, (iii)
the Company has complied with all agreements and satisfied all conditions on
its part to be complied with or satisfied at or prior to such Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) At the time of the execution of this Agreement and at
the applicable Closing Time, you shall have received from Ernst & Young a
letter dated such date, in form and substance satisfactory to you, to the
effect that (i) they are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder; (ii) in their opinion
the consolidated financial statements and supporting schedules audited by them
and included or incorporated by reference in the Registration Statement comply
as to form in all material respects with the applicable accounting requirements
of the 1933 Act and the related published rules and regulations with respect to
registration statement Form S-3 and the 1934 Act
22
<PAGE> 24
and the 1934 Act Regulations; (iii) based upon limited procedures set forth in
detail in such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting schedules of
the Company and its subsidiaries included in the Registration Statement and
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934 Act Regulations
or are not fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement, (B) at a specified
date not more than five days prior to the date of such letter, there has been
any change in the capital stock of the Company or any increase in the
consolidated long term debt of the Company and its subsidiaries or any decrease
in the total earning assets or total assets of the Company and its
subsidiaries, in each case as compared with the amounts shown in the most
recent balance sheet included in the Registration Statement or, during the
period from a specified date not more than five days prior to the date of such
letter, there were any decreases, as compared with the corresponding period in
the preceding year, in net interest income, net interest income after provision
for loan loss, non-interest income, net income or net income per share of the
Company and its subsidiaries as compared on the corresponding period in the
preceding year except in all instances for changes, increases or decreases
which the Registration Statement and the Prospectus disclose have occurred or
may occur; and (iv) in addition to the examination referred to in their
opinions and the limited procedures referred to in clause (iii) above, they
have carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which are
included in the Registration Statement and Prospectus and which are specified
by you and have 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.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Offered Securities as herein contemplated shall be reasonably satisfactory in
form and substance to you and counsel for the Underwriters.
(f) In the event the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 2(b)
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<PAGE> 25
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be true
and correct as of each Date of Delivery, and you shall have received:
(1) A certificate, dated such Date of Delivery, of the Chairman, or
the President or the Deputy Chairman or an Executive or Senior Vice President
of the Company and of the Chief Financial or Chief Accounting Officer of the
Company, in their capacities as such, confirming that the certificate delivered
at Closing Time pursuant to Section 5(c) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinion of Jones, Day, Reavis & Pogue, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities
and otherwise substantially to the same effect as the opinion required by
Section 5(b)(1) hereof.
(3) The favorable opinion of David L. Zoeller, Senior Vice
President, General Counsel and Secretary for the Company, dated such Date of
Delivery, relating to the Option Securities and otherwise substantially to the
same effect as the opinion required by Section 5(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities
and otherwise to the same effect as the opinion required by Section 5(b)(3)
hereof.
(5) A letter from Ernst & Young in form and substance satisfactory to
you and dated such Date of Delivery, substantially the same in scope and
substance as the letter furnished to you pursuant to Section 5(d) hereof,
except that the "specified date" in the letter pursuant to this Section 5(f)
shall be a date not more than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if
24
<PAGE> 26
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such - settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of
25
<PAGE> 27
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled, at its own expense, to participate
therein and to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
you shall have the right to employ counsel to represent jointly you and the
other Underwriters and their respective controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by you and the other Underwriters against the Company under this Section
if, in your reasonable judgment, it is advisable for you and the other
Underwriters and controlling persons to be jointly represented by separate
counsel and in that event the fees and expenses of such separate counsel shall
be paid by the Company. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters of each offering shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
26
<PAGE> 28
contemplated by such indemnity agreement incurred by the Company and one or
more of the Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount appearing on the cover page of
the Prospectus bears to the initial public offering price appearing thereon and
the Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. Representations Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or any Terms Agreement or contained in certificates of executive
officers of the Company submitted pursuant thereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Offered Securities to the Underwriters.
Section 9. Termination of Agreement.
(a) This Agreement may be terminated for any reason at
any time by either the Company or you upon the giving of 30 days' written
notice of such termination to the other party hereto. Such of you as may be
named in any Terms Agreement may also terminate such Terms Agreement,
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there shall have been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) if there
shall have occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as to make it, in
the reasonable judgment of such of you as are named in such Terms Agreement,
impracticable to market the Offered Securities or to enforce contracts for the
sale of the Offered Securities, or (iii) if trading in the Common Stock shall
have been suspended by the
27
<PAGE> 29
Commission or a national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by either of
said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or Ohio authorities, or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities or preferred
stock of the Company as of the time any applicable Terms Agreement was entered
into shall have been lowered since that time or if any such rating organization
shall have publicly announced that it has placed any debt securities or
preferred stock of the Company on what is commonly termed a "watch list" for
possible downgrading. In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of the Offered Securities
shall remain in effect so long as any Underwriter owns any such Offered
Securities purchased from the Company pursuant to the applicable Terms
Agreement and (y) the covenant set forth in Section 3(h), the provisions of
Section 4, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7 and the provisions of Sections 8 and 13 shall
remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters participating in an offering of Offered Securities
shall fail at the applicable Closing Time to purchase the Offered Securities
which it or they are obligated to purchase hereunder and under the applicable
Terms Agreement (the "Defaulted Securities"), then such of you as are named
therein shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the nondefaulting Underwriters, or any other underwriters,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
during such 24 hours you shall not have completed such arrangements for the
purchase of all the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of Offered
Securities to be purchased pursuant to such Terms Agreement, the nondefaulting
Underwriters named in such Terms Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all nondefaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the aggregate principal amount of Offered Securities to be purchased pursuant
to such Terms Agreement, the applicable Terms
28
<PAGE> 30
Agreement shall terminate without liability on the part of any nondefaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as
set forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. Notices. All notices and other communications under this
Agreement and any Terms Agreement shall be in writing and shall be deemed to
have been duly given if delivered, mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to
___________, or in respect of any Terms Agreement, to such other person and
place as may be specified therein; notices to the Company shall be directed to
it at National City Corporation, 1900 East Ninth Street, Cleveland, Ohio
44114-3484, attention of Thomas A. Richlovsky, Senior Vice President and
Treasurer.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon you and the Company and any Underwriter who becomes a party
to a Terms Agreement, and their respective successors. Nothing expressed or
mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties
hereto and thereto and their respective successors and the controlling persons
and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
the Offered Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and each Terms
Agreement 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 in said
State. Specified times of day refer to New York City time.
29
<PAGE> 31
Section 14. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
_________________________
30
<PAGE> 32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
NATIONAL CITY CORPORATION
By____________________________
Name and Title:
Confirmed and accepted as of
the date first above written:
31
<PAGE> 33
Exhibit A
NATIONAL CITY CORPORATION
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Re: Underwriting Agreement dated , 199_.
Dear Sirs:
We (the "Representative[s]") understand that National City
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
[[$ aggregate principal amount] of its [senior debt securities] [and]
[subordinated [convertible debt securities] (the "Debt Securities")] [and]
[_________ shares of its [convertible] preferred stock (the "Preferred Stock")]
and [____________ depositary shares (the "Depositary Shares") each representing
_______ of a share of __________ preferred stock]. This Agreement is the Terms
Agreement referred to in the underwriting agreement dated _______________, 199_
(the "Underwriting Agreement"). Subject to the terms and conditions set forth
herein or incorporated by reference herein, the Underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
[amounts of [Debt Securities] [and] [Preferred Stock] [Depositary Shares]] set
forth below.
<TABLE>
<CAPTION>
Principal Principal Principal
Amount of Amount of Amount of
Name of Debt Preferred Depositary
Underwriter Securities Stock Shares
---------- --------- ----------
<S> <C> <C> <C>
__________ __________ __________
Total $_________ $_________ $_________
</TABLE>
<PAGE> 34
Debt Securities
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount,
plus accrued interest, if any, [or amortized original issue
discount, if any,] from , 19 .
Purchase price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if
any,] from , 19 (payable in next day funds).
Listing requirement: [None] [NYSE]
Convertible:
Conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
2
<PAGE> 35
Preferred Stock
Title of Preferred Stock:
Principal amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or
amortized original issue discount, if any, from ____________, 19_
Purchase Price: % plus accrued interest or amortized
original issue discount, if any, from _____________, 19_ (payable in
next day funds).
Listing Requirement: [None] [NYSE]
Convertible:
Initial Conversion price: $_____ per share of [Common Stock].
Other conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
3
<PAGE> 36
Depositary Shares
Title of Depositary Shares:
Principal amount to be issued: $
Currency:
Fractional amount of Preferred Stock represented by each
Depositary Share:
Initial public offering price per Depositary Share: % of
the principal amount, plus accrued interest [or amortized original
issue discount], if any, from _____________, 19__.
Purchase price per Depository Share:
(amount equal to the initial public offering price set forth above,
less $__________ per Depositary Share).
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
Each Underwriter severally agrees, subject to the terms and provisions
of the above referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the [principal amount] [number
of shares] of Offered Securities set forth opposite its name and a
proportionate share of Option Securities to the extent any are purchased.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
4
<PAGE> 37
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement, shall be a binding agreement between
the Underwriters named herein and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
[Representative[s]]
By_________________________________
Acting on behalf of themselves and
the other named Underwriters
Confirmed and accepted as of
the date first above written:
NATIONAL CITY CORPORATION
By:__________________________
Name and Title:
5
<PAGE> 1
EXHIBIT 4.6
DEPOSIT AGREEMENT dated as of ___________, ____, among
National City Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), National City Bank, Cleveland, a
national banking association, as depositary (the "Depositary"), and the holders
from time to time of Depositary Receipts issued hereunder.
WITNESSETH
WHEREAS, the parties hereto desire to provide for the deposit
with the Depositary of shares of __% [Cumulative] [Convertible] Preferred
Stock, without par value, of the Company, and for the issuance of receipts
evidencing fractional interests in such shares.
NOW, THEREFORE, in consideration of the premises, it is
agreed by and among the parties hereto 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 and the Receipts:
The term "Certificate of Designation" shall mean the
Certificate of Designation adopted by the Company's Board of Directors or a
duly authorized committee thereof setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and limitations
of the Stock, attached hereto as Exhibit A.
The term "Certificate of Incorporation" shall mean the
Restated Certificate of Incorporation, as amended from time to time, of the
Company.
The term "Common Stock" shall mean the common stock, par value
$4.00 per share, of the Company or any security into which the Common Stock may
be converted.
The term "Company" shall mean National City Corporation,
incorporated under the laws of the State of Delaware, and its successors.
The term "Corporate Trust Office" shall mean the principal
office of the Depositary in Cleveland, Ohio, at which at any particular time
its corporate trust business shall be administered.
The term "Deposit Agreement" shall mean this Agreement, as
amended or supplemented from time to time.
<PAGE> 2
The term "Depositary" shall mean National City Bank,
Cleveland, a national banking association, and any successor as depositary
hereunder.
The term "Depositary Shares" shall mean the Depositary Shares
evidenced by the Receipts. Each Depositary Share shall, as provided herein,
represent a one-fifth interest in a share of Stock. Subject to the terms of
this Deposit Agreement, each owner of a Depositary Share is entitled,
proportionate to the actual fractional interest in a share of Deposited Stock
underlying such Depositary Share, to all the rights and preferences of the
Stock represented thereby, including dividend, voting, conversion, redemption
and liquidation rights.
The term "Depositary's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purpose specified, in Section 7.05.
The term "Deposited Stock" shall mean the shares of Stock
which are at the time of determination held by the Depositary hereunder.
The term "Exchange Act" shall mean the Securities Exchange Act
of 1934, as from time to time amended.
The term "Receipt" shall mean one or more of the depositary
receipts issued hereunder, whether in definitive or temporary form,
substantially in the form of Exhibit B hereto.
The term "record date" shall mean the date fixed pursuant to
Section 4.04.
The term "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.
The term "Redemption Date" shall have the meaning set forth in
Section 2.03 hereof.
The term "Registrar" shall mean any bank or trust company
which shall be appointed to register ownership and transfers of Receipts as
herein provided.
The term "Registration Statement" shall mean the Registration
Statement on Form S-3 of the Company (Registration No. 33-______) relating to
the offering of the Depositary Shares.
2
<PAGE> 3
The term "Securities Act" shall mean the Securities Act of
1933, as from time to time amended.
The term "Stock" shall mean shares of the Company's __%
(Cumulative) (Convertible) Preferred Stock, without par value.
ARTICLE II
DEPOSIT OF STOCK; FORM, EXECUTION,
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Concurrently with the execution and delivery of
this Deposit Agreement, the Company is delivering to the Depositary, a
certificate or certificates, registered in the name of the Depositary and
evidencing _______ shares of the Stock, together with (i) all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and (ii) a written order of the Company
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
_________ Depositary Shares representing such Deposited Stock. The certificate
or certificates evidencing the Deposited Stock shall be held by the Depositary,
at the Corporate Trust Office or at such other place or places as the
Depositary shall determine. The Company hereby authorizes the Depositary, in
its capacity as transfer agent and registrar for the Stock, to reflect changes
in the number of shares (including any fractional shares) of Deposited Stock
from time to time held by the Depositary by notation, book entry or other
appropriate method and the Depositary, in its capacity as aforesaid, agrees to
furnish the Company with regular reports as to the number of shares of
Deposited Stock from time to time held under this Deposit Agreement.
Subject to the terms and conditions of this Deposit Agreement,
Stock may also be deposited hereunder in connection with the delivery of
Receipts to represent distributions under Section 4.02 and upon exercise of the
rights to subscribe referred to in Section 4.03.
The Depositary hereby acknowledges delivery of the Deposited
Stock together with the other documents required as above specified and,
concurrently with such delivery, has caused to be delivered to or upon the
order of the Company, one or more Receipts evidencing the _________ Depositary
Shares which represent all of the fractional interests in the Deposited Stock,
3
<PAGE> 4
in such denominations and registered in such name or names as are specified in
such Company order.
SECTION 2.02. FORM AND TRANSFERABILITY OF RECEIPTS. The
definitive Receipts shall be substantially in the form set forth in Exhibit B
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided and shall be engraved or otherwise
prepared so as to comply with applicable rules of the New York Stock Exchange,
Inc. Pending the preparation of definitive Receipts, the Depositary, upon the
written order of the Company delivered in compliance with Section 2.01, shall
issue, execute and deliver temporary Receipts substantially in the form set
forth in Exhibit B annexed to this Deposit Agreement which may be 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
Depositary may determine. 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 upon surrender
of the temporary Receipts at the office or agency of the Depositary maintained
for such purpose, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall issue,
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. Receipts executed as
provided in this section may be issued
4
<PAGE> 5
notwithstanding the fact that any authorized officer of the Depositary
authenticating such Receipts shall have ceased to hold office at the time of
issuance of such Receipts. The Depositary shall record on its books each
Receipt so signed and delivered as hereafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their issuance.
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
by 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 the 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 Section 2.05,
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 distribution of dividends or
other distributions, the exercise of conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.03. REDEMPTION OF STOCK. The Company agrees that
whenever it shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate of Incorporation and Certificate of Designation,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary at least 60 days' notice of the date of such proposed redemption of
Stock (the "Redemption Date") and of the number of shares of Deposited Stock to
be so redeemed and the applicable redemption price, as set forth in the
Certificate of Designation, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption. On the Redemption Date, provided
that the Company shall then have paid in full to the Depositary the redemption
price of the Stock to be redeemed (including any accrued and unpaid dividends
to the date of redemption), the Depositary shall redeem, as of the Redemption
Date, the number of Depositary Shares representing the shares of Deposited
Stock so
5
<PAGE> 6
called for redemption by the Company. The Depositary shall mail, notice of
such redemption and the proposed simultaneous redemption of the number of
Depositary Shares representing the Deposited Stock to be redeemed, first-class
postage prepaid, not less than 30 and not more than 60 days prior to the
Redemption Date, to the holders of record (determined pursuant to Section 4.04)
of the Receipts evidencing the Depositary Shares representing the Deposited
Stock 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 provided to the Depositary by the Company shall
state the Redemption Date; that the right to convert Stock into shares of
Common Stock will expire at the close of business on the 10th day preceding the
Redemption Date; the number of Depositary Shares to be redeemed; the redemption
price; the place or places where Receipts evidencing Depositary Shares to be
redeemed are to be surrendered for payment of the redemption price; and that
dividends in respect of the Deposited Stock and the Depositary Shares to be
redeemed will cease to accumulate at the close of business on the 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 by lot or
pro rata (as nearly as may be) as may be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid,
after the 10th day preceding the Redemption Date (unless the Company shall fail
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) the conversion rights
in respect of the shares of Stock called for redemption on such Redemption Date
will terminate and all dividends in respect of the shares of Stock so called
for redemption shall cease to accrue, the Depositary Shares being redeemed
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 and any money or other property to which the holders of such
Depositary Shares were entitled upon such redemption) shall cease and terminate
and, upon surrender in accordance with said notice of the Receipts evidencing
such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require or if required by law), such Depositary Shares
shall be redeemed by the Depositary at a redemption price per Depositary Share
equal to _________ (_____) (as such fraction may from time to time be adjusted,
in certain events, so as to equal at all times the fraction of an interest
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represented by one Depositary Share in one share of Stock) of the redemption
price per share plus all money and other property, if any (including amounts in
respect of accrued and unpaid dividends) has been paid in respect of the shares
of Stock represented by such Depositary Shares.
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, without service charge, upon its surrender to the Depositary, a new
Receipt, together with the redemption payment, evidencing the Depositary Shares
evidenced by such prior Receipt that were not called for redemption.
SECTION 2.04. CONVERSION OF STOCK INTO COMMON STOCK. The
Company hereby agrees to accept the delivery of Receipts for purposes of
effecting conversions of the Deposited Stock utilizing the same procedures as
those provided for delivery of certificates for the Stock to effect such
conversions in accordance with the terms and conditions of the Stock as
provided in the Certificate of Designation. Any whole number of Depositary
Shares (whether or not evenly divisible by five) represented by a Receipt may
be surrendered for conversion. If the Depositary Shares represented by a
Receipt are to be converted in part only, a new Receipt or Receipts will be
issued by the Depositary for the Depositary Shares not to be converted. No
fractional shares of Common Stock will be issued upon conversion, and if such
conversion will result in a fractional share being issued, an amount will be
paid in cash by the Company equal to the value of the fractional interest based
upon the closing price of the Common Stock on the last business day prior to
the conversion. For this purpose, a holder of a Receipt or Receipts must
surrender such Receipt or Receipts to the Company, 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 holders with the applicable terms and conditions of the Stock as
provided in the Certificate of Designation and of this Deposit Agreement. The
Company and the Depositary will thereafter effect the cancellation of each
Receipt surrendered for such conversion and of the related Deposited Stock so
converted. In the event that the conversion of Depositary Shares results in
issuance of a fraction of a share of Stock, the Depositary will make
appropriate adjustment in its records (as contemplated in Section 2.01) to
reflect such issuance and, if appropriate, the combination of any fractions of
shares into one or more whole shares of Stock.
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Upon conversion no adjustments will be made for accrued
dividends and, therefore, Depositary Shares surrendered for conversion after
the record date next preceding a dividend payment date for the Deposited Stock
and prior to such dividend payment date must be accompanied by payment of an
amount equal to the applicable fraction of the dividend thereon which is to be
paid on such dividend payment date (unless the Depositary Shares surrendered
for conversion have been called for redemption prior to such dividend payment
date). No adjustment of the conversion price will be required to be made in
any case until cumulative adjustment amounts to 1% or more of the conversion
price.
SECTION 2.05. 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,
and duly stamped as may be required by law. 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.
SECTION 2.06. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon
surrender of a Receipt or Receipts at the Depositary's Corporate Trust 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 denominations requested,
evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
SECTION 2.07. SURRENDER OF RECEIPTS AND WITHDRAWAL OF
DEPOSITED STOCK. Unless the related Depositary Shares have previously been
called for redemption, any holder of a Receipt or Receipts representing any
number of whole shares of Stock may withdraw the Deposited Stock and all money
and other property, if any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Corporate Trust Office. 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, if any, and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal. If a
Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary
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Shares in excess of the number of Depositary Shares representing the number of
whole shares of Deposited 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,
if any, and other property, if any, to be so withdrawn, deliver to such holder,
or (subject to Section 2.05) upon his order, a new Receipt evidencing such
excess number of Depositary Shares. In no event will fractional shares of
Stock (except as represented by Depositary Shares) be distributed by the
Depositary. Delivery of the Stock and money being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate, which, if required by law, shall be properly
endorsed or accompanied by proper instruments of transfer.
HOLDERS ACKNOWLEDGE THAT THERE WILL BE NO MARKET FOR THE
UNDERLYING DEPOSITED STOCK AND THAT UPON WITHDRAWAL OF THE DEPOSITED STOCK
HOLDERS THEREOF WILL NOT BE ENTITLED THEREAFTER TO DEPOSIT SUCH STOCK UNDER
THIS DEPOSIT AGREEMENT.
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 Deposited 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 Deposited 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 its Corporate Trust 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 2.08. LIMITATIONS ON EXECUTION AND DELIVERY OF
RECEIPTS. As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or redemption of any Receipt, or
the exercise of any conversion right, 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 charge or expenses payable by the
holder of a Receipt pursuant to Section 5.07, may require the production of
proof satisfactory to
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it as to the identity and genuineness of any signature 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 exercise of any conversion right may be suspended, or the
registration of transfer, surrender or redemption of outstanding Receipts may
be suspended (a) during any period when the register of holders of the Stock or
of the Common Stock of the Company is closed, or (b) 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 2.09. 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 destroyed, lost or stolen Receipt, upon (i) the filing by
the holder thereof with the Depositary of evidence of such destruction or loss
or theft of such Receipt, of the authenticity thereof and of his ownership
thereof, such evidence being satisfactory to both the Depositary and the
Company, and (ii) the furnishing to the Depositary of an indemnity in
accordance with the Depositary's ordinary standard practice.
SECTION 2.10. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. The Depositary is authorized to turn
over such cancelled Receipts to the Company unless the Company instructs the
Depositary to destroy such Receipts.
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, and to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary and proper. The
Depositary or the Company may withhold the delivery or delay the registration
of transfer, redemption or exchange, of any Receipt
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or the withdrawal of the Deposited 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 or the
exercise of any conversion right 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 Deposited 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, and any conversion
right may be refused, or any part or all of the Deposited 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 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 represents
and warrants that the Stock is validly issued, fully paid and nonassessable.
Such representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
SECTION 3.04. COVENANTS AND WARRANTIES AS TO COMMON STOCK.
The Company covenants that it will keep reserved or otherwise available a
sufficient number of authorized and unissued shares of Common Stock to meet
conversion requirements in respect of the Deposited Stock and that it will give
written notice to the Depositary of any adjustments in the conversion price
made pursuant to the Certificate of Designation. The Company represents and
warrants that the Common Stock issued upon conversion of the Deposited Stock
will be validly issued, fully paid and non-assessable.
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ARTICLE IV
THE DEPOSITED STOCK; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Deposited
Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such sum as are, as nearly as practicable, in proportion to the
respective numbers 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 Deposited 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 any 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. Whenever the
Depositary shall receive any distribution other than cash on the Deposited
Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such distribution 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 Depositary or the Company withhold an amount on account of
taxes) the Depositary deems, after consultation with the Company, such
distribution 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 such distribution 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 Section 3.02, be distributed or made available
for distribution,
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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 securities on or in respect of the Stock to
holders of Depositary Shares unless the Company shall have provided to the
Depositary an opinion of counsel stating that such securities have been
registered under the Securities Act or are to be issued in a transaction which
is exempt from the registration requirements thereof.
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 registered 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 Company shall instruct,
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; provided, however, that (a) 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) feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (b) 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 be, subject to Sections 3.01 and 3.02,
distributed by the Depositary to the record 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,
preferences or privileges on or in respect of the Stock to holders of
Depositary Shares unless the Company shall have provided to the Depositary an
opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act or are to be issued in a transaction
which is exempt from the registration requirements thereof.
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If registration under the Securities Act 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 to become effective so as 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 the Depositary has
received an opinion of counsel, who shall be satisfactory to the Depositary,
stating that no 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 and either (a) such a registration statement shall have
become effective or (b) the offering and sale of such securities to such
holders are exempt from registration under the provisions of the Securities
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; 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
the Stock, or whenever the Depositary shall receive notice of any meeting at
which holders of the Stock are entitled to vote or of which holders of the
Stock are entitled to notice, or wherever 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
instructions for the exercise of voting rights at any such meeting, or who
shall be
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entitled to notice of such meeting or for any other appropriate reasons. The
Company shall give the Depositary not less than 10 days' notice prior to fixing
any record date with respect to the Stock for any of the aforementioned
purposes.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of the 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 (a) such information as is contained in
such notice of meeting and (b) a statement that the holders of Receipts may,
subject to any applicable restrictions, instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Deposited Stock
represented by their respective Depositary Shares and a brief statement as to
the manner in which such instructions may be given. Upon the written request
of a holder of a Receipt on such record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the shares of Deposited
Stock represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. To the extent any
such instructions request the voting of a fraction of a share of Deposited
Stock, the Depositary shall aggregate such fraction with all other fractions
resulting from requests with the same voting instructions and shall vote the
number of whole shares resulting from such aggregation in accordance with the
instructions received in such requests. 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 Deposited 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 the Stock unless directed to the contrary by the
holders of Receipts evidencing a majority of the Depositary Shares) to the
extent of the Deposited Stock represented by the Depositary Shares evidenced by
such Receipt. The Company also agrees that it will at all times comply with
the proxy rules of the Exchange Act.
SECTION 4.06. CHANGES AFFECTING DEPOSITED STOCK AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or
upon any recapitalization, reorganization, merger, consolidation or sale of all
or substantially all the Company's assets affecting the Company or to which it
is a party, the Depositary may in its discretion with the approval of the
Company, and shall upon the specific instructions of the Company, (a) make such
adjustments in (i) the
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fraction of an interest represented by one Depositary Share in one share of
Stock and (ii) 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 to fully
reflect the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (b) treat 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 under this Deposit
Agreement, and Receipts then outstanding shall thereafter represent such new
deposited securities. 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, consolidation or sale of
substantially all the assets of the Company 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 cash into which the Deposited Stock
evidenced by such Receipts might have been converted or for which such
Deposited Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction. The Company shall cause effective
provision to be made in the charter of the resulting or surviving corporation
(if other than the Company) for protection of such rights as may be applicable
upon exchange of such Stock for securities or property or cash of the surviving
corporation in connection with the transactions set forth above. The Company
shall cause any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
SECTION 4.07. REPORTS. The Depositary shall make available
for inspection by holders of Receipts at its Corporate Trust 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 both (a) received by the
Depositary as the holder of Deposited Stock and (b) made generally available to
the holders of Stock by the Company. In addition, the Depositary shall
transmit certain notices and reports to the registered holders of Receipts as
provided in Section 5.05.
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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 Deposited Stock by
all persons in whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER
BOOKS BY THE DEPOSITARY; REGISTRATION. The Depositary shall maintain at its
Corporate Trust Office facilities for the execution and delivery, transfer,
surrender and redemption of Receipts, and at the offices of the Depositary's
Agents, if any, facilities for the delivery, transfer, surrender and redemption
of Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at its Corporate Trust 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 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.
If the Receipts or the Depositary Shares evidenced thereby or
the Deposited Stock represented by such Depositary Shares shall be listed on
the New York Stock Exchange, the Company may appoint a Registrar 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
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Deposited 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.
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SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor the Company shall incur any liability to any holder
of any Receipt, if (i) 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 or the Depositary's
Agent, by reason of any provision, present or future, of the Certificate of
Incorporation or Certificate of Designation, or (ii) 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 or the Company shall be prevented or
forbidden from 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 or the Company incur any liability to any holder of a
Receipt by reason of non-performance 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 by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
the Company assumes any obligation, nor shall be subject to any liability under
this Deposit Agreement to holders of Receipts, except that nothing herein shall
relieve the Depositary, the Depositary's Agent or the Company for liability to
such holders from acts or omissions arising out of conduct finally adjudicated
to constitute gross negligence or bad faith on the part of such person or
persons in the performance of such duties as are specifically set forth in this
Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Deposited 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 is furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be liable (i) if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under this
Deposit Agreement, or (ii) for any action or any failure to act by it in
reliance upon the advice of legal counsel or accountants. The Depositary, any
Depositary's Agent
18
<PAGE> 19
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document delivered by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary and any Depositary's Agent may own and deal in
any class of securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
Neither the Depositary nor any of the Depositary's Agents is a
trustee for the benefit of holders of the Receipts. It is intended that
neither the Depositary nor any Depositary's Agent shall be deemed to be an
"issuer" of the securities under the federal securities laws or applicable
state securities laws, it being expressly understood and agreed that the
Depositary and the Depositary's Agents are acting only in a ministerial
capacity as Depositary for the Deposited Stock.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement, the Deposited
Stock, the Depositary Shares or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for (i) its representations in this
Deposit Agreement and (ii) the validity of any action taken or required to be
taken by the Depositary in connection with this Deposit Agreement.
The Depositary assumes no responsibility for the correctness
of the description which can be taken as a statement of the Company summarizing
certain provisions of the Deposit Agreement which appears in the Receipts.
Notwithstanding any other provisions herein or set forth in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Deposited Stock at any time deposited with
the Depositary hereunder or of the Depositary Shares as to the value of the
Depositary Shares, the Deposited Stock or Receipts or as to any right, title or
interest of the record holders of the Receipts to the Depositary Shares or
Deposited Stock represented thereby. The Depositary shall not be accountable
for the use or application by the Company of the Deposited Stock, the
Depositary Shares or Receipts or the proceeds of any thereof.
19
<PAGE> 20
The Company agrees that it will register the Deposited Stock
and the Depositary Shares in accordance with applicable securities laws.
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. 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 Deposited Stock and any moneys or property held
hereunder to such successor, and 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 the 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. Such
successor depositary may authenticate the Receipts in the name of the
predecessor depositary or in the name of the successor depositary.
20
<PAGE> 21
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts in
each case at the address recorded in the Depositary's books, copies of all
notices and reports (including, without limitation, financial statements)
required by law, by the rules of any national securities exchange upon which
the Deposited Stock, the Depositary Shares or the Receipts are listed or by the
Certificate of Incorporation or Certificate of Designation to be furnished by
the Company to holders of Deposited Stock. Such transmissions will be at the
Company's expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the holders of Receipts (at the
Company's expense) such other documents as may be requested by the Company.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company
agrees to indemnify the Depositary, any Depositary's Agent, and any Registrar
against, and hold each of them harmless from, any liability which may arise out
of acts performed or omitted in connection with the provisions of this Deposit
Agreement, as the same may be amended, modified or supplemented from time to
time, 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 gross negligence or bad faith on the part of any such person or
persons, or (b) by the Company or any of its agents (other than the Depositary,
the Depositary's Agents, the Registrar, if any, or any of their agents).
SECTION 5.07. CHARGES AND EXPENSES. No charges and expenses
of the Depositary or any Depositary's Agent hereunder, or those of any
Registrar, shall be payable by any person, except for any taxes and other
governmental charges and except as provided in this Section 5.07. The Company
will pay charges of the Depositary in connection with the initial deposit of
the Deposited Stock and any redemption of the Stock and will pay all transfer
and other taxes and governmental charges arising solely from the existence of
this Deposit Agreement. If, at the election of a holder of Deposited Stock or
Receipts, any delivery or communication from the Depositary to such holder is
by telegram or telex or if the Depositary incurs charges or expenses for which
it is not otherwise liable hereunder at the election of such holder, 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
21
<PAGE> 22
performance of their respective obligations hereunder will be promptly paid by
the Company as previously agreed upon by the Company and the Depositary. The
Depositary shall present its statement for charges and expenses to the Company
once every three months 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. However, any amendment which shall
materially and adversely alter the rights of holders of Receipts, shall not
become effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. In no event
shall any amendment impair the right, subject to the provisions of Sections
2.07 and 2.08 and Article III, of any owner of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to
the Depositary to deliver to the holder the Deposited Stock and all money and
other property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.02. TERMINATION. This Deposit Agreement may only
be terminated by the Company or the Depositary by written notice to the other
party if (i) all outstanding Depositary Shares issued pursuant hereto have been
redeemed or converted into Common Stock or (ii) there has been a final
distribution in respect of the Deposited Shares in connection with a
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of the Depositary Shares entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be discharged
from all obligations under this Deposit Agreement except for its obligations to
the Depositary and any Depositary's Agent under Section 5.06 and 5.07.
22
<PAGE> 23
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. 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 Corporate
Trust Office and the respective offices of the Depositary's Agents, if any, by
any holder of a Receipt.
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 1900 E.
Ninth Street, Cleveland, Ohio 44114-3384, Attention of legal department, or at
any other place of which the Company has 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 its Corporate Trust Office.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered
23
<PAGE> 24
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 Receipts 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 deemed to 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. The 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. HEADINGS. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit B hereto have been inserted for Convenience only and are not to be
regarded as a part of this Deposit Agreement or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
24
<PAGE> 25
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.
<TABLE>
<S> <C>
NATIONAL CITY CORPORATION
By:______________________________
(Seal)
Attest:
____________________
Secretary
NATIONAL CITY BANK,
As Depositary
By:______________________________
Name:
Title:
(Seal)
Attest:
____________________
Secretary
</TABLE>
25
<PAGE> 26
EXHIBIT A
COMPANY'S CERTIFICATE OF DESIGNATION
<PAGE> 27
EXHIBIT B
FORM OF DEPOSITARY RECEIPTS
<PAGE> 1
EXHIBIT 5.1
[JONES, DAY, REAVIS & POGUE LETTERHEAD]
June 27, 1994
National City Corporation
National City Center
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Re: Registration Statement on Form S-3
with Respect to $500,000,000 Aggregate
Principal Amount of Debt Securities and
Shares of Preferred Stock, without Par Value
--------------------------------------------
Gentlemen:
We are acting as counsel to National City Corporation (the "Company") in
connection with the Company's issuance and sale of up to $500,000,000 aggregate
principal amount of its (i) senior or subordinated unsecured debt securities
(the "Debt Securities") and (ii) Preferred Stock, without par value (the
"Shares"), pursuant to Post-Effective Amendments No. 1 to Registration
Statements on Form S-3 (Nos. 33-39479 and 33-39480) and the Registration
Statement on Form S-3, all filed as of this date by the Company with the
Securities and Exchange Commission (the "Commission") to effect registration
under the Securities Act of 1933, as amended, of the Debt Securities and the
Shares (such Registration Statements as so amended and as newly filed,
collectively, the "Registration Statements"). We are familiar with the
proceedings heretofore taken, and are familiar with the additional proceedings
proposed to be taken, by the Company in connection with the authorization,
issuance, authentication and sale of the Debt Securities and the authorization,
issuance and sale of the Shares.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In our examination, we have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such copies.
NYMAIN Doc: 67127.1
<PAGE> 2
National City Corporation
June 27, 1994
Page 2
Based on the foregoing and subject to the proposed additional proceedings
required for the due designation of the specific terms of the Debt Securities
and the Shares by the Board of Directors of the Company, or a Committee thereof
duly designated and empowered for such purpose, being duly taken and completed
by the Company as now contemplated prior to the issuance of the Debt Securities
and the Shares, we are of the opinion that:
1. The form of Senior Indenture filed as Exhibit 4.1 to the Registration
Statements (the "Senior Indenture"), when duly executed and delivered by
the Company and NBD Bank, National Association, as Trustee, will
constitute a valid and binding instrument of the Company and will comply
with the requirements of the Trust Indenture Act of 1939, as amended
(the "1939 Act").
2. The Subordinated Indenture dated as of February 1, 1994 filed as Exhibit
4.2 to the Registration Statements (the "Subordinated Indenture" and
collectively with the Senior Indenture, the "Indentures") constitutes a
valid and binding instrument of the Company and complies with the
requirements of the 1939 Act.
3. The Debt Securities have been duly authorized and, when duly executed
and authenticated in accordance with the provisions of the applicable
Indenture and when delivered and paid for, will constitute valid and
binding obligations of the Company and will be entitled to the benefits
of the applicable Indenture.
4. The Shares are duly authorized and, upon the issuance and sale thereof
against payment therefor in the manner provided in the Registration
Statements, will be validly issued, fully paid and nonassessable.
5. The shares of Common Stock, par value $4.00 per share, issuable upon
conversion of the Debt Securities or the Shares are duly authorized and,
upon the issuance thereof in the manner provided in the Registration
Statements and the pertinent Certificate of Designation, to be filed as
an Exhibit to the Registration Statements, will be validly issued, fully
paid and nonassessable.
NYMAIN Doc: 67127.1
<PAGE> 3
National City Corporation
June 27, 1994
Page 3
We hereby consent to the filing of this opinion as Exhibit 5.1 to each of
the Registration Statements and to the reference to us under the caption "Legal
Opinions" in the Prospectus comprising a part of such Registration Statements.
This opinion is rendered pursuant to Item 16 of Form S-3 and Item 601 of
Regulation S-K, may be relied upon only by you and the Commission and may not
be used, quoted or referred to or filed with any other persons without our
prior written permission.
Very truly yours,
/S/ JONES, DAY, REAVIS & POGUE
Jones, Day, Reavis & Pogue
NYMAIN Doc: 67127.1
<PAGE> 1
EXHIBIT 8.1
[JONES, DAY, REAVIS & POGUE LETTERHEAD]
June 27, 1994
National City Corporation
National City Center
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
Re: Registration Statement on Form S-3
with Respect to $500,000,000 Aggregate
Principal Amount of Debt Securities and
Shares of Preferred Stock, without Par Value
--------------------------------------------
Gentlemen:
We are acting as United States tax counsel to National City Corporation
(the "Company") in connection with the registration of $500,000,000 aggregate
principal amount of its (i) senior or subordinated unsecured debt securities
(the "Debt Securities") and (ii) Preferred Stock, without par value (the
"Shares"), pursuant to Post-Effective Amendments No. 1 to Registration
Statements on Form S-3 (Nos. 33-39479 and 33- 39480) and the Registration
Statement on Form S-3, all as filed as of this date by the Company with the
Securities and Exchange Commission to effect registration under the Securities
Act of 1933, as amended, of the Debt Securities and the Shares (such
Registration Statements as so amended and as newly filed, collectively, the
"Registration Statements"). You have requested our opinion whether the
discussion in the Prospectus comprising a part of each of the Registration
Statements (the "Prospectus") under the caption "United States Taxation" is an
accurate summary of the principal United States federal income tax consequences
of ownership of the Debt Securities, the Shares and any Depositary Shares
representing interests in the Shares.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In our examination, we have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
NYMAIN Doc: 67489.1
<PAGE> 2
National City Corporation
June 27, 1994
Page 2
as certified or photostatic copies, and the authenticity of the originals of
such copies. In addition, we have assumed that the facts set forth in the
Prospectus are accurate. Any change in those facts or any change of law after
the date hereof could adversely affect our opinion.
Subject to the foregoing, we are of the opinion that the statements of law
contained in the Prospectus under the caption "United States Taxation" are
correct.
We consent to the filing of this opinion as an exhibit to each of the
Registration Statements and to the reference to this Firm under the caption
"United States Taxation" in the Prospectus.
Very truly yours,
/S/ JONES, DAY, REAVIS & POGUE
Jones, Day, Reavis & Pogue
NYMAIN Doc: 67489.1
<PAGE> 1
EXHIBIT 12.1
NATIONAL CITY CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
------------------------------------------------------------------ --------------------
1993 1992 1991 1990 1989 1994 1993
---------- ---------- ---------- ---------- ---------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on indebtedness........ $ 147,945 $ 156,924 $ 251,433 $ 348,858 $ 352,971 $ 39,306 $ 32,541
Portion of rents representative
of interest factor............ 14,609 14,041 13,704 13,107 11,227 3,494 3,599
---------- ---------- ---------- ---------- ---------- -------- --------
Fixed charges excluding
interest on deposits........ 162,554 170,965 265,137 361,965 364,198 42,800 36,140
Interest on deposits............ 542,165 722,657 1,092,335 1,252,126 1,205,962 132,422 141,175
---------- ---------- ---------- ---------- ---------- -------- --------
Total fixed charges....... $ 704,719 $ 893,622 $1,357,472 $1,614,091 $1,570,160 $175,222 $177,315
========= ========= ========= ========= ========= ======== ========
EARNINGS:
Income before taxes............. $ 570,962 $ 464,293 $ 314,182 $ 330,706 $ 411,125 $150,466 $134,286
Fixed charges excluding interest
on deposits................... 162,554 170,965 265,137 361,965 364,198 42,800 36,140
---------- ---------- ---------- ---------- ---------- -------- --------
Subtotal.................. 733,516 635,258 579,319 692,671 775,323 193,266 170,426
Interest on deposits............ 542,165 722,657 1,092,335 1,252,126 1,205,962 132,422 141,175
---------- ---------- ---------- ---------- ---------- -------- --------
Total earnings............ $1,275,681 $1,357,915 $1,671,654 $1,944,797 $1,981,285 $325,688 $311,601
========= ========= ========= ========= ========= ======== ========
RATIO OF EARNINGS TO FIXED
CHARGES:
Excluding interest on
deposits...................... 4.51 3.72 2.18 1.91 2.13 4.52 4.72
Including interest on
deposits...................... 1.81 1.52 1.23 1.20 1.26 1.86 1.76
</TABLE>
RATIO OF EARNINGS OF COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
------------------------------------------------------------------ --------------------
1993 1992 1991 1990 1989 1994 1993
---------- ---------- ---------- ---------- ---------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Preferred dividend
requirements.................. $ 24,563 $ 24,242 $ 16,970 $ 0 $ 0 $ 5,965 $ 6,154
Interest on indebtedness........ 147,945 156,924 251,433 348,858 352,971 39,306 32,541
Portion of rents representative
of interest factor............ 14,609 14,041 13,704 13,107 11,227 3,494 3,599
---------- ---------- ---------- ---------- ---------- -------- --------
Fixed charges excluding
interest on deposits........ 187,117 195,207 282,107 361,965 364,198 48,765 42,294
Interest on deposits............ 542,165 722,657 1,092,335 1,252,126 1,205,962 132,422 141,175
---------- ---------- ---------- ---------- ---------- -------- --------
Total fixed charges....... $ 792,282 $ 917,864 $1,374,442 $1,614,091 $1,570,160 $181,187 $183,469
========= ========= ========= ========= ========= ======== ========
EARNINGS:
Income before taxes............. $ 570,962 $ 464,293 $ 314,182 $ 330,706 $ 411,125 $150,466 $134,286
Fixed charges excluding interest
on deposits................... 162,554 170,965 265,137 361,965 364,198 48,765 42,294
---------- ---------- ---------- ---------- ---------- -------- --------
Subtotal.................. 733,516 635,258 579,319 692,671 775,3223 199,231 176,580
Interest on deposits............ 542,165 722,657 1,092,335 1,252,126 1,205,962 132,422 141,175
---------- ---------- ---------- ---------- ---------- -------- --------
Total earnings............ $1,275,681 $1,357,915 $1,671,654 $1,944,797 $1,981,285 $331,653 $317,755
========= ========= ========= ========= ========= ======== ========
RATIO OF EARNINGS TO FIXED
CHARGES:
Excluding interest on
deposits...................... 3.92 3.25 2.05 1.91 2.13 4.09 4.18
Including interest on
deposits...................... 1.75 1.48 1.22 1.20 1.26 1.83 1.73
</TABLE>
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 with respect to $500,000,000 aggregate
principal amount of debt securities and shares of preferred stock and in Post
Effective Amendments No. 1 to Registration Statements (Form S-3) No. 33-39479
and 33-39480 of National City Corporation for the registration of an aggregate
of $500,000,000 of debt securities and/or preferred stock and to the
incorporation by reference therein of our report dated January 21, 1994, with
respect to the consolidated financial statements of National City Corporation
included in its Annual Report on Form 10-K for the year ended December 31, 1993,
as filed with the Securities and Exchange Commission.
ERNST & YOUNG
Cleveland, Ohio
June 24, 1994
<PAGE> 1
EXHIBIT 24.1
DIRECTORS AND CERTAIN OFFICERS OF
NATIONAL CITY CORPORATION
REGISTRATION STATEMENT ON FORM S-3
FOR DEBT SECURITIES AND SHARES OF PREFERRED STOCK
---------------------
POWER OF ATTORNEY
---------------------
The undersigned directors and officers of National City Corporation
(the "Registrant") hereby constitute and appoint Thomas A. Richlovsky, David L.
Zoeller, Carlton E. Langer, Dennis W. LaBarre and Seven D Guynn, or any of
them, with full power of substitution and resubstitution, as attorneys or
attorney of the undersigned, to sign and file under the Securities Act of 1933,
as amended, a Registration Statement on Form S-3 relating to the registration
of debt securities and of shares of Preferred Stock pursuant to a resolution of
the Board of Directors of the Registrant adopted on April 25, 1994, and any and
all amendments and exhibits thereto, including post-effective amendments, and
any and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining to such registration, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done in the premises, hereby ratifying and approving the acts
of said attorneys and any of them and any such substitute.
EXECUTED this 25th day of April, 1994.
David A. Daberko
- ------------------------------------- -------------------------------------
Edward B. Brandon David A. Daberko
Chairman and Chief Executive Officer; President and Chief Operating
Director Officer; Director
William R. Robertson Sandra H. Austin
- ------------------------------------- -------------------------------------
William R. Robertson Sandra H. Austin
Deputy Chairman; Director Director
James M. Biggar Charles H. Bowman
- ------------------------------------- -------------------------------------
James M. Biggar Charles H. Bowman, Ph.D.
Director Director
<PAGE> 2
John G. Breen Richard E. Disbrow
- ------------------------------------- -------------------------------------
John G. Breen Richard E. Disbrow
Director Director
Daniel E. Evans Otto N. Frenzel III
- ------------------------------------- -------------------------------------
Daniel E. Evans Otto N. Frenzel III
Director Director
Joseph H. Lemieux A. Stevens Miles
- ------------------------------------- -------------------------------------
Joseph H. Lemieux A. Stevens Miles
Director Director
Burnell R. Roberts Stephen A. Stitle
- ------------------------------------- -------------------------------------
Burnell R. Roberts Stephen A. Stitle
Director Director
- ------------------------------------- -------------------------------------
Morry Weiss Robert G. Siefers
Director Executive Vice President and Chief
Financial Officer
- -------------------------------------
Thomas A. Richlovsky
Senior Vice President and Treasurer
2
<PAGE> 1
================================================================================
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
_______________________
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) X
____________________________
NBD BANK, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
611 Woodward Avenue
Detroit, Michigan 48226 38-0864715
(Address of principal executive offices) (Zip Code) (I.R.S. Employer
Identification No.)
NBD BANK, NATIONAL ASSOCIATION
611 WOODWARD AVE.
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: W. HARRISON SMITH (313) 225-2917
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
NATIONAL CITY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 34-1111088
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
National City Center
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
(Address of principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
1. GENERAL INFORMATION
(a) The following are the names and addresses of each
examining or supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust
powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
<TABLE>
<S> <C>
AS OF JUNE 24, 1994
- --------------------------------------------------------------------------------
COLUMN A COLUMN B
- -------------------------------------------------------------------------------
TITLE OF CLASS AMOUNT OUTSTANDING
- -------------------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
</TABLE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is a Trustee under a Subordinated Indenture dated as of
February 1, 1994, under which $250,000,000 of the obligors's 6-5/8%
Subordinated Notes Due 2004 are issued and outstanding. Such securities
were issued under a Section 305(b)(2)filing of March 18, 1991, providing for
the issuance of Subordinated Debt Securities.
The Trustee is also designated as a trustee under the
obligor's Section 305(b)(2) filing of March 18, 1991, providing for the
issuance of Senior Debt Securities. However, the Trustee is not
serving as trustee for any securities issued thereunder.
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<PAGE> 3
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of the
Trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Voting securities of the Trustee owned by the obligor and its directors,
partners and executive officers, taken as a group, do not exceed one
percent of the outstanding voting securities of the Trustee.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the Trustee.
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns beneficially
or holds as collateral security for obligations in default does not exceed
one percent of the outstanding securities of the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of an
underwriter for the obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the Trustee (1) owns 10% or more of the voting
securities of the obligor, or (2) is an affiliate, other than a
subsidiary, of the obligor.
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11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PER CENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of a person who, to the knowledge of
the Trustee, owns 50 percent or more of the voting securities of the
obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
The obligor is not indebted to the Trustee.
13. DEFAULTS BY THE OBLIGOR.
The Trustee is not aware of any Defaults under the existing
Indenture, to which reference is made in Item #4.
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
16. LIST OF EXHIBITS.
(1) Articles of Association of the Trustee.
(2) Certificate of Authority of the Trustee to commence
business. Incorporated by reference to Exhibit (2) filed with
Amendment No. 1 to Form T-1 Statement, Registration No. 22-4501.
(3) Authorization of the Trustee to exercise corporate trust powers.
Incorporated by reference to Exhibit (3) filed with
Amendment No. 1 to Form T-1 Statement, Registration No. 22-4501.
(4) By-Laws of the Trustee.
(5) Not Applicable.
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
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<PAGE> 5
Exhibit (6) filed with Amendment No. 1 to Form T-1
Statement, Registration No. 22-4501.
(7) Report of condition of Trustee.
(8) Not applicable.
(9) Not applicable.
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<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD BANK, NATIONAL ASSOCIATION, a national association organized
and existing under the laws of the United States of America, has duly caused
this statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Detroit, State
of Michigan on the 24th day of June, 1994.
<TABLE>
<S> <C>
NBD BANK, NATIONAL ASSOCIATION
(Trustee)
By:____________________________
W. Harrison Smith
Second Vice President
</TABLE>
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<PAGE> 7
NBD BANK, NATIONAL ASSOCIATION
Detroit, Michigan
Charter No. 13671
ARTICLES OF ASSOCIATION
Effective January 1, 1973
(As amended effective May 1, 1990)
FIRST.
The title of the Association shall be NBD Bank, National Association.
SECOND.
The place where its banking house or office shall be located, and its
operations of discount and deposit carried on, and its general business
conducted, shall be the City of Detroit, Wayne County, State of Michigan.
The Board of Directors shall have the power to change the location of the main
office to any other place within the limits of the City of Detroit, without the
approval of the shareholders and shall have the power to establish or change
the location of any branch or branches of the Association to any other
location, without the approval of the shareholders.
THIRD.
The Board of Directors shall consist of such number of persons, not less than
five nor more than twenty-five, as from time to time shall be determined by a
majority of the votes to which all shareholders are at the time entitled. Each
Director, during the full term of his or her directorship, shall own a minimum
of $1,000 aggregate par value of stock of this Association or a minimum par
value, market value or equity interest equivalent to $1,000 of common stock in
the bank holding company controlling this Association. The Board of Directors,
by vote of the majority of the entire Board, may, between annual meetings of
the shareholders, increase the number of members of the Board of Directors by
not more than two where the number of directors last elected by shareholders
was fifteen or less or by not more than four where the number of directors last
elected by shareholders was sixteen or more, but in no event so that the total
number of directors shall exceed twenty- five, and by like vote appoint
qualified persons to fill the vacancies created thereby.
FOURTH.
The regular annual meeting of the shareholders of this Association shall be
held at its main banking house, or other convenient place duly authorized by
the Board of Directors on such day of each year as is specified therefor in the
By-Laws. All elections shall be held according to such regulations as may be
prescribed by the Board of Directors, not inconsistent with the provisions of
the National Bank Act and of these Articles of Association.
<PAGE> 8
FIFTH.
The authorized amount of the capital stock of the Association shall be
10,000,000 shares of common stock of the par value of $12.50 each. The
authorized amount of the capital stock of the Association may be increased or
decreased from time to time in accordance with provisions of the laws of the
United States.
In case of the increase of the capital of the Association each shareholder
shall have the privilege of subscribing for such number of shares of the
proposed increase of the capital stock as he may be entitled to according to
the number of shares owned by him before the stock is increased, provided that
no holder of shares of the capital stock of the Association shall have any
preemptive right of subscription to any shares of the capital stock of the
Association which are authorized and kept available for issuance in conversion
of obligations of the Association or any preferential right of subscription to
convertible obligations specifically authorized by the shareholders to be
issued free of such preferential right of subscription.
The Association, at any time and from time to time, may authorize and issue
debt obligations not convertible into capital stock of the Association, without
the approval of the shareholders.
SIXTH.
(a) Powers of Board of Directors. The Board of Directors, a majority of whom
shall be a quorum to transact business, shall have power to manage and
administer the business and affairs of the Association and to prescribe By-Laws
for the regulation of the business of the Association and the conduct of its
affairs not inconsistent with law and these Articles of Association. Except as
expressly limited by law, all corporate powers of the Association shall be
vested in and may be exercised by the Board of Directors.
(b) Officers and Employees. The Board of Directors shall have power to elect
or appoint such officers and employees as may be required to transact the
business of the Association, to define their duties, to fix the salaries to be
paid to them, to require bonds from them and to fix the penalty thereof, and to
continue them in office or dismiss them.
(c) Indemnification of Directors, Officers and Employees. Any person shall be
indemnified and reimbursed by the Association for expenses reasonably incurred
by him and liabilities imposed upon him in connection with or arising out of
any action, suit or proceeding, civil or criminal, or threat thereof, in which
he may be involved by reason of his being or having been a director, officer,
or employee of the Association or of any firm, corporation or organization
which he served in any capacity at the request of the Association; provided,
however, that no person shall be so indemnified or reimbursed (a) in relation
to any matter in such action, suit or proceeding as to which he shall finally
be adjudged to have been guilty of breach of duty as a director, officer, or
employee of the Association or (b) in relation to any matter in such action,
suit or proceeding, or threat thereof, which has been made the subject of a
compromise settlement, unless in either such case such person acted in good
faith for a purpose which he
2
<PAGE> 9
reasonably believed to be in the best interest of the Association and, in a
criminal action or proceeding, in addition, had no reasonable cause to believe
that his conduct was unlawful or, (c) against expenses, penalties, or other
payments incurred in an administrative proceeding or action instituted by an
appropriate bank regulatory agency which proceeding or action results in a
final order assessing civil money penalties or requiring affirmative action by
such person in the form of payments to the bank. The determination whether the
conduct of such person met the standard required in order to entitle him to
indemnification and reimbursement in relation to any matter described in (a) or
(b) of the preceding sentence may be made by the Board of Directors of the
Association, or by the holders of record of a majority of the outstanding
shares of the Association or by a court of competent jurisdiction. No
adjudication of liability or guilt as to such person shall in itself create a
presumption that he did not meet the standard of conduct required in order to
entitle him to indemnification and reimbursement hereunder. Neither the
Association nor its directors or officers shall be liable to anyone for any
determination of such directors or officers as to the existence or absence of
conduct which would provide a basis for making or refusing to make any payment
hereunder or for taking or omitting to take any other action hereunder, in
reliance upon the advice of counsel. A court of competent jurisdiction may
make a determination as to the right of a person to indemnification and
reimbursement hereunder in any specific case upon the application of such
person, despite the failure or refusal of the directors and shareholders to
make provision therefor. The foregoing right of indemnification and
reimbursement shall not be exclusive of other rights to which such person may
be entitled as a matter of law and shall inure to the benefit of his heirs,
executors and administrators.
SEVENTH.
The Association shall have succession from the date of its organization
certificate until such time as it may be dissolved by the act of its
shareholders according to law or until its franchise becomes forfeited by
reason of violation of law, or until terminated by either a general or a
special act of Congress or until its affairs be placed in the hands of a
receiver and finally wound up by him.
EIGHTH.
Except as otherwise specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the Board of
Directors or by the holders of at least ten per cent of the then outstanding
shares of stock. Every such special meeting shall be called by mailing, not
less than ten days before the time fixed for the meeting, to all shareholders
of record entitled to act and vote at such meeting, at their respective
addresses as shown on the books of the Association, a notice stating the
purposes of the meeting. Such notice may be waived in writing.
3
<PAGE> 10
NINTH.
These Articles of Association may be changed or amended at any time by
shareholders owning a majority of the stock of the Association in any manner
not inconsistent with the provisions of law.
TENTH.
Any action required or permitted to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if all of the shareholders entitled to vote thereon consent thereto in
writing.
4
<PAGE> 11
EXHIBIT (4)
NBD BANK, NATIONAL ASSOCIATION
DETROIT, MICHIGAN
CHARTER NO. 13671
_________________________________________________________________
BY-LAWS
Effective January 1, 1973
(As amended effective May 17, 1993)
_________________________________________________________________
ARTICLE I
SHAREHOLDERS' MEETINGS
Section 1. The regular Annual Meeting of the Shareholders of this Bank for the
election of directors and for the transaction of any other business as may
properly come before the meeting shall be held on the third Monday in May of
each year at eleven o'clock in the forenoon or at such other date and hour as
from time to time may be designated by the Board of Directors.
Nominations for election to the Board of Directors may be made by the Board of
Directors or by any shareholder entitled to vote for the election of directors.
Notification of nominations, other than those made by or on behalf of the
existing management of the Bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D.C. not less than fourteen days nor more than fifty days
prior to the annual meeting of shareholders. Such notification shall contain
the following information, to the extent known to the notifying shareholders:
(a) The name and address of each proposed nominee; (b) The principal occupation
of each proposed nominee; (c) The total number of shares of capital stock of
the Bank that will be voted for each proposed nominee; (d) The names and
residence addresses of the notifying shareholders; and (e) The number of shares
of capital stock of the Bank owned by the notifying shareholders. Any
nomination not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions, the vote
tellers may disregard all votes cast for such nominee unless otherwise properly
nominated in accordance herewith.
<PAGE> 12
2
Section 2. All proxies secured for any annual or special meeting of
shareholders shall be dated and filed by the Cashier with the records of the
meeting. No officer or regular employee of the Bank shall act as proxy at any
shareholders' meeting, but any other person or group of persons including
attorneys of the Bank and Directors of the Bank who are not officers, may act
as proxy at any shareholders' meeting.
Section 3. The Cashier, upon receiving the returns of the judges of election
as aforesaid, shall cause the same to be recorded upon the minute book of the
Bank, and shall notify the directors-elect of their election, and of the time
at which they are required to meet at the banking house of the Bank for the
purpose of organizing the new Board of Directors. If at the time fixed for the
meeting of the directors- elect there is not a quorum in attendance, the
members present may adjourn from time to time until a quorum is secured; and no
business shall be transacted prior to their taking the oath of office as
provided by law.
Section 4. If, for any cause, the annual election of Directors is not held on
the date fixed herein or in the Articles of Association, the Directors in
office shall order a special election to be held on some other day which shall
be designated and of which notice shall be given in accordance with Section
5149, United States Revised Statutes, as amended, and for which nominations for
election to the Board of Directors and notifications thereof shall be made,
judges appointed, returns made and recorded, and the directors-elect notified
according to the provisions of Sections 1, 2 and 3 of this Article I; except
that as to any nomination for election to the Board of Directors at such
special election, other than those made by or on behalf of the existing
management of the Bank, if less than twenty-one days' notice of the meeting is
given to shareholders, notification of such nomination shall be delivered or
mailed to the President of the Bank and to the Comptroller of the Currency not
later than the close of business on the seventh day following the day on which
the notice of meeting was mailed.
Section 5. Special meetings of shareholders may be held as provided in the
Articles of Association and any amendments thereof.
Section 6. For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, annual or special, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors shall fix in
advance a record date and hour for any such determination of shareholders, such
date in any case to be not more than fifty (50) days and, in case of a meeting
of shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof.
<PAGE> 13
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ARTICLE II
DIRECTORS' MEETINGS
Section 1. The regular meetings of the Board of Directors shall be held on
such date and at such time each month as shall from time to time be determined
by the Board of Directors, except that in the month in which the regular annual
meeting of the shareholders is held, the regular meeting of the Board of
Directors shall be held following and on the same day as the regular meeting of
the shareholders. When any regular meeting of the Board of Directors falls
upon a holiday, the meeting shall be held on such other day as the Board of
Directors may previously designate. Special meetings of the Board of Directors
may be called at any time by the Cashier or by any officer of higher rank than
Vice President, or any three Directors. Notice of each special meeting shall
be given personally or by duly mailing, telephoning, or telegraphing the same,
at least twenty-four hours before the meeting. Any or all Directors may waive
notice of any meeting either before or after the meeting.
ARTICLE III
OFFICERS
Section 1. The officers of this Bank shall include a Chairman of the Board and
a President and may include one or more Vice Chairman of the Board (each of
whom shall be a member of the Board of Directors), and shall include one or
more Vice Presidents, a Cashier, one or more Deputy Cashiers, and such other
officers as may be from time to time required for the prompt and orderly
transaction of its business, to be elected by the Board of Directors. The same
person may hold any two or more offices, and in any such case, these By-Laws
shall be construed and understood accordingly; provided that the same person
may not hold the offices of Chairman of the Board and Cashier or President and
Cashier. The duties and authorities of the officers of the Bank, other than
those mentioned in these By-Laws, shall be those usually pertaining to their
respective offices, or as may be designated by the Chairman of the Board,
subject to the supervision and direction of the Board of Directors.
Section 2. The Chairman of the Board, the President and any Vice Chairman of
the Board shall hold office for the current year for which the Board of
Directors of which they shall be members was elected, unless they shall resign,
become disqualified, or be removed; and any vacancy occurring in any of such
offices may be filled by the remaining members of the Board of Directors.
Section 3. The Chairman of the Board shall be the chief executive officer of
the Bank, shall preside at meetings of shareholders and directors, shall have
general supervision and direction of the business of the Bank, and perform such
other duties as may be designated by the Board of Directors. The President
shall perform such duties as may be designated by the Board of Directors and,
in the event of the absence or disability of the Chairman of the Board, shall
have his powers and duties. The Vice Chairman of the Board shall perform such
duties as may be designated by the Board of Directors.
<PAGE> 14
4
Section 4. The Cashier, the Deputy Cashiers, and all other officers shall be
elected, and employees shall be appointed, to hold their respective offices and
positions during the pleasure of the Board of Directors, and shall have such
duties, other than those mentioned herein, as shall be prescribed by the Board
of Directors.
Section 5. The Cashier of this Bank shall be responsible for all moneys,
funds, indemnity bonds, stock books, and records, and other valuables of the
Bank, and shall qualify under the bankers blanket bond covering the bank
officers and employees, approved as to type and amount from year to year by the
Board of Directors, conditioned for the faithful and honest discharge of his
duties as such Cashier, and that he will faithfully apply and account for all
such moneys, funds and valuables, and deliver the same to the order of the
Board of Directors of this Bank, or to the person or persons authorized to
receive them.
Section 6. The other officers of this Bank shall be responsible for all such
sums of money and property of every kind as may be entrusted to their care or
placed in their hands by the Board of Directors or by the Cashier, or otherwise
come into their hands as officers, and shall qualify under the bankers blanket
bond covering the bank officers and employees, approved as to type and amount
from year to year by the Board of Directors, conditioned for the faithful
discharge of their duties as such officers, and that they will faithfully and
honestly apply and account for all sums of money and other property of this
Bank that may come into their hands as such officers, and pay over and deliver
the same to the order of the Board of Directors, or to any other person or
persons authorized by the Board of Directors to receive the same.
Section 7. All agents and employees shall be responsible for all such sums of
money, property and funds of every description as may from time to time be
placed in their hands by the Cashier, or otherwise come into their possession
as agents or employees; and shall qualify under the bankers blanket bond
covering the bank officers and employees, approved as to type and amount from
year to year by the Board of Directors, conditioned for the honest and faithful
discharge of their duties as agents and employees, and that they will
faithfully apply, account for, and pay over all moneys, property, and funds of
every description that may come into their hands, by virtue of their position,
to the order of the Board of Directors aforesaid, or to such person or persons
as may be authorized to demand and receive the same.
ARTICLE IV
SEAL
Section 1. The following is an impression of the seal adopted by the Board of
Directors of this Bank.
[Impression of seal]
<PAGE> 15
5
Section 2. The Cashier shall be the official custodian of the seal and shall
be responsible for the safekeeping and proper use thereof. The seal shall not
be used or affixed to any paper or document whatsoever except by him or any
Deputy Cashier, or such other officers or employees of the Bank as may be
authorized by the Cashier to affix the seal.
ARTICLE V
CONVEYANCE OF REAL ESTATE
Section 1. All transfers and conveyances of real estate shall be made by the
Bank, under seal, in accordance with the orders of the Board of Directors, and
shall be signed by the President or any Vice President or any other officer,
employee or agent of the Bank as may be designated by the Board of Directors,
and shall be attested by the Cashier or any Deputy Cashier, or such other
officer or employee of this Bank as may be authorized by the Cashier to affix
the seal.
ARTICLE VI
BANKING HOURS
Section 1. The Bank shall be open for business upon such hours of each day of
the year as the Board of Directors shall from time to time direct and the Board
of Directors may, in its discretion, prescribe different banking hours for
different classes of business and different banking hours for one or more
branch offices, than it prescribes for its principal banking office.
Section 2. The Board of Directors may delegate to the chief executive officer
this authority to establish the hours of each day of the year that the bank
shall be open for business, including the discretion to prescribe different
banking hours for one or more branch offices, than it prescribed for the Bank's
principal banking office; reserving, however, to itself the authority to act
concurrently in such matters.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. Committee. There shall be a committee composed of not less than
four (4) members to be known as the Executive Committee which shall consist of
all the officer-directors of the Bank and two (2) other directors appointed as
shall be provided by the Board of Directors. Provision shall be made by the
Board of Directors for the appointment of alternates to act for members in the
event of their absence or disability.
Section 2. Presiding Officer. The Chairman of the Board shall act as
presiding officer at any meeting of the Executive Committee. In the event of
the absence or disability of the Chairman of the Board, the President shall act
as presiding officer. In the event of the absence or disability of the
Chairman of the Board and President, another officer-director, if present,
shall act as presiding officer. If no officer-director
<PAGE> 16
6
member is present, an officer-director of the Bank's parent holding company may
serve as the presiding officer, and if no officer-director of the parent
holding company is present, the other members present at the meeting shall
elect one of their members as presiding officer.
Section 3. Quorum. Any two (2) persons, each of whom is a member or alternate
member of the Executive Committee, of whom not less than one (1) shall be
non-officer directors, shall constitute a quorum for the transaction of
business at any meeting of the Executive Committee.
Section 4. Duties. The Executive Committee shall function from day to day or
such other short intervals as shall be found requisite and expedient in the
carrying on of the business and affairs of the Bank, and between meetings of
the Board of Directors, said Committee, within the scope of the jurisdiction
and functions assigned by the Board of Directors to such Committee, shall have
and may exercise, so far as may be permitted by law, all power and authority of
the Board of Directors (including the right to authorize the seal of the Bank
to be affixed to all instruments on which the same may be required or
appropriate) and shall have power, but not by way of limitation of its general
powers, to discount and purchase bills, notes, and other evidences of debt, and
to buy and sell bills of exchange. A record of the meetings of the Committee
shall be kept, which shall be accessible to inspection by the Directors at all
times, and the Committee shall, at each regular meeting of the Board of
Directors and at such other times as the Board of Directors may request, submit
in writing a full report of its actions, including a report of all bills,
notes, and other evidences of debt discounted and purchased by it for the Bank
since its last report. The Board of Directors shall approve or disapprove the
report of the Executive Committee, such action to be recorded in the minutes of
the meeting; provided, however, that no rights of third parties shall be
affected by any action of the Board of Directors, if such rights have attached
by virtue of action of the Executive Committee within the scope of the
jurisdiction and functions assigned by the Board of Directors to said
Committee.
ARTICLE VIII
MINUTE BOOK
Section 1. The organization papers of this Bank, the returns of the judges of
the elections, the proceedings of all regular and special meetings of the Board
of Directors and of the shareholders, the By-Laws and any amendments thereto,
and reports of the committees of the Board of Directors shall be recorded in
the minute book; and the minutes of each meeting shall be signed by the person
presiding at such meeting and attested by the Cashier.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. The stock of this Bank shall be assignable and
<PAGE> 17
7
transferable only on the books of this Bank, subject to the restrictions and
provisions of the National Banking Laws; and a transfer book shall be provided
in which all assignments and transfers of stock shall be made.
Section 2. The stock transfer books of the Bank shall not be closed for the
determination of shareholders entitled to dividends, but any dividend can be
made payable to shareholders of record on the date such dividend is declared,
or any subsequent date. The Bank shall be fully protected in giving notices of
meetings, paying dividends and doing such other things as require a knowledge
of the names of the shareholders of the Bank, in relying upon the names of the
shareholders as they appear upon the stock books of the Bank.
Section 3. Certificates of stock, bearing the manual or facsimile signature of
the Chairman of the Board, President or any Vice President, and the Cashier, or
the manual or facsimile signature of any two of such other employees of the
Bank as may be designated for such purpose from time to time by resolution of
the Board of Directors, and bearing the impressed or facsimile seal of the
Bank, may be issued to shareholders. The death, resignation, discharge or
incapacity of any person whose manual or facsimile signature appears on any
certificate, shall not affect the validity of such certificate of stock,
whether such certificate has theretofore or is thereafter issued. All
certificates of stock shall state upon the face thereof that the stock is
transferable only upon the books of the Bank; and when stock is transferred,
the certificates therefor shall be returned to the Bank, canceled, preserved
and new certificates issued.
ARTICLE X
EXPENSES
Section 1. All the current expenses of the Bank shall be paid by the Cashier
and such other officers of the Bank as may be selected by the Board of
Directors, who shall, every month or more often, if required, make a detailed
statement thereof in writing to the Board of Directors.
ARTICLE XI
CONTRACTS
Section 1. All contracts, checks, drafts, etc., shall be signed by the
Cashier, or any officer of the rank of Vice President or higher rank, or any
other officer or employee designated by the Board of Directors.
ARTICLE XII
EXAMINING COMMITTEE
Section 1. (a) Committee. There shall be appointed annually by the Board of
Directors an Examining Committee composed of not less than three Directors none
of whom shall be officers of the Bank.
<PAGE> 18
8
(b) Duties. The Examining Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a suitable
examination of the financial records and operations of the Bank
through a program of continuous internal audits. The Committee may
employ independent certified public accounting firms of recognized
standing to make such additional examinations and audits as it may
deem advisable. The examinations caused to be made by the Committee
shall meet any examination requirements prescribed from time to time
by the Comptroller of the Currency or other regulatory authorities
having jurisdiction and may be made in conjunction with examinations
of the Comptroller of the Currency.
(ii) Report to the Board of Directors at least once in each calendar year
the results of the examinations made and such conclusions and
recommendations as the Committee deems appropriate.
ARTICLE XIII
TRUST DIVISION
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the Bank
shall be exercised through the Trust Division, subject to such regulations as
the Comptroller of the Currency shall from time to time establish. All books
and records of the Trust Division shall be kept separate and distinct from the
other books and records of the Bank.
Section 2. Officer in Charge. The Trust Division shall be placed under the
management and immediate supervision of an officer appointed by the Board of
Directors. The duties of such officer shall be to cause the policies and
instructions of the Board of Directors, the chief executive officer and the
Trust Committee, with respect to the fiduciary accounts entrusted to the Bank,
to be carried out, and to supervise the due performance of such accounts in
accordance with law and their terms.
Section 3. Other Officers. Any other officer specifically appointed for Trust
Division duties by the Board of Directors shall exercise such powers and
perform such duties as are prescribed by these By-Laws, or as may be assigned
to them by the Board of Directors, the chief executive officer or the officer
in charge of the Trust Division.
Section 4. Signature and Authentication of Instruments. All instruments in
which the Bank is named as Trustee or in any other fiduciary capacity and all
authentications or certificates by the Bank as Trustee under any mortgage, deed
of trust or other instrument securing bonds, debentures, notes or other
obligations of any individual, association or corporation, and all certificates
as Registrar or Transfer Agent and all certificates of deposit for stocks and
bonds, interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or countersigned in
behalf of
<PAGE> 19
9
the Bank by any Trust Officer or officer of higher rank specifically elected or
appointed for Trust Division duties or the Cashier or any officer of the rank
of Vice President or higher rank or by any other person appointed for that
purpose by the Board of Directors.
Section 5. Custody of Investments. The investments of each fiduciary account
shall be kept separate from the assets of the Bank, and shall be placed in the
joint custody or control of not less than two of the officers or employees of
the Bank designated for that purpose by the Board of Directors. All such
officers and employees shall be adequately bonded. The investments of each
such fiduciary account shall be either: kept separate from those of all other
accounts, except as provided under the regulations of the Comptroller of the
Currency for collective investment, or adequately identified as the property of
the relevant account.
Section 6. Trust Committee. There shall be a Trust Committee which shall be
composed of not less than five (5) members of the Board of Directors, at least
three (3) of whom shall be non-officer directors, and may include one or more
officers of the Bank who are not directors, appointed by the Board of Directors
to serve during its pleasure. The Trust Committee shall determine the policies
of the Trust Division. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary powers of the
Bank are assigned, and the investment of funds and disposition of investments
held by the Bank in a fiduciary capacity. It shall have such other powers and
duties relating to the administration of fiduciary accounts entrusted to the
Bank as may be conferred upon it from time to time by the Board of Directors.
The Trust Committee shall meet at least once a month and shall keep minutes of
its meetings showing the disposition of all matters considered and passed upon,
and shall make monthly reports to the Board of Directors.
ARTICLE XIV
QUORUM
Section 1. Except as otherwise provided by statute or in the Articles of
Association, a majority of all the shareholders or Directors, as the case may
be, shall be required to constitute a quorum to do business. Should there be
no quorum at any regular or special meeting of shareholders or Directors, the
shareholders or Directors present may adjourn from day to day until a quorum is
in attendance. In the absence of a quorum no business shall be transacted.
ARTICLE XV
CHANGES IN BY-LAWS
Section 1. These By-Laws may be repealed, altered, or amended, in whole or in
part, by the vote of a majority of the Directors, at any regular or special
meeting of the Board of Directors upon giving at least one week's prior notice
of such proposed change or changes.
<PAGE> 20
10
I, _________________________________, ________________________________ of NBD
Bank, National Association, Detroit, Michigan, do hereby certify that the
foregoing is a true and exact copy of the By-Laws of NBD Bank, National
Association as effective May 17, 1993.
IN WITNESS WHEREOF, I have hereunto affixed my name as
_______________________________ and have caused the corporate seal of said Bank
to be hereto affixed this date ___________________________.
<PAGE> 21
<TABLE>
EXHIBIT (7)
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK, N.A.
in the State of Michigan, at the close of business on March 31, 1994 published in response to call made by Comptroller of
the Currency, under title 12, United States Code, Section 161.
ASSETS
<CAPTION>
Thousands
of dollars
<S> <C> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . 1,598,709
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631,501
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,614,212
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,787,067
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794,969
Securities purchased under agremeents to resell . . . . . . . . . . . . . . . . . . . . . . . . . . 53,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . . . 15,188,185
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . 209,428
Loans and leases, net of unearned income and allowance . . . . . . . . . . . . . . . . . . . . . . . . 14,978,757
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,394
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . 299,299
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,793
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . 30
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . 181,208
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,826
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640,843
-----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,739,108
============
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,997,544
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,416,150
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,581,394
In foreign offices, Edge and Agreement subssidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . 2,799,396
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,091
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,747,305
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,958
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,707,653
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,096,849
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,791
Other borrowed money:
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,231,258
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699,872
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . 17,466
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . 181,208
Notes and debentures subordinated to deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523,914
-----------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,999,909
============
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111,858
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618,964
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,046,501
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . (43,245)
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . 5,121
-----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,739,199
-----------
Total liabilities and equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,739,108
============
I, Jason N. Hansen, Second Vice President of the above-named bank, do hereby declare that this Report of Condition is
true and correct to the best of my knowledge and belief.
JASON N. HANSEN
April 28, 1994
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that
it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions
and is true and correct.
DON H. BARDEN
JOHN E. LOBBIA
THOMAS H. JEFFS II
Directors
</TABLE>
<PAGE> 1
================================================================================
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
_______________________
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) X
-----
____________________________
NBD BANK, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
<TABLE>
<S> <C> <C>
611 Woodward Avenue
Detroit, Michigan 48226 38-0864715
(Address of principal executive offices) (Zip Code) (I.R.S. Employer Identification No.)
</TABLE>
NBD BANK, NATIONAL ASSOCIATION
611 WOODWARD AVE.
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: W. HARRISON SMITH (313) 225-2917
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
NATIONAL CITY CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 34-1111088
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
National City Center
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
1. GENERAL INFORMATION
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
<TABLE>
<S> <C>
AS OF JUNE 24, 1994
- -------------------------------------------------------------------------------
COLUMN A COLUMN B
- -------------------------------------------------------------------------------
TITLE OF CLASS AMOUNT OUTSTANDING
- -------------------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
</TABLE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is a Trustee under a Subordinated Indenture dated as of
February 1, 1994, under which $250,000,000 of the obligors's 6-5/8%
Subordinated Notes Due 2004 are issued and outstanding. Such securities
were issued under a Section 305(b)(2) filing of March 18, 1991, providing
for the issuance of Subordinated Debt Securities.
The Trustee is also designated as a trustee under the obligor's Section
305(b)(2) filing of March 18, 1991, providing for the issuance of Senior
Debt Securities. However, the Trustee is not serving as trustee for any
securities issued thereunder.
2
<PAGE> 3
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of the
Trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Voting securities of the Trustee owned by the obligor and its directors,
partners and executive officers, taken as a group, do not exceed one
percent of the outstanding voting securities of the
Trustee.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do not exceed
one percent of the outstanding voting securities of the Trustee.
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns beneficially
or holds as collateral security for obligations in default does not exceed
one percent of the outstanding securities of the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of an
underwriter for the obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the Trustee (1) owns 10% or more of the voting
securities of the obligor, or (2) is an affiliate, other than a
subsidiary, of the obligor.
3
<PAGE> 4
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PER CENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of a person who, to the knowledge of
the Trustee, owns 50 percent or more of the voting securities of the
obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
The obligor is not indebted to the Trustee.
13. DEFAULTS BY THE OBLIGOR.
The Trustee is not aware of any Defaults under the existing Indenture, to
which reference is made in Item #4.
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
16. LIST OF EXHIBITS.
(1) Articles of Association of the Trustee.
(2) Certificate of Authority of the Trustee to commence business.
Incorporated by reference to Exhibit (2) filed with Amendment No. 1
to Form T-1 Statement, Registration No. 22-4501.
(3) Authorization of the Trustee to exercise corporate trust powers.
Incorporated by reference to Exhibit (3) filed with
Amendment No. 1 to Form T-1 Statement, Registration No. 22-4501.
(4) By-Laws of the Trustee.
(5) Not Applicable.
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
4
<PAGE> 5
Exhibit (6) filed with Amendment No. 1 to Form T-1
Statement, Registration No. 22-4501.
(7) Report of condition of Trustee.
(8) Not applicable.
(9) Not applicable.
5
<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD BANK, NATIONAL ASSOCIATION, a national association organized
and existing under the laws of the United States of America, has duly caused
this statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Detroit, State
of Michigan on the 24th day of June, 1994.
NBD BANK, NATIONAL ASSOCIATION
(Trustee)
By: /s/ W. Harrison Smith
----------------------------
W. Harrison Smith
Second Vice President
6
<PAGE> 7
EXHIBIT (1)
NBD BANK, NATIONAL ASSOCIATION
Detroit, Michigan
Charter No. 13671
ARTICLES OF ASSOCIATION
Effective January 1, 1973
(As amended effective May 1, 1990)
FIRST.
The title of the Association shall be NBD Bank, National Association.
SECOND.
The place where its banking house or office shall be located, and its
operations of discount and deposit carried on, and its general business
conducted, shall be the City of Detroit, Wayne County, State of Michigan.
The Board of Directors shall have the power to change the location of the main
office to any other place within the limits of the City of Detroit, without the
approval of the shareholders and shall have the power to establish or change
the location of any branch or branches of the Association to any other
location, without the approval of the shareholders.
THIRD.
The Board of Directors shall consist of such number of persons, not less than
five nor more than twenty-five, as from time to time shall be determined by a
majority of the votes to which all shareholders are at the time entitled. Each
Director, during the full term of his or her directorship, shall own a minimum
of $1,000 aggregate par value of stock of this Association or a minimum par
value, market value or equity interest equivalent to $1,000 of common stock in
the bank holding company controlling this Association. The Board of Directors,
by vote of the majority of the entire Board, may, between annual meetings of
the shareholders, increase the number of members of the Board of Directors by
not more than two where the number of directors last elected by shareholders
was fifteen or less or by not more than four where the number of directors last
elected by shareholders was sixteen or more, but in no event so that the total
number of directors shall exceed twenty-five, and by like vote appoint
qualified persons to fill the vacancies created thereby.
FOURTH.
The regular annual meeting of the shareholders of this Association shall be
held at its main banking house, or other convenient place duly authorized by
the Board of Directors on such day of each year as is specified therefor in the
By-Laws. All elections shall be held according to such regulations as may be
prescribed by the Board of Directors, not inconsistent with the provisions of
the National Bank Act and of these Articles of Association.
<PAGE> 8
FIFTH.
The authorized amount of the capital stock of the Association shall be
10,000,000 shares of common stock of the par value of $12.50 each. The
authorized amount of the capital stock of the Association may be increased or
decreased from time to time in accordance with provisions of the laws of the
United States.
In case of the increase of the capital of the Association each shareholder
shall have the privilege of subscribing for such number of shares of the
proposed increase of the capital stock as he may be entitled to according to
the number of shares owned by him before the stock is increased, provided that
no holder of shares of the capital stock of the Association shall have any
preemptive right of subscription to any shares of the capital stock of the
Association which are authorized and kept available for issuance in conversion
of obligations of the Association or any preferential right of subscription to
convertible obligations specifically authorized by the shareholders to be
issued free of such preferential right of subscription.
The Association, at any time and from time to time, may authorize and issue
debt obligations not convertible into capital stock of the Association, without
the approval of the shareholders.
SIXTH.
(a) Powers of Board of Directors. The Board of Directors, a majority of whom
shall be a quorum to transact business, shall have power to manage and
administer the business and affairs of the Association and to prescribe By-Laws
for the regulation of the business of the Association and the conduct of its
affairs not inconsistent with law and these Articles of Association. Except as
expressly limited by law, all corporate powers of the Association shall be
vested in and may be exercised by the Board of Directors.
(b) Officers and Employees. The Board of Directors shall have power to elect
or appoint such officers and employees as may be required to transact the
business of the Association, to define their duties, to fix the salaries to be
paid to them, to require bonds from them and to fix the penalty thereof, and to
continue them in office or dismiss them.
(c) Indemnification of Directors, Officers and Employees. Any person shall be
indemnified and reimbursed by the Association for expenses reasonably incurred
by him and liabilities imposed upon him in connection with or arising out of
any action, suit or proceeding, civil or criminal, or threat thereof, in which
he may be involved by reason of his being or having been a director, officer,
or employee of the Association or of any firm, corporation or organization
which he served in any capacity at the request of the Association; provided,
however, that no person shall be so indemnified or reimbursed (a) in relation
to any matter in such action, suit or proceeding as to which he shall finally
be adjudged to have been guilty of breach of duty as a director, officer, or
employee of the Association or (b) in relation to any matter in such action,
suit or proceeding, or threat thereof, which has been made the subject of a
compromise settlement, unless in either such case such person acted in good
faith for a purpose which he
2
<PAGE> 9
reasonably believed to be in the best interest of the Association and, in a
criminal action or proceeding, in addition, had no reasonable cause to believe
that his conduct was unlawful or, (c) against expenses, penalties, or other
payments incurred in an administrative proceeding or action instituted by an
appropriate bank regulatory agency which proceeding or action results in a
final order assessing civil money penalties or requiring affirmative action by
such person in the form of payments to the bank. The determination whether the
conduct of such person met the standard required in order to entitle him to
indemnification and reimbursement in relation to any matter described in (a) or
(b) of the preceding sentence may be made by the Board of Directors of the
Association, or by the holders of record of a majority of the outstanding
shares of the Association or by a court of competent jurisdiction. No
adjudication of liability or guilt as to such person shall in itself create a
presumption that he did not meet the standard of conduct required in order to
entitle him to indemnification and reimbursement hereunder. Neither the
Association nor its directors or officers shall be liable to anyone for any
determination of such directors or officers as to the existence or absence of
conduct which would provide a basis for making or refusing to make any payment
hereunder or for taking or omitting to take any other action hereunder, in
reliance upon the advice of counsel. A court of competent jurisdiction may
make a determination as to the right of a person to indemnification and
reimbursement hereunder in any specific case upon the application of such
person, despite the failure or refusal of the directors and shareholders to
make provision therefor. The foregoing right of indemnification and
reimbursement shall not be exclusive of other rights to which such person may
be entitled as a matter of law and shall inure to the benefit of his heirs,
executors and administrators.
SEVENTH.
The Association shall have succession from the date of its organization
certificate until such time as it may be dissolved by the act of its
shareholders according to law or until its franchise becomes forfeited by
reason of violation of law, or until terminated by either a general or a
special act of Congress or until its affairs be placed in the hands of a
receiver and finally wound up by him.
EIGHTH.
Except as otherwise specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the Board of
Directors or by the holders of at least ten per cent of the then outstanding
shares of stock. Every such special meeting shall be called by mailing, not
less than ten days before the time fixed for the meeting, to all shareholders
of record entitled to act and vote at such meeting, at their respective
addresses as shown on the books of the Association, a notice stating the
purposes of the meeting. Such notice may be waived in writing.
3
<PAGE> 10
NINTH.
These Articles of Association may be changed or amended at any time by
shareholders owning a majority of the stock of the Association in any manner
not inconsistent with the provisions of law.
TENTH.
Any action required or permitted to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if all of the shareholders entitled to vote thereon consent thereto in
writing.
4
<PAGE> 11
Exhibit (4)
NBD BANK, NATIONAL ASSOCIATION
DETROIT, MICHIGAN
CHARTER NO. 13671
_________________________________________________________________
BY-LAWS
Effective January 1, 1973
(As amended effective May 17, 1993)
_________________________________________________________________
ARTICLE I
SHAREHOLDERS' MEETINGS
Section 1. The regular Annual Meeting of the Shareholders of this Bank for the
election of directors and for the transaction of any other business as may
properly come before the meeting shall be held on the third Monday in May of
each year at eleven o'clock in the forenoon or at such other date and hour as
from time to time may be designated by the Board of Directors.
Nominations for election to the Board of Directors may be made by the Board of
Directors or by any shareholder entitled to vote for the election of directors.
Notification of nominations, other than those made by or on behalf of the
existing management of the Bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D.C. not less than fourteen days nor more than fifty days
prior to the annual meeting of shareholders. Such notification shall contain
the following information, to the extent known to the notifying shareholders:
(a) The name and address of each proposed nominee; (b) The principal occupation
of each proposed nominee; (c) The total number of shares of capital stock of
the Bank that will be voted for each proposed nominee; (d) The names and
residence addresses of the notifying shareholders; and (e) The number of shares
of capital stock of the Bank owned by the notifying shareholders. Any
nomination not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions, the vote
tellers may disregard all votes cast for such nominee unless otherwise properly
nominated in accordance herewith.
<PAGE> 12
2
Section 2. All proxies secured for any annual or special meeting of
shareholders shall be dated and filed by the Cashier with the records of the
meeting. No officer or regular employee of the Bank shall act as proxy at any
shareholders' meeting, but any other person or group of persons including
attorneys of the Bank and Directors of the Bank who are not officers, may act
as proxy at any shareholders' meeting.
Section 3. The Cashier, upon receiving the returns of the judges of election
as aforesaid, shall cause the same to be recorded upon the minute book of the
Bank, and shall notify the directors-elect of their election, and of the time
at which they are required to meet at the banking house of the Bank for the
purpose of organizing the new Board of Directors. If at the time fixed for the
meeting of the directors- elect there is not a quorum in attendance, the
members present may adjourn from time to time until a quorum is secured; and no
business shall be transacted prior to their taking the oath of office as
provided by law.
Section 4. If, for any cause, the annual election of Directors is not held on
the date fixed herein or in the Articles of Association, the Directors in
office shall order a special election to be held on some other day which shall
be designated and of which notice shall be given in accordance with Section
5149, United States Revised Statutes, as amended, and for which nominations for
election to the Board of Directors and notifications thereof shall be made,
judges appointed, returns made and recorded, and the directors-elect notified
according to the provisions of Sections 1, 2 and 3 of this Article I; except
that as to any nomination for election to the Board of Directors at such
special election, other than those made by or on behalf of the existing
management of the Bank, if less than twenty-one days' notice of the meeting is
given to shareholders, notification of such nomination shall be delivered or
mailed to the President of the Bank and to the Comptroller of the Currency not
later than the close of business on the seventh day following the day on which
the notice of meeting was mailed.
Section 5. Special meetings of shareholders may be held as provided in the
Articles of Association and any amendments thereof.
Section 6. For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, annual or special, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors shall fix in
advance a record date and hour for any such determination of shareholders, such
date in any case to be not more than fifty (50) days and, in case of a meeting
of shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof.
<PAGE> 13
3
ARTICLE II
DIRECTORS' MEETINGS
Section 1. The regular meetings of the Board of Directors shall be held on
such date and at such time each month as shall from time to time be determined
by the Board of Directors, except that in the month in which the regular annual
meeting of the shareholders is held, the regular meeting of the Board of
Directors shall be held following and on the same day as the regular meeting of
the shareholders. When any regular meeting of the Board of Directors falls
upon a holiday, the meeting shall be held on such other day as the Board of
Directors may previously designate. Special meetings of the Board of Directors
may be called at any time by the Cashier or by any officer of higher rank than
Vice President, or any three Directors. Notice of each special meeting shall
be given personally or by duly mailing, telephoning, or telegraphing the same,
at least twenty-four hours before the meeting. Any or all Directors may waive
notice of any meeting either before or after the meeting.
ARTICLE III
OFFICERS
Section 1. The officers of this Bank shall include a Chairman of the Board and
a President and may include one or more Vice Chairman of the Board (each of
whom shall be a member of the Board of Directors), and shall include one or
more Vice Presidents, a Cashier, one or more Deputy Cashiers, and such other
officers as may be from time to time required for the prompt and orderly
transaction of its business, to be elected by the Board of Directors. The same
person may hold any two or more offices, and in any such case, these By-Laws
shall be construed and understood accordingly; provided that the same person
may not hold the offices of Chairman of the Board and Cashier or President and
Cashier. The duties and authorities of the officers of the Bank, other than
those mentioned in these By-Laws, shall be those usually pertaining to their
respective offices, or as may be designated by the Chairman of the Board,
subject to the supervision and direction of the Board of Directors.
Section 2. The Chairman of the Board, the President and any Vice Chairman of
the Board shall hold office for the current year for which the Board of
Directors of which they shall be members was elected, unless they shall resign,
become disqualified, or be removed; and any vacancy occurring in any of such
offices may be filled by the remaining members of the Board of Directors.
Section 3. The Chairman of the Board shall be the chief executive officer of
the Bank, shall preside at meetings of shareholders and directors, shall have
general supervision and direction of the business of the Bank, and perform such
other duties as may be designated by the Board of Directors. The President
shall perform such duties as may be designated by the Board of Directors and,
in the event of the absence or disability of the Chairman of the Board, shall
have his powers and duties. The Vice Chairman of the Board shall perform such
duties as may be designated by the Board of Directors.
<PAGE> 14
4
Section 4. The Cashier, the Deputy Cashiers, and all other officers shall be
elected, and employees shall be appointed, to hold their respective offices and
positions during the pleasure of the Board of Directors, and shall have such
duties, other than those mentioned herein, as shall be prescribed by the Board
of Directors.
Section 5. The Cashier of this Bank shall be responsible for all moneys,
funds, indemnity bonds, stock books, and records, and other valuables of the
Bank, and shall qualify under the bankers blanket bond covering the bank
officers and employees, approved as to type and amount from year to year by the
Board of Directors, conditioned for the faithful and honest discharge of his
duties as such Cashier, and that he will faithfully apply and account for all
such moneys, funds and valuables, and deliver the same to the order of the
Board of Directors of this Bank, or to the person or persons authorized to
receive them.
Section 6. The other officers of this Bank shall be responsible for all such
sums of money and property of every kind as may be entrusted to their care or
placed in their hands by the Board of Directors or by the Cashier, or otherwise
come into their hands as officers, and shall qualify under the bankers blanket
bond covering the bank officers and employees, approved as to type and amount
from year to year by the Board of Directors, conditioned for the faithful
discharge of their duties as such officers, and that they will faithfully and
honestly apply and account for all sums of money and other property of this
Bank that may come into their hands as such officers, and pay over and deliver
the same to the order of the Board of Directors, or to any other person or
persons authorized by the Board of Directors to receive the same.
Section 7. All agents and employees shall be responsible for all such sums of
money, property and funds of every description as may from time to time be
placed in their hands by the Cashier, or otherwise come into their possession
as agents or employees; and shall qualify under the bankers blanket bond
covering the bank officers and employees, approved as to type and amount from
year to year by the Board of Directors, conditioned for the honest and faithful
discharge of their duties as agents and employees, and that they will
faithfully apply, account for, and pay over all moneys, property, and funds of
every description that may come into their hands, by virtue of their position,
to the order of the Board of Directors aforesaid, or to such person or persons
as may be authorized to demand and receive the same.
ARTICLE IV
SEAL
Section 1. The following is an impression of the seal adopted by the Board of
Directors of this Bank.
[Impression of seal]
<PAGE> 15
5
Section 2. The Cashier shall be the official custodian of the seal and shall
be responsible for the safekeeping and proper use thereof. The seal shall not
be used or affixed to any paper or document whatsoever except by him or any
Deputy Cashier, or such other officers or employees of the Bank as may be
authorized by the Cashier to affix the seal.
ARTICLE V
CONVEYANCE OF REAL ESTATE
Section 1. All transfers and conveyances of real estate shall be made by the
Bank, under seal, in accordance with the orders of the Board of Directors, and
shall be signed by the President or any Vice President or any other officer,
employee or agent of the Bank as may be designated by the Board of Directors,
and shall be attested by the Cashier or any Deputy Cashier, or such other
officer or employee of this Bank as may be authorized by the Cashier to affix
the seal.
ARTICLE VI
BANKING HOURS
Section 1. The Bank shall be open for business upon such hours of each day of
the year as the Board of Directors shall from time to time direct and the Board
of Directors may, in its discretion, prescribe different banking hours for
different classes of business and different banking hours for one or more
branch offices, than it prescribes for its principal banking office.
Section 2. The Board of Directors may delegate to the chief executive officer
this authority to establish the hours of each day of the year that the bank
shall be open for business, including the discretion to prescribe different
banking hours for one or more branch offices, than it prescribed for the Bank's
principal banking office; reserving, however, to itself the authority to act
concurrently in such matters.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. Committee. There shall be a committee composed of not less than
four (4) members to be known as the Executive Committee which shall consist of
all the officer-directors of the Bank and two (2) other directors appointed as
shall be provided by the Board of Directors. Provision shall be made by the
Board of Directors for the appointment of alternates to act for members in the
event of their absence or disability.
Section 2. Presiding Officer. The Chairman of the Board shall act as
presiding officer at any meeting of the Executive Committee. In the event of
the absence or disability of the Chairman of the Board, the President shall act
as presiding officer. In the event of the absence or disability of the
Chairman of the Board and President, another officer-director, if present,
shall act as presiding officer. If no officer-director
<PAGE> 16
6
member is present, an officer-director of the Bank's parent holding company may
serve as the presiding officer, and if no officer-director of the parent
holding company is present, the other members present at the meeting shall
elect one of their members as presiding officer.
Section 3. Quorum. Any two (2) persons, each of whom is a member or alternate
member of the Executive Committee, of whom not less than one (1) shall be
non-officer directors, shall constitute a quorum for the transaction of
business at any meeting of the Executive Committee.
Section 4. Duties. The Executive Committee shall function from day to day or
such other short intervals as shall be found requisite and expedient in the
carrying on of the business and affairs of the Bank, and between meetings of
the Board of Directors, said Committee, within the scope of the jurisdiction
and functions assigned by the Board of Directors to such Committee, shall have
and may exercise, so far as may be permitted by law, all power and authority of
the Board of Directors (including the right to authorize the seal of the Bank
to be affixed to all instruments on which the same may be required or
appropriate) and shall have power, but not by way of limitation of its general
powers, to discount and purchase bills, notes, and other evidences of debt, and
to buy and sell bills of exchange. A record of the meetings of the Committee
shall be kept, which shall be accessible to inspection by the Directors at all
times, and the Committee shall, at each regular meeting of the Board of
Directors and at such other times as the Board of Directors may request, submit
in writing a full report of its actions, including a report of all bills,
notes, and other evidences of debt discounted and purchased by it for the Bank
since its last report. The Board of Directors shall approve or disapprove the
report of the Executive Committee, such action to be recorded in the minutes of
the meeting; provided, however, that no rights of third parties shall be
affected by any action of the Board of Directors, if such rights have attached
by virtue of action of the Executive Committee within the scope of the
jurisdiction and functions assigned by the Board of Directors to said
Committee.
ARTICLE VIII
MINUTE BOOK
Section 1. The organization papers of this Bank, the returns of the judges of
the elections, the proceedings of all regular and special meetings of the Board
of Directors and of the shareholders, the By-Laws and any amendments thereto,
and reports of the committees of the Board of Directors shall be recorded in
the minute book; and the minutes of each meeting shall be signed by the person
presiding at such meeting and attested by the Cashier.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. The stock of this Bank shall be assignable and
<PAGE> 17
7
transferable only on the books of this Bank, subject to the
restrictions and provisions of the National Banking Laws; and a transfer book
shall be provided in which all assignments and transfers of stock shall be
made.
Section 2. The stock transfer books of the Bank shall not be closed for the
determination of shareholders entitled to dividends, but any dividend can be
made payable to shareholders of record on the date such dividend is declared,
or any subsequent date. The Bank shall be fully protected in giving notices of
meetings, paying dividends and doing such other things as require a knowledge
of the names of the shareholders of the Bank, in relying upon the names of the
shareholders as they appear upon the stock books of the Bank.
Section 3. Certificates of stock, bearing the manual or facsimile signature of
the Chairman of the Board, President or any Vice President, and the Cashier, or
the manual or facsimile signature of any two of such other employees of the
Bank as may be designated for such purpose from time to time by resolution of
the Board of Directors, and bearing the impressed or facsimile seal of the
Bank, may be issued to shareholders. The death, resignation, discharge or
incapacity of any person whose manual or facsimile signature appears on any
certificate, shall not affect the validity of such certificate of stock,
whether such certificate has theretofore or is thereafter issued. All
certificates of stock shall state upon the face thereof that the stock is
transferable only upon the books of the Bank; and when stock is transferred,
the certificates therefor shall be returned to the Bank, canceled, preserved
and new certificates issued.
ARTICLE X
EXPENSES
Section 1. All the current expenses of the Bank shall be paid by the Cashier
and such other officers of the Bank as may be selected by the Board of
Directors, who shall, every month or more often, if required, make a detailed
statement thereof in writing to the Board of Directors.
ARTICLE XI
CONTRACTS
Section 1. All contracts, checks, drafts, etc., shall be signed by the
Cashier, or any officer of the rank of Vice President or higher rank, or any
other officer or employee designated by the Board of Directors.
ARTICLE XII
EXAMINING COMMITTEE
Section 1. (a) Committee. There shall be appointed annually by the Board of
Directors an Examining Committee composed of not less than three Directors none
of whom shall be officers of the Bank.
<PAGE> 18
8
(b) Duties. The Examining Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a suitable
examination of the financial records and operations of the Bank
through a program of continuous internal audits. The Committee may
employ independent certified public accounting firms of recognized
standing to make such additional examinations and audits as it may
deem advisable. The examinations caused to be made by the Committee
shall meet any examination requirements prescribed from time to time
by the Comptroller of the Currency or other regulatory authorities
having jurisdiction and may be made in conjunction with examinations
of the Comptroller of the Currency.
(ii) Report to the Board of Directors at least once in each calendar year
the results of the examinations made and such conclusions and
recommendations as the Committee deems appropriate.
ARTICLE XIII
TRUST DIVISION
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the Bank
shall be exercised through the Trust Division, subject to such regulations as
the Comptroller of the Currency shall from time to time establish. All books
and records of the Trust Division shall be kept separate and distinct from the
other books and records of the Bank.
Section 2. Officer in Charge. The Trust Division shall be placed under the
management and immediate supervision of an officer appointed by the Board of
Directors. The duties of such officer shall be to cause the policies and
instructions of the Board of Directors, the chief executive officer and the
Trust Committee, with respect to the fiduciary accounts entrusted to the Bank,
to be carried out, and to supervise the due performance of such accounts in
accordance with law and their terms.
Section 3. Other Officers. Any other officer specifically appointed for Trust
Division duties by the Board of Directors shall exercise such powers and
perform such duties as are prescribed by these By-Laws, or as may be assigned
to them by the Board of Directors, the chief executive officer or the officer
in charge of the Trust Division.
Section 4. Signature and Authentication of Instruments. All instruments in
which the Bank is named as Trustee or in any other fiduciary capacity and all
authentications or certificates by the Bank as Trustee under any mortgage, deed
of trust or other instrument securing bonds, debentures, notes or other
obligations of any individual, association or corporation, and all certificates
as Registrar or Transfer Agent and all certificates of deposit for stocks and
bonds, interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or countersigned in
behalf of
<PAGE> 19
9
the Bank by any Trust Officer or officer of higher rank specifically elected or
appointed for Trust Division duties or the Cashier or any officer of the rank
of Vice President or higher rank or by any other person appointed for that
purpose by the Board of Directors.
Section 5. Custody of Investments. The investments of each fiduciary account
shall be kept separate from the assets of the Bank, and shall be placed in the
joint custody or control of not less than two of the officers or employees of
the Bank designated for that purpose by the Board of Directors. All such
officers and employees shall be adequately bonded. The investments of each
such fiduciary account shall be either: kept separate from those of all other
accounts, except as provided under the regulations of the Comptroller of the
Currency for collective investment, or adequately identified as the property of
the relevant account.
Section 6. Trust Committee. There shall be a Trust Committee which shall be
composed of not less than five (5) members of the Board of Directors, at least
three (3) of whom shall be non-officer directors, and may include one or more
officers of the Bank who are not directors, appointed by the Board of Directors
to serve during its pleasure. The Trust Committee shall determine the policies
of the Trust Division. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary powers of the
Bank are assigned, and the investment of funds and disposition of investments
held by the Bank in a fiduciary capacity. It shall have such other powers and
duties relating to the administration of fiduciary accounts entrusted to the
Bank as may be conferred upon it from time to time by the Board of Directors.
The Trust Committee shall meet at least once a month and shall keep minutes of
its meetings showing the disposition of all matters considered and passed upon,
and shall make monthly reports to the Board of Directors.
ARTICLE XIV
QUORUM
Section 1. Except as otherwise provided by statute or in the Articles of
Association, a majority of all the shareholders or Directors, as the case may
be, shall be required to constitute a quorum to do business. Should there be
no quorum at any regular or special meeting of shareholders or Directors, the
shareholders or Directors present may adjourn from day to day until a quorum is
in attendance. In the absence of a quorum no business shall be transacted.
ARTICLE XV
CHANGES IN BY-LAWS
Section 1. These By-Laws may be repealed, altered, or amended, in whole or in
part, by the vote of a majority of the Directors, at any regular or special
meeting of the Board of Directors upon giving at least one week's prior notice
of such proposed change or changes.
<PAGE> 20
10
I, _________________________________, ________________________________ of NBD
Bank, National Association, Detroit, Michigan, do hereby certify that the
foregoing is a true and exact copy of the By-Laws of NBD Bank, National
Association as effective May 17, 1993.
IN WITNESS WHEREOF, I have hereunto affixed my name as
_______________________________ and have caused the corporate seal of said Bank
to be hereto affixed this date ___________________________.
<PAGE> 21
<TABLE>
EXHIBIT (7)
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK, N.A.
in the State of Michigan, at the close of business on March 31, 1994 published in response to call made by Comptroller of
the Currency, under title 12, United States Code, Section 161.
ASSETS
<CAPTION>
Thousands
of dollars
<S> <C> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . 1,598,709
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631,501
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,614,212
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,787,067
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794,969
Securities purchased under agremeents to resell . . . . . . . . . . . . . . . . . . . . . . . . . . 53,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . . . 15,188,185
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . 209,428
Loans and leases, net of unearned income and allowance . . . . . . . . . . . . . . . . . . . . . . . . 14,978,757
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,394
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . 299,299
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,793
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . 30
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . 181,208
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,826
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640,843
-----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,739,108
============
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,997,544
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,416,150
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,581,394
In foreign offices, Edge and Agreement subssidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . 2,799,396
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,091
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,747,305
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,958
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,707,653
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,096,849
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,791
Other borrowed money:
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,231,258
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699,872
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . 17,466
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . 181,208
Notes and debentures subordinated to deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523,914
-----------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,999,909
============
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111,858
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618,964
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,046,501
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . (43,245)
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . 5,121
-----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,739,199
-----------
Total liabilities and equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,739,108
============
I, Jason N. Hansen, Second Vice President of the above-named bank, do hereby declare that this Report of Condition is
true and correct to the best of my knowledge and belief.
JASON N. HANSEN
April 28, 1994
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that
it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions
and is true and correct.
DON H. BARDEN
JOHN E. LOBBIA
THOMAS H. JEFFS II
Directors
</TABLE>
