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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 1998
REGISTRATION NO.333-45609
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
(ON FORM S-8)
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NATIONAL CITY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
1900 East Ninth Street
Cleveland, Ohio
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
34-1111088
(I.R.S. EMPLOYER IDENTIFICATION NO.)
44114
(ZIP CODE)
Fort Wayne National Corporation 1985 Stock Incentive Plan
Fort Wayne National Corporation 1994 Stock Incentive Plan
Fort Wayne National Corporation 1994 Nonemployee Director Stock Incentive Plan
(FULL TITLE OF THE PLAN)
DAVID L. ZOELLER, Esq.
Senior Vice President,
General Counsel and Secretary
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(216) 575-2978
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
National City Corporation ("National City") hereby incorporates in this
Registration Statement by reference its Annual Report on Form 10-K for the year
ended December 31, 1997 and its Current Reports on Form 8-K dated January 13,
1998 and March 9, 1998, the description of National City Common Stock
("National City Common") set forth in the Restated Certificate of Incorporation
of the Registrant, as amended (filed as Exhibit 3.1 to Registration Statement
No. 33-49823), each as filed with the Commission pursuant to the Exchange Act.
All documents filed by National City pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the respective dates 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by reference herein shall be deemed to be modified or superseded for purposes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 Registration Statement to the extent that such statement is modified or
superseded by a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
THIS REGISTRATION STATEMENT INCORPORATES DOCUMENTS OF NATIONAL CITY BY
REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THE NATIONAL
CITY DOCUMENTS (OTHER THAN CERTAIN EXHIBITS TO ANY SUCH DOCUMENTS) ARE
AVAILABLE TO ANY PERSON TO WHOM A COPY OF THIS REGISTRATION STATEMENT HAS BEEN
DELIVERED UPON WRITTEN OR ORAL REQUEST TO NATIONAL CITY CORPORATION, 1900 EAST
NINTH STREET, CLEVELAND, OHIO 44114, ATTENTION: THOMAS A. RICHLOVSKY, SENIOR
VICE PRESIDENT AND TREASURER, TELEPHONE NUMBER (216) 575-2126, AND WILL BE
FURNISHED WITHOUT CHARGE.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares of National City Common have been passed upon
for National City by Carlton E. Langer, Vice President and Assistant General
Counsel of National City. Mr. Langer owns currently exercisable options to
purchase shares of National City Common.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
National City. Under Section 145 of the Delaware General Corporation
Law (the "DGCL"), directors, officers, employees and other individuals may be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of National City -- a "derivative action") if
they acted in good faith and in a manner they reasonably believed to be in, or
not opposed to, the best interests of National City, and, regarding any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions. The DGCL
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to National City. To the extent
that a person otherwise
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eligible to be indemnified is successful on the merits of any claim or defense
described above, indemnification for expenses (including attorneys' fees)
actually and reasonably incurred is mandated by the DGCL.
Article VI of National City's By-laws provides that National City must
indemnify, to the fullest extent authorized by the DGCL, each person who was or
is made party to, is threatened to be made a party to, or is involved in, any
action, suit or proceeding because he is or was a director, officer or employee
of National City or of any subsidiary (or was serving at the request of
National City as a director, trustee, officer, employee or agent of another
entity) while serving in such capacity against all expenses, liabilities or
loss incurred by such person in connection therewith. The amount of any
indemnification to which any person shall otherwise be entitled under Article
VI shall be reduced to the extent that such person shall otherwise be entitled
to valid and collectible indemnification provided by a subsidiary of National
City or any other source.
Article VI also provides that National City may pay expenses incurred in
defending the proceedings specified above in advance of their final
disposition. National City may advance expenses to any director, officer or
employee only upon delivery to National City of an undertaking by the
indemnified party stating that he has reasonably incurred or will reasonably
incur actual expenses in defending an actual civil or criminal suit, action or
proceeding in his capacity as such director, officer or employee, or arising
out of his status as such director, officer or employee, and that he undertakes
to repay all amounts so advanced if it is ultimately determined that the person
receiving such payments is not entitled to be indemnified.
Finally, Article VI provides that National City may maintain insurance, at
its expense, to protect itself and any of its directors, officers, employees or
agents against any expense, liability or loss, regardless of whether National
City has the power or obligation to indemnify that person against such expense,
liability or loss under the provisions of Article VI.
The right to indemnification is not exclusive of any other right which any
person may have or acquire under any statute, provision of National City's
Certificate or By-laws, or otherwise. Additionally, no amendment to National
City's Certificate can increase the liability of any director or officer for
any act or omission by him prior to such amendment.
ITEM 8. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
3.1 Restated Certificate of Incorporation of National City Corporation,
as amended, (filed as Exhibit 3.1 to National City Corporation's
Annual Report on Form 10-K for the fiscal year ended December 31,
1997 and incorporated herein by reference).
3.2 National City Corporation First Restatement of By-Laws adopted April
27, 1987 (As Amended through October 24, 1994) (filed as Exhibit 3.2
to Registrant's Form S-4 Registration Statement No. 33-56539 dated
November 18, 1994 and incorporated herein by reference).
4.1 Instruments defining the rights of holders of certain long-term debt
of National City and its consolidated subsidiaries are not filed as
exhibits because the amount of debt under such instruments is less
than 10% of the total consolidated assets of National City.
National City undertakes to file these instruments with the
Commission upon request.
4.2 Credit Agreement dated as of February 2, 1996, by and between
National City and the banks named therein (filed as Exhibit 4.2 to
Registrant's Form S-4 Registration Statement No. 333-01697 dated
March 13, 1996 and incorporated herein by reference).
4.3 Certificate of Stock Designation dated as of February 2, 1998
designating National City Corporation's 6% Cumulative Convertible
Preferred Stock, Series 1, without par value, and fixing the powers,
preferences, rights, qualifications, limitations and restrictions
thereof (filed as Appendix D to Registration Statement No. 333-45609
and incorporated herein by reference) in addition to those set forth
in National City Corporation's Restated Certificate of Incorporation,
as amended (filed as Exhibit 3.1 to National City Corporation's
Annual Report on Form 10K for the fiscal year ended December 31,
1997 and incorporated herein by reference).
4.4 Form of Fort Wayne National Corporation 1985 Stock Incentive Plan
(filed as Exhibit 4.4).
4.5 Form of Fort Wayne National Corporation 1994 Stock Incentive Plan
(filed as Exhibit 4.5).
4.6 Form of Fort Wayne National Corporation 1994 Nonemployee Director
Stock Incentive Plan (filed as Exhibit 4.6).
5.1 Opinion of Carlton E. Langer as to the legality of the National
City Common being registered (filed as Exhibit 5.1).
23.1 Consent of Ernst & Young LLP, Independent Auditors for National City
Corporation (filed as Exhibit 23.1).
23.2 Consent of Carlton E. Langer (included in his opinion filed as
Exhibit 5.1 to this Registration Statement and incorporated herein
by reference).
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*24.1 Power of Attorney.
*24.2 Power of Attorney.
* Previously filed.
ITEM 9. 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(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;
(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 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.
"The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information."
"Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed 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."
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT NO. 1 (ON FORM S-8) TO FORM S-4 REGISTRATION STATEMENT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THERETO DULY AUTHORIZED, IN THE CITY OF
CLEVELAND, STATE OF OHIO, ON THE 20TH DAY OF MARCH, 1988.
NATIONAL CITY CORPORATION
By /s/ THOMAS A. RICHLOVSKY
Thomas A. Richlovsky
Senior Vice President and
Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
POST-EFFECTIVE AMENDMENT NO. 1 (ON FORM S-8) TO FORM S-4 REGISTRATION STATEMENT
HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE
INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ DAVID A. DABERKO* Chairman and Chief Executive March 20, 1998
David A. Daberko Officer, Director (Principal
Executive Officer)
SANDRA H. AUSTIN Director
Sandra H. Austin
/s/ CHARLES H. BOWMAN* Director March 20, 1998
Charles H. Bowman
EDWARD B. BRANDON Director
Edward B. Brandon
/s/ JOHN G. BREEN* Director March 20, 1998
John G. Breen
/s/ JAMES S. BROADHURST* Director March 20, 1998
James S. Broadhurst
DUANE E. COLLINS Director
Duane E. Collins
/s/ DANIEL E. EVANS* Director March 20, 1998
Daniel E. Evans
/s/ OTTO N. FRENZEL III* Director March 20, 1998
Otto N. Frenzel III
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
BERNADINE P. HEALY, M.D. Director
Bernadine P. Healy, M.D.
/s/ JOSEPH H. LEMIEUX* Director March 20, 1998
Joseph H. Lemieux
/s/ W. BRUCE LUNSFORD* Director March 20, 1998
W. Bruce Lunsford
/s/ ROBERT A. PAUL* Director March 20, 1998
Robert A. Paul
/s/ WILLIAM R. ROBERTSON* Director March 20, 1998
William R. Robertson
/s/ WILLIAM F. ROEMER* Director March 20, 1998
William F. Roemer
/s/ MICHAEL A. SCHULER* Director March 20, 1998
Michael A. Schuler
/s/ STEPHEN A. STITLE* Director March 20, 1998
Stephen A. Stitle
/s/ MORRY WEISS* Director March 20, 1998
Morry Weiss
</TABLE>
*Carlton E. Langer, the undersigned attorney-in-fact, by signing his name
below, does hereby sign this Post-Effective Amendment No. 1 (on Form S-8) to
Form S-4 Registration Statement on behalf of each of the above-indicated
officers and directors of National City Corporation (constituting a majority of
the directors) pursuant to a power of attorney executed by such persons and
previously filed with the Securities and Exchange Commission.
By /s/ CARLTON E. LANGER
Carlton E. Langer
Attorney-in-fact March 20, 1998
March 20, 1998
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EXHIBIT 4.4
FORT WAYNE NATIONAL CORPORATION
1985 STOCK INCENTIVE PLAN
(1991 Edition)
Section 1
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General
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1.1 EFFECTIVE DATE AND PURPOSE. Fort Wayne National Corporation, an Indiana
corporation, ("FWNC") has established the FORT WAYNE NATIONAL
CORPORATION 1985 STOCK INCENTIVE PLAN (the "Plan") effective as of
January 15, 1985, (the "Effective Date"), subject to approval of the
Plan at the 1985 Annual Meeting of FWNC shareholders by the holders of
a majority of the shares of FWNC stock entitled to vote at that
meeting. The purpose of the Plan is to promote the long-term financial
performance of FWNC by (a) attracting and retaining executive and other
key employees of FWNC and its Subsidiaries (as defined in subsection
2.1) who possess outstanding abilities with incentive compensation
opportunities which are competitive with those of other major banking
corporations; (b) motivating such employees to further the long-range
goals of FWNC; and (c) furthering the identity of interests of
participating employees and FWNC shareholders through opportunities for
increased employee ownership of FWNC common stock.
1.2 PLAN ADMINISTRATION. The Plan shall be administered by the Committee
(as described below). In addition to those rights, duties and powers
vested in the Committee by other provisions of the Plan, the Committee
shall have sole authority to:
(a) interpret the provisions of the Plan;
(b) adopt, amend and rescind rules and regulations for the
administration of the Plan;
(c) impose such limitations, restrictions and conditions upon
grants and awards under the Plan as it shall deem appropriate;
and
(d) make all other determinations deemed by it to be necessary or
advisable for the administration of the Plan;
Exhibit 4A
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provided that the Committee shall exercise its authority in accordance
with the provisions of the Plan. The Committee may not exercise its
authority at any time that it has fewer than three members. The
Committee shall exercise its authority only by a majority vote of its
members at a meeting or by a writing without a meeting.
At any date, the members of the Committee shall be those members
of the Salary Review Committee of the Board of Directors of FWNC who
are Disinterested Persons, that is those members not eligible and who
have not been eligible within one year preceding that date to
participate in the Plan or any other plan of FWNC or a Subsidiary under
which stock options or stock appreciation rights of FWNC or a
Subsidiary are granted. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove
members, and appoint new members in substitution, but in all events
such new members shall be Disinterested Persons.
1.3 SHARES AVAILABLE. The sum of the number of shares of FWNC common stock
for which Incentive Stock Options ("ISOs') and Non-Qualified Stock
Options ("NQSOs") (both as defined in subsection 3.1) may be granted
may not exceed 500,000. If all or a portion of an ISO or NQSO expires
or is terminated without having been exercised in full and without
having been surrendered to exercise any related Stock Appreciation
Right ("SAR") (as defined in subsection 4.1) then the number of shares
which are forfeited or not purchased shall again be available for
purposes of making grants under this Plan. The shares of FWNC common
stock delivered pursuant to the Plan shall be authorized but unissued
shares or reacquired shares held by FWNC as treasury shares (including
shares purchased in the open market). In the event of a merger,
consolidation, reorganization, recapitalization, stock dividend, stock
split or other similar change in the corporate structure or
capitalization of FWNC which affects the FWNC common stock, appropriate
adjustment, as determined by the Board of Directors of FWNC (or its
successor), shall be made with respect to the number and kinds of
shares (or other securities) which may thereafter be awarded or by
subject to options under the Plan. Agreements evidencing grants and
awards under the Plan shall be subject to and shall provide for
appropriate adjustments, as determined by the Board of Directors of
FWNC (or its successor) in the event of such changes in the corporate
structure or capitalization of FWNC occurring after the date of grant
or award. (This Section amended effective April 24, 1989, upon approval
by shareholders of FWNC)
1.4 TERM, AMENDMENT AND TERMINATION OF PLAN. Grants and awards may not be
made under the Plan after the earlier of January
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14, 1995 or the termination date of the Plan. The Board of Directors of
FWNC may amend or terminate the Plan at any time except that, without
the approval of the holders of a majority of FWNC stock entitled to
vote at a duly held meeting of such shareholders, the Board may not:
(a) increase the number of shares of common stock which may be
issued under the Plan, except as provided in subsection 1.3;
(b) reduce the minimum option price under any stock option, except
as provided in subsection 1.3;
(c) increase the maximum period during which Incentive Stock
Options, Non-Qualified Stock Options and Stock Appreciation
Rights may be exercised;
(d) extend the term of the Plan; and
(e) amend the standards for participation described in Section 2.
In addition, the Committee may amend or modify any outstanding
option in any manner to the extent that the Committee would have had
the authority to initially grant such options as so modified or
amended, including without limitation, to change the date or dates as
of which an option becomes exercisable. Provided, no modification shall
be permitted where such modification would be considered as the
granting of a new option.
Amendment or termination of the Plan shall not affect the
validity of terms of any grant or award previously made to a
Participant in any way which is adverse to the Participant without the
consent of the Participant.
1.5 COMPLIANCE WITH APPLICABLE LAW. The Committee may postpone any exercise
of an ISO, NQSO or SAR for such time as the Committee in its discretion
may deem necessary in order to permit FWNC (a) to effect or maintain
registration of the Plan or common stock issuable pursuant to the Plan
under the Securities Act of 1933, as amended, or the securities laws of
any applicable jurisdiction; (b) to take any action necessary to comply
with restrictions or regulations incident to the maintenance of a
public market for FWNC common stock; or (c) to determine that no action
referred to in (a) or (b) above needs to be taken. FWNC shall not be
obligated to issue shares upon exercise of an ISO, NQSO or SAR in
violation of any law or regulation. Any such postponement shall not
extend the term of an ISO, NQSO or SAR. Neither FWNC nor its directors
or officers shall have any obligation or liability to any Participant
(or successor
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in interest) because of the loss of rights under any grant or award
under the Plan due to postponements pursuant to this subsection.
l.6 WITHHOLDING TAXES. FWNC and its Subsidiaries shall have the right to
deduct from any cash payment made pursuant to the Plan the amount of
any tax required by law to be withheld from that payment. FWNC and its
Subsidiaries shall have the right to require payment, in cash or
in equivalent value in FWNC common stock, to them from any person
entitled to receive FWNC common stock pursuant to the Plan of the
amount of any tax required by law to be withheld with respect to that
stock prior to its delivery. (This Section amended effective February
21, 1989).
Section 2
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Plan Participation
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2.1 PARTICIPATION DESIGNATIONS. The Committee may, at any time, designate
any officer or key employee of FWNC or of a Subsidiary to be a
Participant. For purposes of the Plan, the term "Subsidiary" means any
corporation of which, at any date, FWNC owns directly, or indirectly
through an unbroken chain of subsidiary corporations, stock possession
50 percent or more of the total combined voting power of all classes of
stock of that corporation. The term Subsidiary shall specifically
include Fort Wayne National Bank, a national banking association.
2.2 PARTICIPATION IS NOT A CONTRACT OF EMPLOYMENT. The Plan does not
constitute a contract of employment. Participating in the Plan does not
give any employee the right to be retained in the employ of FWNC or a
Subsidiary and does not limit in any way the right of FWNC or a
Subsidiary to change the duties or responsibilities of any employee.
Section 3
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Stock Options
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3.1 GRANTEES. The Committee may, at any time, designate a Participant to
receive an Incentive Stock Option or Non-Qualified Stock option (each
as defined below) whether or not the Participant has previously
received a grant under the Plan. For purposes of the Plan, the term
"Incentive Stock Option" means an option to purchase FWNC common stock
which meets the requirements of section 422A(b) of the Internal Revenue
Code of 1954, as amended (the "Code") and the term "Non-Qualified Stock
Option" means an option to
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purchase FWNC common stock which is not an Incentive Stock Option. Each
ISO and NQSO granted under the Plan shall be evidenced by an agreement
between the Participant and FWNC. The provisions of each agreement
shall be determined by the Committee in accordance with the provisions
of the Plan. A Participant shall not have any rights of a shareholder
of FWNC common stock with respect to shares subject to an ISO or NQSO
until such shares are purchased on exercise of the option.
3.2 NUMBER OF SHARES 0PTIONED AND OPTION PRICE. The Committee shall,
subject to the limitations of subsection 1.3 and this Section 3,
determine the number of shares of FWNC common stock which may be
purchased and the option price of each share on exercise of each ISO
and NQSO granted under the Plan. To the extent that the aggregate Fair
Market Value of stock with respect to which ISOs are exercisable for
the first time by any Participant during any calendar year exceeds
$100,000, such options shall be treated as NQSOs. The foregoing
limitation shall be applied by taking options into account in the order
in which they were granted. Provided, in the event and the extent
limits on the maximum number of shares for which ISOs may be granted
under Section 422A(b) shall be increased, the maximum number of shares
or amount for which ISOs may be granted under this Plan and other plans
shall be similarly increased. The option price of each share under an
ISO or NQSO shall not be less than 100 percent of the Fair Market Value
of a share of FWNC common stock on the date the option is granted. For
purposes of the Plan, the term "Fair Market Value" means the mean of
the bid and ask price of a share of stock in the Company, as quoted in
the over-the-counter market at the date of grant, or, in the event the
stock was not traded on such date, on the first date that the stock was
so traded which next precedes the date as of which the determination is
being made. (This Section amended effective with respect to options
granted after December 31, 1986)
3.3 EXERCISE OF OPTIONS AND PAYMENTS. Each ISO and NQSO shall become
exercisable in full at such time, or in such portions at such times, as
the Committee determines, subject to the following provisions of this
subsection 3.3. No ISO or NQSO granted to a Participant shall be
exercisable prior to the first anniversary of the date that the Option
was granted except, in the discretion of the Committee, if the
Participant's employment with FWNC and all of its Subsidiaries
terminates by reason of death, Disability (as defined in
section 37(c)(3) of the Code) or retirement (as described in subsection
3.4(d)). No ISO granted to a Participant prior to January 1, 1987 shall
be exercisable until all Incentive Stock Options previously granted to
that Participant by FWNC or a Subsidiary have been exercised in
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full or terminated by reason of lapse of time. During any period that
an ISO or NQSO is exercisable, it may be exercised by delivering a
written notice to FWNC at its principal office by registered or
certified mail stating the number of shares with respect to which the
Option is being exercised and specifying a date not less than five nor
more than 15 days after the receipt of such notice on which the shares
will be taken up and payment made therefore. Payment may be made in (a)
cash, or (b) in the event the Committee shall so authorize such an
exchange, in shares of FWNC common stock with an aggregate Fair Market
Value as of the close of trading on the trading day immediately
preceding the date of exercise equal to the purchase price, or in any
combination of cash and, if authorized by the Committee, such shares.
(This Section amended effective with respect to options granted after
December 31, 1986) (This Section also amended relevant to
determination of Fair Market Value effective June 18, 1991)
3.4 TERMINATION OF OPTIONS. Each ISO and NQSO shall terminate and not be
exercisable after the date determined by the Committee which date shall
not be later than the earliest of (a) the tenth anniversary of the date
that the option was granted; (b) the date the Participant's employment
with FWNC and all Subsidiaries terminates for reasons other than
described in (c) or (d) next following; (c) the first anniversary of
the date the Participant's employment with FWNC and all Subsidiaries
terminates on account of death or Disability; or (d) the first
anniversary of the Participant's retirement, as approved by the
Committee, from employment by FWNC or a Subsidiary. Exercise of an
option pursuant to Section 3.4(d) more than three (3) months after
termination of employment shall not qualify for ISO tax treatment in
the hands of the Participant.
3.5 TRANSFERABILITY. Each ISO and NQSO granted to a Participant may not be
transferred by the Participant except by will or the laws of descent
and distribution, and may be exercisable during the Participant's
lifetime only by the Participant.
3.6 CHANGE IN CONTROL. Notwithstanding any to the contrary contained
herein, any stock option granted pursuant to the Plan shall, in the
case of a change in control ("Change in Control"), as hereinafter
defined, become fully exercisable as to all shares of stock from and
after the date of such Change in Control and shall, subject to the
provisions of Section 3.4(a), above, remain exercisable for a period of
three (3) months following the employee's termination of employment
with the FWNC of its Subsidiary, Fort Wayne National Bank, if said
termination occurs within six (6) months after the date of the Change
in Control.
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The term "Change in Control" shall mean a change in Control of a nature
such that (1) it would be required to be reported by a period or entity
subject to the reporting requirements of Section 14(a) of the
Securities Exchange Act of 1934 in response to item 5(f) of Schedule
14A of Regulation 14A, or successor provisions thereto, as in effect on
the date hereof, (2) a "person" or "group" (as those terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934), is or
becomes the "beneficial owner" (as defined in Rule 13(d)-3 issued under
the Securities Exchange Act), directly or indirectly, of securities of
FWNC or its Subsidiary, Fort Wayne National Bank, representing in
excess of thirty percent (30%) of the voting securities of FWNC or its
Subsidiary, Fort Wayne National Bank, then outstanding, followed by the
election by said person or group of one or more representatives to the
Board of Directors of FWNC or its Subsidiary, Fort Wayne National Bank;
(3) a person or group, as hereinabove defined, is or becomes the
beneficial owner, directly or indirectly, of securities of FWNC or its
Subsidiary, Fort Wayne National Bank, representing in excess of fifty
percent (50%) of the voting securities of FWNC or its Subsidiary, Fort
Wayne National Bank, then outstanding, whether or not followed by the
election by said person or group of one or more representatives to the
Board of Directors of FWNC or its Subsidiary, Fort Wayne National Bank;
or (4) any other event, including but not limited to those set forth in
paragraphs (1) through (3) above, which shall have the effect of
placing control of the business and affairs of FWNC or its Subsidiary,
Fort Wayne National Bank, in a person or group as hereinabove defined,
other than or different from the present stockholders of FWNC or its
Subsidiary, Fort Wayne National Bank. Provided, no Change in Control
shall be deemed to have occurred for purposes of this Plan if a
majority of the members of the Board of Directors of Fort Wayne
national corporation approves the events which would otherwise
constitute a change of control within thirty (30) days thereof.
Section 4
---------
Stock Appreciation Rights
-------------------------
4.1 GRANTEES. The Committee may, at the time a stock option is granted
under Section 3 to a Participant or at any time thereafter, designate
that Participant to be granted, in conjunction with that stock option,
a Stock Appreciation Right (as defined below). No Stock Appreciation
Right may be granted in conjunction with a previously granted ISO
without the written consent of the affected Participant.
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<PAGE> 8
For purpose of the Plan, the term "Stock Appreciation Right" means a
right to surrender all or a portion of a stock option and receive, in
exchange, payment of an amount no greater than the excess
of the Fair Market Value (as defined in subsection 3.2) of one or more
shares of FWNC common stock determined on the date the right is
exercised over the Fair Market Value of the same number of shares of
FWNC common stock determined on the date the related stock option was
granted. Each SAR granted under the Plan shall be evidenced by
an agreement between the Participant and FWNC. The provisions of each
agreement shall be determined by the Committee in accordance with the
provisions of the Plan.
4.2 TERMS OF SARs. The Committee shall determine the number of shares of
FWNC common stock and the percentage (not more than 100 percent) or
maximum amount of the increase in Fair Market Value of those shares
over the relevant period upon which payment of each SAR at exercise
shall be based. Each SAR may be exercisable at any date with respect to
no more than the number of shares for which the related stock option is
exercisable on that date. Each SAR issued in conjunction with an ISO
may be exercisable only when there has been an increase in Fair Market
Value of the shares over the relevant period. If a Participant to whom
an SAR has been granted is subject to Section 16 of the Securities
Exchange Act of 1934, as amended, the Committee may, at any time,
impose such conditions and limitations to such SAR as the Committee
deems necessary or desirable for the Participant to comply with or
obtain an exemption from such section 16 and applicable rules and
regulations. The terms of an SAR may include such other conditions and
limitations on exercise as the Committee deems desirable.
4.3 EXERCISE OF SARs AND PAYMENT. During any period that SAR is
exercisable, it may be exercised by delivering a written notice to FWNC
at its principal office by registered or certified mail which specifies
the extent to which the SAR is being exercised. Payment to the
Participant shall be made as soon as practicable after exercise of the
SAR and may be made in cash, in shares of FWNC common stock with an
aggregate Fair Market Value on the date of exercise equal to the amount
to be paid, or in any combination of cash and such shares as determined
by the Committee. Upon exercise of an SAR, the right to exercise the
related stock option shall automatically be terminated to the same
extent that the SAR was exercised.
4.4 TERMINATION OF SARs. Each SAR shall terminate and not be exercisable
after the same date that the related stock option terminates.
16
i
<PAGE> 9
4.5 TRANSFERABILITY. Each SAR granted to a Participant may not be
transferred by the Participant except together with the related stock
option and except by will or the laws of descent and distribution, and
may be exercisable during the Participant's lifetime only by the
Participant.
17
<PAGE> 1
EXHIBIT 4.5
FORT WAYNE NATIONAL CORPORATION
1994 STOCK INCENTIVE PLAN
(1997 EDITION)
SECTION 1
GENERAL
1.1 Effective Date and Purpose. Fort Wayne National Corporation, an Indiana
corporation ("FWNC"), has established the FORT WAYNE NATIONAL
CORPORATION 1994 STOCK INCENTIVE PLAN (the "Plan") effective as of
January 18, 1994 (the "Effective Date"), subject to approval of the Plan
at the 1994 Annual Meeting of FWNC shareholders by the holders of a
majority of the shares of FWNC stock entitled to vote at that meeting.
The purpose of the Plan is to promote the long-term financial
performance of FWNC by (a) attracting and retaining executive and other
key employees of FWNC and its Subsidiaries (as defined in subsection
2.1) who possess outstanding abilities with incentive compensation
opportunities which are competitive with those of other major banking
corporations; (b) motivating such employees to further the long-range
goals of FWNC; and (c) furthering the identity of interests of
participating employees and FWNC shareholders through opportunities for
increased employee ownership of FWNC common stock.
1.2 Plan Administration. The Plan shall be administered by the Committee (as
described below). In addition to those rights, duties and powers vested
in the Committee by other provisions of the Plan, the Committee shall
have sole authority to:
(a) interpret the provisions of the Plan;
(b) adopt, amend and rescind rules and regulations for the
administration of the Plan;
(c) impose such limitations, restrictions and conditions upon grants and
awards under the Plan as it shall deem appropriate; and
(d) make all other determinations deemed by it to be necessary or
advisable for the administration of the Plan;
provided that the Committee shall exercise its authority in accordance
with the provisions of the Plan. The Committee may not exercise its
authority at any time that it has fewer than two members. The Committee
shall exercise its authority only by a majority vote of its
members at a meeting or by a writing without a meeting.
At any date, the members of the Committee shall be those
members of the Compensation Committee of the Board of Directors of FWNC
who are Disinterested Persons, that is those members not eligible, and
who have not been eligible within one year preceding service on the
Committee, to participate in the Plan or any other plan of FWNC or a
Subsidiary under which stock options or stock appreciation rights of
FWNC or a Subsidiary are granted. From time to time the Board may
increase the size of the Committee and appoint additional members
thereof, remove members, and appoint new members in substitution, but in
all events such new members shall be Disinterested Persons.
Participation in the Fort Wayne National Corporation 1994 Nonemployee
Director Stock Incentive Plan, which is a formula plan under Rule 16b-3
(c)(2) under the Securities Exchange Act of 1934, shall not disqualify a
director from being a Disinterested Person for purposes of administering
this Plan.
1.3 Shares Available. The sum of the number of shares of FWNC common stock
for which Incentive Stock Options ("ISOs") and Non-Qualified Stock
Options ("NQSOs") (both as defined in subsection 3.1) may be granted
may not exceed 1,350,000. If all or a portion of an ISO or NQSO expires
or is terminated without having been exercised in full and without
having been surrendered to exercise any related Stock Appreciation Right
("SAR") (as defined in subsection 4.1) then the number of shares which
are forfeited or not purchased shall again be available for purposes of
making grants under this Plan. The shares of FWNC common stock delivered
20
<PAGE> 2
pursuant to the Plan shall be authorized but unissued shares or
reacquired shares held by FWNC as treasury shares (including shares
purchased in the open market). In the event of a merger, consolidation,
reorganization, recapitalization, stock dividend, stock split or other
similar change in the corporate structure or capitalization of FWNC
which affects the FWNC common stock, appropriate adjustment, as
determined by the Board of Directors of FWNC (or its successor), shall
be made with respect to the number and kinds of shares (or other
securities) which may thereafter be awarded or by subject to options
under the Plan. The number of shares for which options may be granted
under this Plan has been established contemporaneously with action taken
by FWNC to declare a three-for-two stock split effective in April, 1994.
Accordingly, no further adjustment to either the number of shares for
which options may be granted under this Plan, or options granted under
this plan, if any, shall be made on account of the April, 1994,
three-for-two stock split. Agreements evidencing grants and awards under
the Plan shall be subject to and shall provide for appropriate
adjustments, as determined by the Board of Directors of FWNC (or its
successor) in the event of such changes in the corporate structure or
capitalization of FWNC occurring after the date of grant or award.
This Section amended effective April 22, 1997, upon approval by
shareholders of FWNC.)
1.4 Term, Amendment and Termination of Plan. Grants and awards may not be
made under the Plan after the earlier of January 17, 2004, or the
termination date of the Plan. The Board of Directors of FWNC may amend
or terminate the Plan at any time except that, without the approval of
the holders of a majority of FWNC stock entitled to vote at a duly held
meeting of such shareholders, the Board may not:
(a) increase the number of shares of common stock which may be issued
under the Plan, except as provided in subsection 1.3;
(b) reduce the minimum option price under any stock option, except as
provided in subsection 1.3;
(c) increase the maximum period during which Incentive Stock Options,
Non-Qualified Stock Options and Stock Appreciation Rights may be
exercised;
(d) extend the term of the Plan; or
(e) amend the standards for participation described in Section 2.
In addition, the committee may amend or modify any outstanding
option in any manner to the extent that the Committee would have had the
authority to initially grant such options as so modified or amended,
including without limitation, to change the date or dates as of which an
option becomes exercisable. Provided, no modification shall be permitted
where such modification would be considered as the granting of a new
option.
Amendment or termination of the Plan shall not affect the
validity of terms of any grant or award previously made to a Participant
in any way which is adverse to the Participant without the consent of
the Participant.
1.5 Compliance with Applicable Law. The Committee may postpone any exercise
of an ISO, NQSO or SAR for such time as the Committee in its discretion
may deem necessary in order to permit FWNC (a) to affect or maintain
registration of the Plan or common stock issuable pursuant to the Plan
under the Securities Act of 1933, as amended, or the securities laws of
any applicable jurisdiction; (b) to take any action necessary to comply
with restrictions or regulations incident to the maintenance of a public
market for FWNC common stock; or (c) to determine that no action
referred to in (a) or (b) above needs to be taken. FWNC shall not be
obligated to issue shares upon exercise of an ISO, NQSO or SAR in
violation of any law or regulation. Any such postponement shall not
extend the term of an ISO, NQSO or SAR. Neither FWNC nor its directors
or officers shall have any obligation or liability to any Participant
(or successor in interest) because of the loss of rights under any grant
or award under the Plan due to postponements pursuant to this
subsection.
1.6 Withholding Taxes. FWNC and its Subsidiaries shall have the right to
deduct from any cash payment made pursuant to the Plan the amount of any
tax required by law to be withheld from
21
<PAGE> 3
that payment. FWNC and its Subsidiaries shall have the right to require
payment, in cash or in equivalent value in FWNC common stock, to them
from any person entitled to receive FWNC common stock pursuant to the
Plan of the amount of any tax required by law to be withheld with
respect to that stock prior to its delivery.
SECTION 2
PLAN PARTICIPATION
2.1 Participation Designations. The Committee may, at any time, designate any
officer or key employee of FWNC or of a Subsidiary to be a Participant.
For purposes of the Plan, the term "Subsidiary" means any corporation of
which, at any date, FWNC owns directly, or indirectly through an
unbroken chain of subsidiary corporations, stock possessing 50 percent
or more of the total combined voting power of all classes of stock of
that corporation.
2.2 Participation is Not a Contract of Employment. The Plan does not
constitute a contract of employment. Participating in the Plan does not
give any employee the right to be retained in the employ of FWNC or a
Subsidiary and does not limit in any way the right of FWNC or a
Subsidiary to change the duties or responsibilities of any employee.
SECTION 3
STOCK OPTIONS
3.1 Grantees. The Committee may, at any time, designate a Participant to
receive an Incentive Stock Option or Non-Qualified Stock Option (each as
defined below) whether or not the Participant has previously received a
grant under the Plan. For purposes of the Plan, the term "Incentive
Stock Option" means an option to purchase FWNC common stock which meets
the requirements of Section 422 of the Internal Revenue Code of 1954, as
amended (the "Code") and the term "Non-Qualified Stock Option" means an
option to purchase FWNC common stock which is not an Incentive Stock
Option. Each ISO and NQSO granted under the Plan shall be evidenced by
an agreement between the Participant and FWNC. The provisions of each
agreement shall be determined by the Committee in accordance with the
provisions of the Plan. A Participant shall not have any rights of a
shareholder of FWNC common stock with respect to shares subject to an
ISO or NQSO until such shares are purchased upon exercise of the option.
3.2 Number of Shares Optioned and Option Price. The Committee shall, subject
to the limitations of subsection 1.3 and this Section 3, determine the
number of shares of FWNC common stock which may be purchased and the
option price of each share on exercise of each ISO and NQSO granted
under the Plan. To the extent that the aggregate Fair Market Value of
stock with respect to which ISOs are exercisable for the first time by
any Participant during any calendar year exceeds $100,000, such option
shall be treated as NQSOs. The foregoing limitation shall be applied by
taking options into account in the order in which they were granted.
Provided, in the event and to the extent limits on the maximum number of
shares for which ISOs may be granted under Section 422(b) shall be
increased, the maximum number of shares or amount for which ISOs may be
granted under this Plan and other plans shall be similarly increased.
The option price of each share under an ISO or NQSO shall not be less
than 100 percent of the Fair Market Value of a share of FWNC common
stock on the date the option is granted. For purposes of the Plan, the
term "Fair Market Value" means the unweighted mean of the bid and ask
price of a share of FWNC stock, as quoted in the over-the-counter market
at the date of grant, or, in the event the stock was not traded on such
date, on the first date that the stock was so traded which next precedes
the date as of which the determination is being made.
3.3 Exercise of Options and Payments. Each ISO and NQSO shall become
exercisable in full at such time, or in such portions at such times, as
the Committee determines, subject to the following provisions of this
subsection 3.3. No ISO or NQSO granted to a Participant shall be
exercisable prior to the first anniversary of the date that the Option
was granted except, in the discretion
22
<PAGE> 4
of the Committee, if the Participant's employment with FWNC and all of
its Subsidiaries terminates by reason of death, Disability (as defined
in Section 37(c)(3) of the Code) or retirement (as described in
subsection 3.4(d)). During any period that an ISO or NQSO is
exercisable, it may be exercised by delivering a written notice to FWNC
at its principal office by registered or certified mail stating the
number of shares with respect to which the Option is being exercised and
specifying a date not less than five nor more than 15 days after the
receipt of such notice on which the shares will be taken up and payment
made therefore. Payment may be made in (a) cash, or (b) in the event the
Committee shall so authorize such an exchange, in shares of FWNC common
stock with an aggregate Fair Market Value as of the close of trading on
the trading day immediately preceding the date of exercise equal to the
purchase price, or in any combination of cash and, if authorized by the
Committee, such shares.
3.4 Termination of Options. Each ISO and NQSO shall terminate and not be
exercisable after the date determined by the Committee but in no event
later than the earliest of (a) the tenth anniversary of the date that
the option was granted; (b) the date the Participant's employment with
FWNC and all Subsidiaries terminates for reasons other than described in
(c) or (d) next following; (c) the first anniversary of the date the
Participant's employment with FWNC and all Subsidiaries terminates on
account of death or Disability; or (d) the fifth anniversary of the
Participant's retirement, as approved by the Committee, from employment
by FWNC or a Subsidiary. Exercise of an option pursuant to Section
3.4(d) more than three (3) months after termination of employment shall
not qualify for ISO tax treatment in the hands of the Participant.
(This Section amended effective with respect to options granted after
November 15, 1994.)
3.5 Transferability Each ISO and NQSO granted to a Participant may not be
transferred by the Participant except by will or the laws of descent and
distribution, and may be exercisable during the Participant's lifetime
only by the Participant.
3.6 Change in Control. Notwithstanding any to the contrary contained herein,
any stock option granted pursuant to the Plan shall, in the case of a
change in control ("Change in Control"), as hereinafter defined, become
fully exercisable as to all shares of stock, irrespective of any
restrictions on vesting or staged exercisability of such options, from
and after the date of such Change in Control and shall, subject to the
expiration provisions of Section 3.4(a), above, remain exercisable for a
period of three (3) months following the employee's termination of
employment with the FWNC or its Subsidiary, if said termination occurs
within one (1) year after the date of the Change in Control.
The term "Change in Control" shall mean a Change in Control of
a nature such that (1) it would be required to be reported by a person
or entity subject to the reporting requirements of Section 14(a) of the
Securities Exchange Act of 1934 in response to Schedule 14A of
Regulation 14A, or successor provisions thereto, as in effect on the
date hereof, (2) a "person" or "group" (as those terms are used in
Section 13(d) and 14(d) of the Securities Exchange Act of 1934), is or
becomes the "beneficial owner" (as defined in Rule 13(d)-3 issued under
the Securities Exchange Act), directly or indirectly, of securities of
FWNC or its Subsidiary, Fort Wayne National Bank, representing in excess
of thirty percent (30%) of the voting securities of FWNC or its
Subsidiary, Fort Wayne National Bank, then outstanding, followed by the
election by said person or group of one or more representatives to the
Board of Directors of FWNC or its Subsidiary, Fort Wayne National Bank,
(3) a person or group, as hereinabove defined, is or becomes the
beneficial owner, directly or indirectly, of securities of FWNC or its
Subsidiary, Fort Wayne National Bank, representing in excess of fifty
percent (50%) of the voting securities of FWNC or its Subsidiary, Fort
Wayne National Bank, then outstanding, whether or not followed by the
election by said person or group of one or more representatives to the
Board of Directors of FWNC or its Subsidiary, Fort Wayne National Bank,
or (4) any other event, including but not limited to those set forth in
paragraphs (1) through (3) above, which shall have the effect of placing
control of the business and affairs of FWNC or its Subsidiary, Fort
Wayne National Bank, in a person or group as hereinabove defined, other
than or different from the present stockholders of FWNC or its
Subsidiary, Fort Wayne National Bank.
23
<PAGE> 5
SECTION 4
STOCK APPRECIATION RIGHTS
4.1 Grantees. The Committee may, at the time a stock option is granted
under Section 3 to a Participant or at any time thereafter, designate
that Participant to be granted, in conjunction iwth that stock option, a
Stock Appreciation Right (as defined below). No Stock Appreciation Right
may be granted in conjunction with a previously granted ISO without the
written consent of the affected Participant. For purpose of the Plan,
the term "Stock Appreciation Right" means a right to surrender all or a
portion of a stock option and receive, in exchange, payment of an amount
no greater than the excess of the Fair Market Value (as defined in
subsection 3.2) of one or more shares of FWNC common stock determined on
the date the right is exercised over the Fair Market Value of the same
number of shares of FWNC common stock determined on the date the related
stock option was granted. Each SAR granted under the Plan shall be
evidenced by an agreement between the Participant and FWNC. The
provisions of each agreement shall be determined by the Committee in
accordance with the provisions of the Plan.
4.2 Terms of SARs. The Committee shall determine the number of shares of
FWNC common stock and the percentage (not more than 100 percent) or
maximum amount of the increase in Fair Market Value of those shares over
the relevant period upon which payment of each SAR at exercise shall be
based. Each SAR may be exercisable at any date with respect to no more
than the number of shares for which the related stock option is
exercisable on that date. Each SAR issued in conjunction with an ISO may
be exercisable only when there has been an increase in Fair Market
Value of the shares over the relevant period. If a Participant to whom
an SAR has been granted is subject to Section 16 of the Securities
Exchange Act of 1934, as amended, the Committee may, at any time, impose
such conditions and limitations upon such SAR as the Committee deems
necessary or desirable for the Participant to comply with or obtain an
exemption from such Section 16 and applicable rules and regulations.
The terms of an SAR may include such other conditions and limitations on
exercise as the Committee deems desirable.
4.3 Exercise of SARs and Payment. During any period that an SAR is
exercisable, it may be exercised by delivering a written notice to FWNC
at its principal office by registered or certified mail which specifies
the extent to which the SAR is being exercised. Payment to the
Participant shall be made as soon as practicable after exerise of the
SAR and may be made in cash, in shares of FWNC common stock with an
aggregate Fair Market Value on the date of exercise equal to the amount
to be paid, or in any combination of cash and such shares as determined
by the Committee. Upon exercise of an SAR, the right to exercise the
related stock option shall automatically be terminated to the same
extent that the SAR was exercised.
4.4 Termination of SARs. Each SAR shall terminate and not be exercisable
after the same date that the related stock option terminates.
4.5 Transferability. Each SAR granted to a Participant may not be transferred
by the Participant except together with the related stock option and
except by will or the laws of descent and distribution, and may be
exercisable during the Participant's lifetime only by the Participant.
<PAGE> 1
Exhibit 4.6
FORT WAYNE NATIONAL CORPORATION
1985 STOCK INCENTIVE PLAN
(1991 Edition)
Section 1
---------
General
-------
1.1 EFFECTIVE DATE AND PURPOSE. Fort Wayne National Corporation, an Indiana
Corporation, ("FWNC") has established the FORT WAYNE NATIONAL CORPORATION
1985 STOCK INCENTIVE PLAN (the "Plan") effective as of January 15, 1985,
(the "Effective Date"), subject to approval of the Plan at the 1985 Annual
Meeting of FWNC shareholders by the holders of a majority of the shares of
FWNC stock entitled to vote at that meeting. The purpose of the Plan is to
promote the long-term financial performance of FWNC by (a) attracting and
retaining executive and other key employees of FWNC and its Subsidiaries (as
defined in subsection 2.1) who possess outstanding abilities with incentive
compensation opportunities which are competitive with those of other major
banking corporations; (b) motivating such employees to further the
long-range goals of FWNC; and (c) furthering the identity of interests of
participating employees and FWNC shareholders through opportunities for
increased employee ownership of FWNC common stock.
1.2 PLAN ADMINISTRATION. The Plan shall be administered by the Committee (as
described below). In addition to those rights, duties and powers vested in
the Committee by other provisions of the Plan, the Committee shall have sole
authority to:
(a) interpret the provisions of the Plan;
(b) adopt, amend and rescind rules and regulations for the administration of
the Plan;
(c) impose such limitations, restrictions and conditions upon grants and
awards under the Plan as it shall deem appropriate; and
(d) make all other determinations deemed by it to be necessary or advisable
for the administration of the Plan;
Exhibit 4A
9
<PAGE> 2
provided that the Committee shall exercise its authority in accordance with
the provisions of the Plan. The Committee may not exercise its authority at
any time that it has fewer than three members. The Committee shall exercise
its authority only by a majority vote of its members at a meeting or by a
writing without a meeting.
At any date, the members of the Committee shall be those members of the
Salary Review Committee of the Board of Directors of FWNC who are
Disinterested Persons, that is those members not eligible and who have not
been eligible within one year preceding that date to participate in the Plan
or any other plan of FWNC or a Subsidiary under which stock options or stock
appreciation rights of FWNC or a Subsidiary are granted. From time to time
the Board may increase the size of the Committee and appoint additional
members thereof, remove members, and appoint new members in substitution,
but in all events such new members shall be Disinterested Persons.
1.3 SHARES AVAILABLE. The sum of the number of shares of FWNC common stock for
which Incentive Stock Options ("ISOs") and Non-Qualified Stock Options
("NQSOs") (both as defined in subsection 3.1) may be granted may not exceed
500,000. If all or a portion of an ISO or NQSO expires or is terminated
without having been exercised in full and without having been surrendered to
exercise any related Stock Appreciation Right ("SAR") (as defined in
subsection 4-1) then the number of shares which are forfeited or not
purchased shall again be available for purposes of making grants under this
Plan. The shares of FWNC common stock delivered pursuant to the Plan shall
be authorized but unissued shares or reacquired shares held by FWNC as
treasury shares (including shares purchased in the open market). In the
event of a merger, consolidation, reorganization, recapitalization, stock
dividend, stock split or other similar change in the corporate structure or
capitalization of FWNC which affects the FWNC common stock, appropriate
adjustment, as determined by the Board of Directors of FWNC (or its
successor), shall be made with respect to the number and kinds of shares (or
other securities) which may thereafter be awarded or be subject to options
under the Plan Agreements evidencing grants and awards under the Plan shall
be subject to and shall provide for appropriate adjustments, as determined
by the Board of Directors of FWNC (or its successor) in the event of such
changes in the corporate structure or capitalization of FWNC occurring after
the date of grant or award. (This Section amended effective April 24, 1989,
upon approval by shareholders of FWNC)
1.4 TERM, AMENDMENT AND TERMINATION OF PLAN. Grants and awards may not be made
under the Plan after the earlier of January
10
<PAGE> 3
14, 1995 or the termination date of the Plan. The Board of Directors of
FWNC may amend or terminate the Plan at any time except that, without the
approval of the holders of a majority of FWNC stock entitled to vote at a
duly held meeting of such shareholders, the Board may not:
(a) increase the number of shares of common stock which may be issued under
the Plan, except as provided in subsection 1.3;
(b) reduce the minimum option price under any stock option, except as
provided in subsection 1.3;
(c) increase the maximum period during which Incentive Stock Options,
Non-Qualified Stock Options and Stock Appreciation Rights may be
exercised;
(d) extend the term of the Plan; and
(e) amend the standards for participation described in Section 2.
In addition, the Committee may amend or modify any outstanding option in any
manner to the extent that the Committee would have had the authority to
initially grant such options as so modified or amended, including without
limitation, to change the date or dates as of which an option becomes
exercisable. Provided, no modification shall be permitted where such
modification would be considered as the granting of a new option.
Amendment or termination of the Plan shall not affect the validity of terms
of any grant or award previously made to a Participant in any way which is
adverse to the Participant without the consent of the Participant.
1.5 COMPLIANCE WITH APPLICABLE LAW. The Committee may postpone any exercise of
an ISO, NQSO or SAR for such time as the Committee in its discretion may
deem necessary in order to permit FWNC (a) to effect or maintain
registration of the Plan or common stock issuable pursuant to the Plan under
the Securities Act of 1933, as amended, or the securities laws of any
applicable jurisdiction; (b) to take any action necessary to comply with
restrictions or regulations incident to the maintenance of a public market
for FWNC common stock; or (c) to determine that no action referred to in (a)
or (b) above needs to be taken. FWNC shall not be obligated to issue shares
upon exercise of an ISO, NQSO or SAR in violation of any law or regulation.
Any such postponement shall not extend the term of an ISO, NQSO or SAR.
Neither FWNC nor its directors or officers shall have any obligation or
liability to any Participant (or successor
11
<PAGE> 4
in interest) because of the loss of rights under any grant or award under
the Plan due to postponements pursuant to this subsection.
1.6 WITHOUT TAXES. FWNC and its Subsidiaries shall have the right to deduct from
any cash payment made pursuant to the Plan the amount of any tax required by
law to be withheld from that payment. FWNC and its Subsidiaries shall have
the right to require payment in cash or in equivalent value in FWNC common
stock, to them from any person entitled to receive FWNC common stock
pursuant to the Plan of the amount of any tax required by law to be withheld
with respect to that stock prior to its delivery. (This Section amended
effective February 21, 1989).
Section 2
----------
Plan Participation
------------------
2.1 PARTICIPATION DESIGNATIONS. The Committee may, at any time, designate any
officer or key employee of FWNC or of a Subsidiary to be a Participant. For
purposes of the Plan, the term "Subsidiary" means any corporation of which,
at any date, FWNC owns directly, or indirectly through an unbroken chain of
subsidiary corporations, stock possession 50 percent or more of the total
combined voting power of all classes of stock of that corporation. The term
Subsidiary shall specifically include Fort Wayne National Bank, a national
banking association.
2.2 PARTICIPATION IS NOT A CONTRACT OF EMPLOYMENT. The Plan does not constitute
a contract of employment. Participating in the Plan does not give any
employee the right to be retained in the employ of FWNC or a Subsidiary and
does not limit in any way the right of FWNC or a Subsidiary to change the
duties or responsibilities of any employee.
Section 3
---------
Stock Options
-------------
3.1 GRANTEES. The Committee may, at any time, designate a Participant to
receive an Incentive Stock Option or Non-Qualified Stock Option (each as
defined below) whether or not the Participant has previously received a
grant under the Plan. For purposes of the Plan, the term "Incentive Stock
Option" means an option to purchase FWNC common stock which meets the
requirements of section 422A(b) of the Internal Revenue Code of 1954, as
amended (the "Code") and the term "Non-Qualified Stock Option" means an
option to
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<PAGE> 5
purchase FWNC common stock which is not an Incentive Stock Option. Each ISO
and NQSO granted under the plan shall be evidenced by an agreement between
the Participant and FWNC. The provisions of each agreement shall be
determined by the Committee in accordance with the provisions of the Plan.
A Participant shall not have any rights of a shareholder of FWNC common
stock with respect to shares subject to an ISO or NQSO until such shares are
purchased on exercise of the option.
3.2 NUMBER OF SHARES OPTIONED AND OPTION PRICE. The Committee shall, subject to
the limitations of subsection 1.3 and this Section 3, determine the number
of shares of FWNC common stock which may be purchased and the option price
of each share on exercise of each ISO and NQSO granted under the Plan. To
the extent that the aggregate Fair Market Value of stock with respect to
which ISOs are exercisable for the first time by any Participant during any
calendar year exceeds $100,000, such options shall be treated as NQSOs. The
foregoing limitation shall be applied by taking options into account in the
order in which they were granted. Provided, in the event and the extent
limits on the maximum number of shares for which ISOs may be granted under
Section 422A(b) shall be increased, the maximum number of shares or amount
for which ISOs may be granted under this Plan and other plans shall be
similarly increased. The option price of each share under an ISO or NQSO
shall not be less than 100 percent of the Fair Market Value of a share of
FWNC common stock on the date the option is granted. For purposes of the
Plan, the term "Fair Market Value" means the mean of the bid and ask price
of a share of stock in the Company, as quoted in the over-the-counter market
at the date of grant, or, in the event the stock was not traded on such
date, on the first date that the stock was so traded which next precedes the
date as of which the determination is being made. (This Section amended
effective with respect to options granted after December 31, 1986)
3.3 EXERCISE OF OPTIONS AND PAYMENTS. Each ISO and NQSO shall become exercisable
in full at such time, or in such portions at such times, as the Committee
determines, subject to the following provisions of this subsection 3.3. No
ISO or NQSO granted to a Participant shall be exercisable prior to the
first anniversary of the date that the Option was granted except, in the
discretion of the Committee, if the Participant's employment with FWNC and
all of its subsidiaries terminates by reason of death, Disability (as
defined in section 37(c)(3) of the Code) or retirement (as described in
subsection 3.4(d)). No ISO granted to a Participant prior to January 1,
1987 shall be exercisable until all Incentive Stock Options previously
granted to that Participant by FWNC or a Subsidiary have been exercised
in
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<PAGE> 6
full or terminated by reason of lapse of time. During any period that an ISO
or NQSO is exercisable, it may be exercised by delivering a written notice
to FWNC at its principal office by registered or certified mail stating the
number of shares with respect to which the Option is being exercised and
specifying a date not less than five nor more than 15 days after the receipt
of such notice on which the shares will be taken up and payment made
therefor. Payment may be made in (a) cash, or (b) in the event the Committee
shall so authorize such an exchange, in shares of FWNC common stock with an
aggregate Fair Market Value as of the close of trading on the trading day
immediately preceding the date of exercise equal to the purchase price, or
in any combination of cash and, if authorized by the Committee, such shares.
(This Section amended effective with respect to options granted after
December 31, 1986) (This Section also amended relevant to determination of
Fair Market Value effective June 18, 1991)
3.4 TERMINATION OF MOTIONS. Each ISO and NQSO shall terminate and not be
exercisable after the date determined by the Committee which date shall not
be later than the earliest of (a) the tenth anniversary of the date that the
option was granted; (b) the date the Participant's employment with FWNC and
all Subsidiaries terminates for reasons other than described in (c) or (d)
next following; (c) the first anniversary of the date the Participant's
employment with FWNC and all Subsidiaries terminates on account of death or
Disability; or (d) the first anniversary of the Participant's retirement, as
approved by the Committee, from employment by FWNC or a Subsidiary. Exercise
of an option pursuant to Section 3.4(d) more than three (3) months after
termination of employment shall not qualify for ISO tax treatment in the
hands of the Participant.
3.5 TRANSFERABILITY. Each ISO and NQSO granted to a Participant may not be
transferred by the Participant except by will or the laws of descent and
distribution, and may be exercisable during the Participant's lifetime only
by the Participant.
3.6 CHANCE IN CONTROL. Notwithstanding any to the contrary contained herein,
any stock option granted pursuant to the Plan shall, in the case of a change
in control ("Change in Control"), as hereinafter defined, become fully
exercisable as to all shares of stock from and after the date of such Change
in Control and shall, subject to the provisions of Section 3.4(a), above,
remain exercisable for a period of three (3) months following the employee's
termination of employment with the FWNC of its Subsidiary, Fort Wayne
National Bank, if said termination occurs within six (6) months after the
date of the Change in Control.
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<PAGE> 7
The term "Change in Control" shall mean a change in Control of a nature such
that (1) it would be required to be reported by a period or entity subject
to the reporting requirements of Section 14(a) Of the Securities Exchange
Act of 1934 in response to item 5(f) of Schedule 14A of Regulation 14A, or
successor provisions thereto, as in effect on the date hereof, (2) a
"person" or "group" (as those terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934), is or becomes the "beneficial owner"
(as defined in Rule 13(d)-3 issued under the Securities Exchange Act),
directly or indirectly, of securities of FWNC or its Subsidiary, Fort Wayne
National Bank, representing in excess of thirty percent (30%) of the voting
securities of FWNC or its Subsidiary, Fort Wayne National Bank, then
outstanding, followed by the election by said person or group of one or more
representatives to the Board of Directors of FWNC or its Subsidiary, Fort
Wayne National Bank; (3) a person or group, as hereinabove defined, is or
becomes the beneficial owner, directly or indirectly, of securities of FWNC
or its Subsidiary, Fort Wayne National Bank, representing in excess of fifty
percent (50%) of the voting securities of FWNC or its Subsidiary, Fort Wayne
National Bank, then outstanding, whether or not followed by the election by
said person or group of one or more representatives to the Board of
Directors of FWNC or its Subsidiary, Fort Wayne National Bank; or (4) any
other event, including but not limited to those set forth in paragraphs (1)
through (3) above, which shall have the effect of placing control of the
business and affairs of FWNC or its Subsidiary, Fort Wayne National Bank, in
a person or group as hereinabove defined, other than or different from the
present stockholders of FWNC or its Subsidiary, Fort Wayne National Bank.
Provided, no Change in Control shall be deemed to have occurred for purposes
of this Plan if a majority of the members of the Board of Directors of Fort
Wayne National Corporation approves the events which would otherwise
constitute a change of control within thirty (30) days thereof.
Section 4
---------
Stock Appreciation Rights
-------------------------
4.1 GRANTEES. The Committee may, at the time a stock option is granted under
Section 3 to a Participant or at any time thereafter, designate that
Participant to be granted, in conjunction with that stock option, a Stock
Appreciation Right (as defined below). No Stock Appreciation Right may be
granted in conjunction with a previously granted ISO without the written
consent of the affected Participant.
15
<PAGE> 8
For purpose of the Plan, the term "Stock Appreciation Right" means a right
to surrender all or a portion of a stock option and receive, in exchange,
payment of an amount no greater than the excess of the Fair Market Value (as
defined in subsection 3-2) of one or more shares of FWNC common stock
determined on the date the right is exercised over the Fair Market Value of
the same number of shares of FWNC common stock determined on the date the
related stock option was granted. Each SAR granted under the Plan shall be
evidenced by an agreement between the Participant and FWNC. The provisions
of each agreement shall be determined by the Committee in accordance with
the provisions of the Plan.
4.2 TERMS OF SARS. The Committee shall determine the number of shares of FWNC
common stock and the percentage (not more than 100 percent) or maximum
amount of the increase in Fair Market Value of those shares over the
relevant period upon which payment of each SAR at exercise shall be based.
Each SAR may be exercisable at any date with respect to no more than the
number of shares for which the related stock option is exercisable on that
date. Each SAR issued in conjunction with an ISO may be exercisable only
when there has been an increase in Fair Market Value of the shares over the
relevant period. If a Participant to whom an SAR has been granted is subject
to Section 16 of the Securities Exchange Act of 1934, as amended, the
Committee may, at any time, impose such conditions and limitations to such
SAR as the Committee deems necessary or desirable for the Participant to
comply with or obtain an exemption from such Section 16 and applicable rules
and regulations. The terms of an SAR may include such other conditions and
limitations on exercise as the Committee deems desirable.
4.3 EXERCISE OF SARS AND PAYMENT. During any period that SAR is exercisable, it
may be exercised by delivering a written notice to FWNC at its principal
office by registered or certified mail which specifies the extent to which
the SAR is being exercised. Payment to the Participant shall be made as soon
as practicable after exercise of the SAR and may be made in cash, in shares
of FWNC common stock with an aggregate Fair Market Value on the date of
exercise equal to the amount to be paid, or in any combination of cash and
such shares as determined by the Committee. Upon exercise of an SAR, the
right to exercise the related stock option shall automatically be terminated
to the same extent that the SAR was exercised.
4.4 TERMINATION OF SARS. Each SAR shall terminate and not be exercisable after
the same date that the related stock option terminates.
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<PAGE> 9
4.5 TRANSFERABILITY. Each SAR granted to a Participant may not be transferred by
the Participant except together with the related stock option and except by
will or the laws of descent and distribution, and may be exercisable during
the Participant's lifetime only by the Participant.
17
<PAGE> 1
Exhibit 5.1
March 20, 1998
National City Corporation
1900 East Ninth Street
Cleveland, OH 44114
Re: Shares of Common Stock, par value $4.00 per share, of National City
Corporation ("National City Common") to be Registered in connection
with the Post-Effective Amendment No. 1 (on Form S-8) to Form S-4
Registration Statement
Gentlemen:
The Law Department acts as counsel to National City Corporation
("National City") and we are delivering this opinion in connection with the
Merger (the "Merger") of Fort Wayne National Corporation ("FWNC") with and into
National City in accordance with the Agreement and Plan of Merger, dated as of
January 12, 1998 (the "Merger Agreement"), by and between FWNC and National
City.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, and based thereon we are of the
opinion that the National City Common which may be issued will be, when
issued, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as to the Post-Effective
Amendment No. 1 (on Form S-8) to Form S-4 Registration Statement by National
City to effect registration of the National City Common issued in connection
with various stock option plans.
Very truly yours,
/s/ Carlton E. Langer
National City Corporation
Carlton E. Langer
Vice President and Assistant
General Counsel
<PAGE> 1
Exhibit 23.1
FWNC
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus and Proxy Statement of
National City Corporation and Fort Wayne National Corporation for the proposed
merger of National City Corporation and Fort Wayne National Corporation for the
registration of approximately 12,800,000 shares and 740,000 shares of National
City Corporation's common stock and preferred stock, respectively, and to the
incorporation by reference therein of our reports dated January 21, 1998 and
January 19, 1998, with respect to the consolidated financial statements of
National City Corporation and Fort Wayne National Corporation, respectively,
included in their respective Annual Reports on Form 10-K for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
February 2, 1998
