<PAGE> 1
EXHIBIT 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL CITY CORPORATION
The present name of the Corporation is National City Corporation. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on August 17, 1972. The within Restated Cer-
tificate of Incorporation of the Corporation was duly adopted by the Board of
Directors and stockholders of the Corporation in accordance with the pro-
visions of Sections 245 and 242 of the General Corporation Law of the State of
Delaware.
FIRST. The name of the Corporation is National City Corporation.
SECOND. The address of its registered office in the State of Delaware
is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
FOURTH. The Corporation is authorized to issue a total of fifty-five
million (55,000,000) shares of all classes of stock. Of such total number of
authorized shares of stock, fifty million (50,000,000) shares are Common Stock,
par value $4.00 per share, and five million (5,000,000) shares are Preferred
Stock without par value.
Each of the shares of Common Stock, par value $8.00 per share, of the
Corporation hereto authorized and now outstanding hereby is changed and con-
verted into one share of Common Stock, par value $4.00 per share. The stated
capital of the Corporation shall be the same immediately after such change and
conversion as it was immediately prior thereto.
A statement of the designations of the authorized classes of stock or
of any series thereof, and the powers, preferences and relative, participa-
ting, optional or other special rights, and qualifications, limitations or
restrictions thereof, or of the authority of the Board of Directors to fix by
resolution or resolutions such designations and other terms, is as follows:
A. Preferred Stock:
Shares of Preferred Stock may be issued from time to time in one or
more series.
<PAGE> 2
The Board of Directors is hereby authorized, within the limitations and
restrictions stated in this Article Fourth, to fix by resolution or resolutions
the designation of each series of Preferred Stock and the powers, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, provided, however, that in no event shall any holder of any series of
Preferred Stock be entitled to more than one vote for each share of such
Preferred Stock held by him, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution or resolutions or exchange, and such other
subjects or matters as may be fixed by resolution or resolutions of the Board
of Directors under the General Corporation Law of the State of Delaware.
B. Common Stock:
Subject to all of the preferences and rights of the Preferred Stock or
a series thereof that may be fixed by a resolution or resolutions of the Board
of Directors, (i) dividends may be paid on the Common Stock as and when declared
by the Board of Directors, out of any funds of the Corporation legally available
for the payment of such dividends, and (ii) each share of Common Stock will be
entitled to one vote on all matters.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the By-laws of the Corporation.
SIXTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
IN WITNESS WHEREOF, we have hereunto set our respective hands this
7th day of May, 1984.
NATIONAL CITY CORPORATION
By /s/ Julien L. McCall
------------------------------------
Julien L. McCall
Chairman of the Board
Attest /s/ David W. Hart
------------------------------
David W. Hart, Secretary
RECEIVED FOR RECORD
JUNE 4, 1984
LEO J. DUGAN, JR., RECORDER
<PAGE> 3
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
CORRECTION OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE
EIGHTEENTH DAY OF JULY, A.D. 1984, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8779749
DATE: 11-26-97
[Seal of Secretary of State of Delaware]
0784371 8100
971405379
<PAGE> 4
CERTIFICATE OF CORRECTION
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL CITY CORPORATION
-----------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY, pursuant to Section 103(f) of the General
Corporation Law of the State of Delaware:
FIRST: That on May 21, 1984, an officer of the Corporation filed with
the Secretary of State of the State of Delaware on behalf of the Corporation a
Restated Certificate of Incorporation dated May 7, 1984, the purpose of which
was to effect an Amendment to the Restated Certificate of Incorporation of the
Corporation dated March 12, 1973, which Amendment had been duly proposed by the
Directors of the Corporation and duly adopted by the stockholders of the
Corporation pursuant to Section 242 of the General Corporation Law of the State
of Delaware.
SECOND: That the Restated Certificate of Incorporation dated May 7,
1984 and filed on May 21, 1984 is an inaccurate record of the corporate action
referred to therein to the extent that it states that it was duly adopted in
such form by the Board of Directors and stockholders of the Corporation in
accordance with provisions of Delaware law, when in fact the Board of Directors
and stockholders of the Corporation had, respectively, duly proposed and adopted
an Amendment to the Restated Certificate of Incorporation dated March 12, 1973.
The Board of Directors and stockholders of the Corporation did not adopt in such
form nor authorize the filing of the Restated Certificate of Incorporation dated
May 7, 1984. The Corporation was authorized to file a Certificate of Amendment
of the Restated Certificate of Incorporation, setting forth the Amendment and
certifying that it had been duly adopted. Attached hereto as Exhibit A is a
Certificate of Amendment of the Restated Certificate
<PAGE> 5
of Incorporation dated March 12, 1973, which is the corrected form of
the instrument that was filed on May 21, 1984.
IN WITNESS WHEREOF, William R. Robertson, Executive Vice-President of
the Corporation, and David W. Hart, Secretary of the Corporation, acting for and
on its behalf, have hereunto subscribed their names and caused the seal of the
Corporation to be affixed hereunto on July 17, 1984.
NATIONAL CITY CORPORATION
By /s/ William R. Robertson
---------------------------------
William R. Robertson,
Executive Vice-President
[Seal]
Attest /s/ David W. Hart
------------------------------
David W. Hart, Secretary
<PAGE> 6
EXHIBIT A
---------
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
---------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That a meeting of the Directors of the Corporation was duly
called and held on February 27, 1984, at which meeting of Directors a quorum was
present, and at such meeting the Directors, acting pursuant to Section 242 of
the General Corporation Law of the State of Delaware, adopted resolutions
setting forth a proposed Amendment to the first paragraph of Article Fourth of
the Restated Certificate of Incorporation of the Corporation dated March 12,
1973, declaring its advisability, and directing that such proposed Amendment be
considered at the annual meeting of stockholders to be held on April 23, 1984.
SECOND: That thereafter a meeting of the stockholders of the
Corporation was duly called and held on April 23, 1984, upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware, at which meeting of stockholders a quorum was present, and at such
meeting the stockholders, acting pursuant to Section 242 of the General
Corporation Law of the State of Delaware, duly adopted an Amendment to the first
paragraph of Article Fourth of the Restated Certificate of Incorporation dated
March 12, 1973, so that the first paragraph of Article Fourth of the Restated
Certificate of Incorporation of the Corporation dated March 12, 1973 reads in
its entirety as follows:
"FOURTH. The Corporation is authorized to issue a total of
fifty-five million (55,000,000) shares of all classes of stock. Of such
total number of authorized shares of stock, fifty million (50,000,000)
shares are Common Stock, par value $4.00 per share, and five million
(5,000,000) shares are Preferred Stock without par value."
<PAGE> 7
IN WITNESS WHEREOF, William R. Robertson, Executive Vice-President of
the Corporation, and David W. Hart, Secretary of the Corporation, acting for and
on its behalf, have hereunto subscribed their names and caused the seal of the
Corporation to be affixed hereto on May 7, 1984.
NATIONAL CITY CORPORATION
By /s/ William R. Robertson,
-----------------------------
William R. Robertson,
Executive Vice-President
[Seal]
Attest /s/ David W. Hart
---------------------------
David W. Hart, Secretary
<PAGE> 8
STATE OF DELAWARE PAGE 1
OFFICE OF THE SECRETARY OF STATE
----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE EIGHTH
DAY OF NOVEMBER, A.D. 1984, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
--------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
8779750
[SEAL of the Secretary of DATE: 11-26-97
State of Delaware]
0784371 8100
971405379
<PAGE> 9
CERTIFICATE OF DESIGNATION
RIGHTS AND PREFERENCES
OF THE
SERIES A CONVERTIBLE PREFERRED STOCK
OF
NATIONAL CITY CORPORATION
--------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation, as amended, of the Corporation, and
pursuant to the provisions of Section 151 of the General Corporation Law of the
State of Delaware, said Board of Directors, at a meeting duly held on July 23,
1984, duly adopted a resolution providing for the designation, powers,
preferences, and rights, and the qualifications, limitations and/or restrictions
thereof, of the Series A Convertible Preferred Stock of the Corporation, which
resolution is as follows:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation in accordance with the
provisions of its Restated Certificate of Incorporation, as amended, a
series of Preferred Stock of the Corporation is hereby created, such series
of Preferred Stock to be designated Series A Convertible Preferred Stock,
to consist of 2,668,928 shares, without par value, of which the powers,
preferences, and rights, and the qualifications, limitations and/or
restrictions thereof, shall be as follows:
1. DESIGNATION OF SERIES AND NUMBER OF SHARES.
The series of Preferred Stock is designated "Series A Convertible
Preferred Stock" (the "Series A Convertible Preferred Stock"), and the number of
shares which shall constitute such series shall be 2,668,928 shares, without par
value, which number may be increased or decreased (but not below the number
thereof then outstanding) from time to time by the Board of Directors.
2. DIVIDENDS.
A. The dividend rate for the Series A Convertible Preferred Stock shall
be $3.70 per share per annum, payable quarterly on the first day of February,
May, August and November in each year to holders thereof of record on the
respective record dates fixed for the purpose by the Board of Directors or the
Dividend Committee thereof in advance of payment of such dividend. Dividends
shall accrue from November 9, 1984. The holders of Series A Convertible
Preferred Stock shall be entitled to receive, and the Corporation shall be bound
to pay thereon, but only as and when declared by the Board of Directors or the
Dividend Committee thereof, out of funds legally available for the payment
thereof, said cash dividends, and no more. Such dividends shall be cumulative
and shall be deemed to accrue from day to day regardless of whether the
Corporation shall have funds legally available for the payment of such
dividends. Accumulations of dividends on any shares of Series A Convertible
Preferred Stock will not bear interest.
B. No full dividends shall be declared or paid or set apart for payment
on the preferred shares of any series ranking, as to dividends, on a parity with
or junior to the Series A Convertible Preferred Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment on
the Series A Convertible Preferred Stock for all Dividend Periods terminating
on or prior to the date of payment of such full
1
<PAGE> 10
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of the Series A Convertible Preferred Stock and any other series of
preferred shares ranking on a parity as to dividends with the Series A
Convertible Preferred Stock, all dividends declared and paid upon shares of the
Series A Convertible Preferred Stock and any other series of preferred shares
ranking on a parity as to dividends with the Series A Convertible Preferred
Stock shall be declared and paid pro rata so that the amount of dividends
declared and paid per share on the Series A Convertible Preferred Stock and such
series of other preferred shares shall in all cases bear to each other the same
ratio that accrued dividends per share on the shares of the Series A Convertible
Preferred Stock and such other series of preferred shares bear to each other.
Holders of shares of the Series A Convertible Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided, on the Series A
Convertible Preferred Stock.
C. So long as any shares of the Series A Convertible Preferred Stock
are outstanding, no dividend (other than a dividend in shares of Common Stock or
in any other stock ranking junior to the Series A Convertible Preferred Stock as
to dividends and upon liquidation and other than as provided in paragraph (B)
above) shall be declared or paid or set aside for payment or other distribution
declared or made upon shares of the Common Stock or upon any other stock ranking
junior to or on a parity with the Series A Convertible Preferred Stock as to
dividends or upon liquidation, nor shall any shares of Common Stock nor any
other stock of the Corporation ranking junior to or on a parity with the Series
A Convertible Preferred Stock as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for stock
of the Corporation ranking junior to the Series A Convertible Preferred Stock as
to dividends and upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of the Series A Convertible Preferred Stock
shall have been paid for all past quarterly dividend periods.
3. REDEMPTION.
A. Redemption by Shares of Common Stock. Subject to the conditions set
forth in this Section 3.A., the shares of the Series A Convertible Preferred
Stock shall be redeemable for shares of Common Stock on or before November 9,
1989 at any time, in whole but not in part, at the option of the Corporation by
vote of its Board of Directors. The redemption price under this Section 3.A.
(hereinafter called "the Section 3.A. redemption price") shall be .98 of a share
of Common Stock per share of Series A Convertible Preferred Stock plus, in each
case, cash in an amount equal to all unpaid dividends whether or not earned or
declared, accrued to the date fixed for redemption. The Section 3.A. redemption
price and the dollar amount set forth below shall be subject to adjustment in
accordance with the provisions of Section 5.C. The Corporation may redeem shares
of Series A Convertible Preferred Stock for shares of Common Stock only if the
ratio of the current market price per share of Common Stock, as defined in
Section 5.C.(c), on the date of mailing the notice of redemption, to $37.76, is
equal to or exceeds a fixed ratio. In the first year after issuance, the fixed
ratio shall be 140%, in the second year 130%, in the third year 120%, in the
fourth year 115%, and in the fifth year 110%.
B. Redemption for Cash. The Series A Convertible Preferred Stock shall
be redeemable by the Corporation at any time after November 9, 1989 at $37 per
share, plus accrued dividends (as defined below) to the redemption date on
shares redeemed with funds legally available for such purpose and the
Corporation, at the option of the Board of Directors, may at any time redeem the
whole, or from time to time may redeem any part, of the Series A Convertible
Preferred Stock at such time or times after the aforesaid date by paying
therefor in cash the aforesaid amount, such sum being hereinafter referred to as
the "redemption price"; provided, however, that less than all of the Series A
Convertible Preferred Stock may be redeemed only after full cumulative and
current dividends, with respect to Series A Cumulative Preferred Stock, have
either been paid or set aside for payment. If less than all of the outstanding
shares of Series A Convertible Preferred Stock are to be called for redemption,
the shares to be redeemed shall be selected by whichever of the following
methods the Board of Directors shall choose: by lot or pro rata in such manner
as may be prescribed by resolution of the Board of Directors.
2
<PAGE> 11
C. Redemption Procedure. Not more than sixty (60) days and not less
than forty (40) days prior to the redemption date, notice of the proposed
redemption shall be mailed to the holders of record of the Series A Convertible
Preferred Stock to be redeemed, such notice to be addressed to each such
stockholder at his last known post office address shown on the records of the
Corporation, and the time of mailing such notice shall be deemed to be the time
of the giving thereof. On or after the date of redemption stated in such notice
(hereinafter sometimes referred to as the "redemption date"), each holder of
Series A Convertible Preferred Stock called for redemption shall surrender his
certificate(s) for such stock to the Corporation at the place designated in such
notice and shall thereupon be entitled to receive payment of the redemption
price. In case less than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares. If such notice of redemption shall have been given as
aforesaid, and if on or before the redemption date funds necessary for the
redemption shall have been set aside so as to be and continue available
therefor, then, notwithstanding that the certificates representing any shares of
Series A Convertible Preferred Stock so called for redemption shall not have
been surrendered, the dividends thereon shall cease to accrue after the
redemption date, and all rights with respect to the shares so called for
redemption shall forthwith after such redemption date cease, except only the
right of the holders to receive the redemption price without interest. If such
notice of redemption of all or any part of the Series A Convertible Preferred
Stock shall have been mailed as aforesaid and the Corporation shall thereafter
deposit money for the payment of the redemption price pursuant thereto with any
bank or trust company (hereinafter referred to as the "depository"), including
any subsidiary of the Corporation, selected by the Board of Directors for that
purpose, to be applied to such redemption, then from and after the making of
such deposit, such shares shall not be deemed to be outstanding for any purpose,
and the rights of the holders thereof shall be limited to the rights to receive
payment of the redemption price (without interest but including accrued
dividends to the redemption date) from the depository upon endorsement, if
required, and surrender of the certificates thereof; provided, however, that no
then existing right of conversion with respect to such shares shall be impaired
by such deposit. Any moneys so deposited which shall not be required for such
redemption because of the exercise of any such right of conversion subsequent to
the date of such deposit shall be returned to the Corporation forthwith. The
Corporation shall be entitled to receive, from time to time, from the depository
the interest, if any, earned on such moneys deposited with it, and the holders
of any shares so redeemed shall have no claim to any such interest. Any moneys
so deposited and remaining unclaimed at the end of six (6) years from the
redemption date shall, if thereafter requested by resolution of the Board of
Directors, be repaid to the Corporation, and in the event of such repayment to
the Corporation, such holders of record of the shares so called for redemption
as shall not have made claim against such moneys prior to such repayment to the
Corporation shall be deemed to be unsecured creditors of the Corporation for an
amount equivalent to the amount deposited as above stated for the redemption of
such shares and so repaid to the Corporation, but shall in no event be entitled
to any interest.
4. LIQUIDATION PREFERENCE.
The amount payable on the Series A Convertible Preferred Stock in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
affairs of the Corporation shall be $37 per share, plus accrued dividends to the
date fixed for payment of distributable amounts on the Series A Convertible
Preferred Stock. Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series A Convertible Preferred
Stock shall be entitled, before any distribution shall be made to the holders of
Common Stock or of any other class of stock junior to the Series A Convertible
Preferred Stock, to be paid the full preferential amount of $37 per share, but
the holders of such Series A Convertible Preferred Stock shall not be entitled
to any further payment. If upon such voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, the net assets of the Corporation
shall be insufficient to permit the payment to the holders of all outstanding
shares of Preferred Stock of the Corporation of all series of the full
preferential amounts to which they are respectively entitled, then the entire
net assets of the Corporation shall be distributed ratably in respect of all
outstanding shares of Preferred Stock of the Corporation of all series in
proportion to the full preferential amount to which each such share is entitled.
3
<PAGE> 12
5. CONVERSION.
A. Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series A Convertible Preferred Stock shall have the right,
at their option, at any time and from time to time, to convert all or any fully
paid and nonassessable shares of the Series A Convertible Preferred Stock into
Common Stock at the rate of ninety-eight one hundredths (.98) of a share of
Common Stock for each share of Series A Convertible Preferred Stock surrendered
for conversion; provided that the right to convert any shares of Series A
Convertible Preferred Stock called for redemption shall terminate at the close
of business on the fifth day prior to the date fixed for such redemption unless
default shall be made in the payment of the redemption price, and upon any
liquidation, dissolution or winding-up of the affairs of the Corporation such
right of conversion shall terminate at the close of business on the fifth day
prior to the date fixed for payment of distributable amounts on the Series A
Convertible Preferred Stock. Upon conversion, no payment or adjustment shall be
made for dividends on the Series A Convertible Preferred Stock surrendered for
conversion or the Common Stock issued on conversion.
B. Each holder of Series A Convertible Preferred Stock desiring to
exercise his right of conversion shall deliver to the Corporation written notice
of his election to convert, and shall surrender to the Corporation the
certificates for the shares of Series A Convertible Preferred Stock to be
converted (properly endorsed or assigned for transfer if the Board of Directors
of the Corporation shall so require). Upon receipt by the Corporation of any
such notice of election to convert Series A Convertible Preferred Stock and upon
surrender of the certificates therefor, the Corporation shall, as soon as
practicable, execute and deliver to the converting holder of Series A
Convertible Preferred Stock certificates for the number of full shares of Common
Stock to which he is entitled upon conversion, together with a cash payment in
lieu of any fraction of a share as hereinafter provided. If more than one stock
certificate for Series A Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full shares of Common
Stock issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares represented by all the certificates so surrendered.
For all purposes, the rights of a converting holder of Series A Convertible
Preferred Stock as such holder shall cease, and the person or person in whose
name or names the certificates for Common Stock issuable upon such conversion
are to be issued shall be deemed to have become the record holder or holders of
such Common Stock at the close of business on the day on which delivery of such
notice or the surrender of the certificates for such shares (whichever shall
last occur) shall be made.
C. The number of shares of Common Stock into which each share of Series
A Convertible Preferred Stock is convertible shall be subject to adjustment from
time to time as follows:
(a) In case the Corporation shall (i) distribute to the
holders of its Common Stock any dividend payable in shares of Common Stock
of the Corporation, (ii) subdivide its outstanding Common Stock into a
larger number of shares, or (iii) combine outstanding Common Stock into a
smaller number of shares, the conversion rate in effect immediately prior
thereto shall be adjusted so that the holder of each share of Series A
Convertible Preferred Stock shall thereafter be entitled to receive upon
conversion of such share the number of shares of Common Stock which he
would have owned or been entitled to receive after the happening of any of
the events described above had such share of Series A Convertible Preferred
Stock been converted immediately prior to the happening of such event. Such
adjustment shall be made whenever any of the events described above shall
occur. An adjustment made pursuant to this Section 5.C(a) shall become
effective retroactively immediately after the record date in the case of a
dividend payable in shares of Common Stock and immediately after the
effective date in the case of a subdivision or combination of shares.
(b) In case the Corporation shall issue to the holders of its
Common Stock as a class any rights or warrants to subscribe for or purchase
shares of Common Stock at a price per share less than the current market
price (as hereinafter defined) of Common Stock at the record date mentioned
below, in each such case the conversion rate in effect immediately prior
thereto shall be adjusted so that the holder of each share of Series A
Convertible Preferred Stock shall thereafter be entitled to receive upon
conversion a number of shares of Common Stock determined by multiplying the
number of shares of Common Stock into which such share of Series A
Convertible Preferred Stock
4
<PAGE> 13
was theretofore convertible by a fraction of which the numerator shall
be the sum of the number of shares of Common Stock outstanding on said
record date plus the number of additional shares of Common Stock so
offered for subscription or purchase, and of which the denominator
shall be the sum of the number of shares of Common Stock outstanding on
said record date plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at the current market price per
share of the Common Stock at such record date. Such adjustment shall be
made whenever such rights or warrants are issued and shall become
effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such rights or
warrants.
(c) For the purpose of any computation under this Section 5,
the current market price per share of Common Stock at any time shall be
the average of the daily closing prices for the thirty (30) consecutive
business days commencing forty-five (45) business days before the time
in question. The closing price for each day shall be the last sale
price or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, in either case as quoted by the
National Association of Securities Dealers, Inc. National Market List
or on the principal national securities exchange, if any, on which the
Common Stock is listed or admitted to trading.
(d) No adjustment in the number of shares of Common Stock into
which any share of Series A Convertible Preferred Stock is convertible
shall be required unless such adjustment would require an increase or
decrease of at least 1/100 of a share in the number of shares of Common
Stock into which such share of Series A Convertible Preferred Stock is
then convertible; provided, however, that any adjustments which by
reason of this subclause (d) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(e) In case of any capital reorganization or any
reclassification of the capital stock of the Corporation or in case of
the consolidation or merger of the Corporation with or into another
corporation or the conveyance of all or substantially all of the assets
of the Corporation to another corporation, each share of Series A
Convertible Preferred Stock shall thereafter be convertible into the
number of shares of stock or other securities or property to which a
holder of the number of shares of Common Stock of the Corporation
deliverable upon conversion of such share of Series A Convertible
Preferred Stock would have been entitled upon such reorganization,
reclassification, consolidation, merger or conveyance; and, in any such
case, appropriate adjustment (as determined by the Board of Directors)
shall be made in the application of the provisions herein set forth
with respect to the rights and interests thereafter of the holders of
Series A Convertible Preferred Stock, to the end that the provisions
set forth herein (including provisions with respect to changes in, and
other adjustments of, the conversion rate) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares
of stock or other securities or property thereafter deliverable upon
the conversion of shares of Series A Convertible Preferred Stock.
(f) Whenever any adjustment is made in the conversion rate(s)
as herein required, the Corporation shall forthwith cause to be
mailed to the holders of record of the outstanding shares of Series A
Convertible Preferred Stock at their addresses as shown on the books of
the Corporation a statement describing in reasonable detail the
adjustment and the method of calculation used.
D. Upon any conversion, fractional shares of Common Stock shall not be
issued but any fractional share of Common Stock shall be adjusted in cash (to
the nearest 1/100 of a share) on the basis of the current market price per share
of Common Stock as defined in Section 5.C.(c) hereof on the date the shares are
surrendered for conversion unless the Board of Directors shall determine to
adjust them by the issuance of fractional scrip certificates or in some other
manner.
E. The Corporation shall at all times reserve and keep available out of
its authorized shares the full number of shares of Common Stock into which all
shares of Series A Convertible Preferred Stock from time to time outstanding are
convertible.
5
<PAGE> 14
F. The Corporation shall pay all issue taxes, if any, incurred in
respect of the issue of Common Stock on conversion, provided, however, that the
Corporation shall not be required to pay any transfer or other taxes incurred by
reason of the issuance of Common Stock in names other than those in which the
Series A Convertible Preferred Stock surrendered for conversion may stand.
In the event that:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash; or
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or purchase any
shares of stock of any class or to receive any other rights; or
(iii) any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation, consolidation
or merger of the Corporation with or into another corporation, or sale,
lease or conveyance of all or substantially all of the assets of the
Corporation to another corporation occurs; or
(iv) the voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation occurs;
then, and in any such case, the Corporation shall cause to be mailed to the
holders of record of the outstanding shares of Series A Convertible Preferred
Stock, at least twenty (20) days prior to the date hereinafter specified, a
notice stating (a) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (b) the date on which
such reorganization, reclassification, consolidation, merger, sale, lease,
conveyance, dissolution, liquidation or winding-up is to take place, and the
date, if any is to be fixed, as of which holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, dissolution, liquidation or winding-up.
6. VOTING RIGHTS.
A. The holders of Series A Convertible Preferred Stock shall, subject
to the provisions of the Restated Certificate of Incorporation and By-Laws of
the Corporation and the statutes of the State of Delaware relating to the fixing
of a record date, be entitled to one vote for each share of Series A Convertible
Preferred Stock held by them respectively, for the election of Directors and for
any other purposes, and, except as otherwise provided herein or required by law,
the holders of the Series A Convertible Preferred Stock and the holders of
Common Stock of the Corporation shall vote together as one class on all matters.
B. During any period in which dividends on the Series A Convertible
Preferred Stock are cumulatively in arrears in the amount of six or more full
quarterly dividends, the holders of the Series A Convertible Preferred Stock,
voting together as a class with the holders of any other series of Preferred
Stock who are similarly entitled to vote, will have the right to elect two
directors which two directorships shall be in addition to that number of
directors then determined as constituting the number of members of the Board of
Directors pursuant to the Restated Certificate of Incorporation of the
Corporation.
C. The approval of a majority of the outstanding shares of Series A
Convertible Preferred Stock voted together as a class with all other issued and
outstanding shares of any other series of Preferred Stock ranking on a parity
with the Series A Convertible Preferred Stock and similarly entitled to vote
shall be required in order to amend the Restated Certificate of Incorporation of
the Corporation to affect adversely the rights of the holders of the Series A
Convertible Preferred Stock or any other series of Preferred Stock ranking on a
parity with the Series A Convertible Preferred Stock and similarly entitled to
vote or to take any action that would result in the creation of or an increase
in the number of authorized shares senior or superior with respect to dividends
or upon liquidation to the Series A Convertible Preferred Stock or any other
series of Preferred Stock ranking on a parity with the Series A Convertible
Preferred Stock;
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<PAGE> 15
provided, however, that no such approval shall be required unless an aggregate
of at least 50% of the shares of Series A Convertible Preferred Stock and shares
of any other series of Preferred Stock ranking on a parity with the Series A
Convertible Preferred Stock similarly entitled to vote is issued and outstanding
at such time, subject to adjustment in the manner indicated in Section 5.C.(a)
hereof to avoid dilution or concentration of voting power.
7. NO PREEMPTIVE RIGHTS.
The holders of Series A Convertible Preferred Stock shall have no
preemptive rights, and no holders of Series A Convertible Preferred Stock shall
be entitled, as a matter of right, to subscribe for or purchase shares of any
class now or hereafter authorized, or to subscribe for or purchase securities
convertible into or exchangeable for shares of any class or to which shall be
attached or appertain any warrants or rights entitling the holder thereof to
subscribe for or purchase shares of any class, except such rights of
subscription or purchase, if any, at such price or prices and upon such terms
and conditions as the Board of Directors in its discretion may from time to time
determine.
8. ACCRUED DIVIDENDS.
The term "accrued dividends" or "dividends accrued," wherever used with
reference to the Series A Convertible Preferred Stock in the Restated
Certificate of Incorporation of the Corporation, shall be deemed to mean an
amount which shall be equal to dividends thereon at the rate of $3.70 per annum
computed from the date on which such dividends began to accrue on such shares to
the date to which dividends are stated to accrue, less the aggregate amount
of dividends theretofore paid thereon.
9. PRIORITY.
Any reference in the Restated Certificate of Incorporation or in any
Certificate of Designation filed by the Corporation as contemplated in the
Restated Certificate of Incorporation to a class of stock ranking prior to or on
a parity with the Series A Convertible Preferred Stock shall be deemed to refer
to such classes of Stock, respectively, ranking prior to or on a parity with the
Series A Convertible Preferred Stock in respect of dividends or distribution of
assets on liquidation.
FURTHER RESOLVED, that the preferences of each share of Series
A Convertible Preferred Stock with respect to dividend payments and
distributions upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation shall be equal to the
preferences of the shares of Adjustable Rate Cumulative Preferred Stock
of the Corporation from time to time outstanding in every respect.
FURTHER RESOLVED, that the proper officers of the Corporation
file a copy of the foregoing resolutions with the Secretary of State of
Delaware in accordance with the provisions of Section 103 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, NATIONAL CITY CORPORATION has caused its corporate
seal to be hereunto affixed and this Certificate to be signed by its Chairman
and its Secretary this 7th day of November, 1984.
/s/ Julien L McCall
--------------------------------
Julien L McCall, Chairman
[SEAL]
/s/ David W. Hart
-------------------------------------------
David W. Hart, Secretary
<PAGE> 16
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE EIGHTH
DAY OF NOVEMBER, A.D. 1984, AT 10:01 O'CLOCK A.M.
/s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8779751
DATE: 11-26-97
[Seal of the Secretary of the state of Delaware]
0784371 8100
971405379
<PAGE> 17
CERTIFICATE OF DESIGNATION
RIGHTS AND PREFERENCES
OF THE
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK
OF NATIONAL CITY CORPORATION
----------------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation, as amended, of the Corporation, and
pursuant to the provisions of Section 151 of the General Corporation Law of the
State of Delaware, said Board of Directors, at a meeting duly held on July 23,
1984, duly adopted a resolution providing for the designation, powers,
preferences, and rights, and the qualifications, limitations and/or restrictions
thereof, of the Adjustable Rate Cumulative Preferred Stock of the Corporation,
which resolution is as follows:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation in accordance with the
provisions of its Restated Certificate of Incorporation, as amended, a
series of Preferred Stock of the Corporation is hereby created, such
series of Preferred Stock to be designated Adjustable Rate Cumulative
Preferred Stock, to consist of 12,000 shares, without par value, of
which the powers, preferences, and rights, and the qualifications,
limitations and/or restrictions thereof, shall be as follows:
1. DESIGNATION OF SERIES AND NUMBER OF SHARES.
The series of Preferred Stock is designated "Adjustable Rate Cumulative
Preferred Stock" (the "Adjustable Rate Preferred Stock"), and the number of
shares which shall constitute such series shall be 12,000 shares, without par
value, which may be issued in fractional shares, each representing one-fiftieth
of a share of Adjustable Rate Preferred Stock.
2. DIVIDENDS.
(1) Dividends on the shares of the Adjustable Rate Preferred
Stock shall be payable for each quarterly dividend period (hereinafter
referred to individually as a "Dividend Period" and collectively as
"Dividend Periods") which Dividend Periods shall commence on March 1,
June 1, September 1 and December 1 in each year and shall end on and
include the day next preceding the first day of the next Dividend
Period, at a rate per annum of the Stated Value (as defined in
paragraph (8) of this Section 2) equal to the Applicable Rate (as
defined in paragraph (2) of this Section 2) in respect of such Dividend
Period. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when and as declared by the
Board of Directors, on the first day of March, June, September and
December of each year. Each such dividend shall be paid to the holders
of record of shares of Adjustable Rate Preferred Stock as they appear
on the stock register of the corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed
by the Board of Directors or by a committee of said Board of Directors
duly authorized to fix such date. Dividends on account of arrears for
any past Dividend Periods may be declared and paid at any time, without
reference to any regular dividend payment date, to holders of record on
such date, not exceeding 45 days preceding the payment date thereof, as
may be fixed by the Board of Directors or by a committee of said Board
of Directors duly authorized to fix such date.
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<PAGE> 18
(2) Except as provided below in this paragraph, the "Applicable Rate"
for any Dividend Period shall be equal to 2.00% less than the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty Year
Constant Maturity Rate (each as hereinafter defined) for such Dividend Period.
In the event that the Corporation determines in good faith that for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate cannot be
determined for any Dividend Period, then the Applicable Rate for such
Dividend Period shall be equal to 2.00% less than the higher of
whichever two of such Rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be
determined for any Dividend Period, then the Applicable Rate for such
Dividend Period shall be equal to 2.00% less than whichever such Rate
can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be
determined for any Dividend Period, then the Applicable Rate in effect
for the preceding Dividend Period shall be continued for the Dividend
Period for which the Applicable Rate on this Adjustable Rate Preferred
Stock is being determined.
Anything herein to the contrary notwithstanding, the Applicable Rate for any
Dividend Period shall in no event be less than 6.00% per annum or greater than
13.00% per annum.
(3) Except as provided below in this paragraph, the "Treasury Bill
Rate" for each Dividend Period shall be the arithmetic average of the two most
recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period (as hereinafter defined) as provided below) for
three-month U.S. Treasury Bills, as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the last ten calendar days
of February, May, August or November, as the case may be, prior to the Dividend
Period for which the dividend rate on the Adjustable Rate Preferred Stock is
being determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate shall be published during
the relevant Calendar Period as provided below) for three-month U.S. Treasury
Bills, as published weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the Corporation.
In the event that a per annum market discount rate for three-month U.S. Treasury
Bills shall not be published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market discount rates
(or the one weekly per annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period as provided below) for all of
the U.S. Treasury Bills then having maturities of not less than 80 nor more than
100 days, as published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such rates, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good faith that for
any reason no such U.S. Treasury Bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum market discount rates
based upon the closing bids during such Calendar Period for each of the issues
of marketable non-interest bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S. Government securities
selected by the Corporation. In the event that the Corporation determines in
good faith that for any reason the Corporation cannot determine the Treasury
Bill Rate for any Dividend Period as provided above in this paragraph, then the
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<PAGE> 19
Treasury Bill Rate for such Dividend Period shall be the arithmetic average of
the per annum market discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable interest-bearing U.S.
Treasury securities with a maturity of not less than 80 nor more than 100 days,
as chosen and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S. Government securities
selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Ten Year Average Yields (or the one weekly per
annum Ten Year Average Yield, if only one such Yield shall be published during
the relevant Calendar Period as provided below), as published weekly by the
Federal Reserve Board during the Calendar Period immediately prior to the last
ten calendar days of February, May, August or November, as the case may be,
prior to the Dividend Period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal Reserve Board
does not publish such a weekly per annum Ten Year Average Yield during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (or the one weekly per annum Ten Year Average Yield, if
only one such Yield shall be published during the relevant Calendar Period as
provided below), as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the Ten
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum average yields to maturity (or
the one weekly per annum average yield to maturity, if only one such yield shall
be published during the relevant Calendar Period as provided below) for all of
the actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities as hereinafter defined) then having maturities of
not less than eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Ten Year Constant Maturity Rate for any Dividend Period as
provided above in this paragraph, then the Ten Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during such Calendar Period for
each of the issues of actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) with a final maturity date not
less than eight nor more than twelve years from the date of each such quotation,
as chosen and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S. Government securities
selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Dividend Period shall be the arithmetic average
of the two most recent weekly per annum Twenty Year Average Yields (or the one
weekly per annum Twenty Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as published
weekly by the Federal Reserve Board during the Calendar Period immediately prior
to the last ten calendar days of February, May, August or November, as the case
may be, prior to the Dividend Period for which the dividend rate on the
Adjustable Rate Preferred Stock is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per annum Twenty Year
Average Yield during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Twenty Year Average Yields (or the one weekly
per annum Twenty Year Average Yield, if only one such Yield shall be published
during the relevant Calendar Period as provided below), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government
3
<PAGE> 20
department or agency selected by the Corporation. In the event that a per annum
Twenty Year Average Yield shall not be published by the Federal Reserve Board or
by any Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Twenty Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
then having maturities of not less than eighteen nor more than twenty-two years,
as published during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the Corporation. In
the event that the Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate for any
Dividend Period as provided above in this paragraph, then the Twenty Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic average
of the per annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities) with a
final maturity date not less than eighteen nor more than twenty-two years from
the date of each such quotation, as chosen and quoted daily for each business
day in New York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three recognized dealers in
U.S. Government securities selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(7) The Applicable Rate with respect to each Dividend Period will be
calculated as promptly as practicable by the Corporation according to the
appropriate method described herein. The mathematical accuracy of each such
calculation will be confirmed in writing by independent accountants of
recognized standing. The Corporation will cause notice of each Applicable Rate
for a new dividend period to be enclosed with the dividend payment checks next
mailed to the holders of shares of the Adjustable Rate Preferred Stock.
(8) For purposes of this Section 2, the term:
(i) "Calendar Period" shall mean fourteen calendar
days;
(ii) "Special Securities" shall mean securities which
can, at the option of the holder, be surrendered at face value
in payment of any Federal estate tax or which provide tax
benefits to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep or
substantial discount;
(iii) "Ten Year Average Yield" shall mean the average
yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of ten years);
(iv) "Twenty Year Average Yield" shall mean the
average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of twenty years); and
(v) "Stated Value" shall mean $2500 per share.
(9) No full dividends shall be declared or paid or set apart for
payment on the preferred shares of any series ranking, as to dividends, on a
parity with or junior to the Adjustable Rate preferred Stock for any period
unless full cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment on the Adjustable Rate Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not paid in full, as aforesaid, upon
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<PAGE> 21
the shares of the Adjustable Rate Preferred Stock and any other series
of preferred shares ranking on a parity as to dividends with the
Adjustable Rate Preferred Stock, all dividends declared and paid upon
shares of the Adjustable Rate Preferred Stock and any other series of
preferred shares ranking on a parity as to dividends with the
Adjustable Rate Preferred Stock shall be declared and paid pro rata so
that the amount of dividends declared and paid per share on the
Adjustable Rate Preferred Stock and such series of other preferred
shares shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of the Adjustable Rate
Preferred Stock and such other series of preferred shares bear to each
other. Holders of shares of the Adjustable Rate Preferred Stock shall
not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on
the Adjustable Rate Preferred Stock. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment
or payments on the Adjustable Rate Preferred Stock which may be in
arrears.
(10) So long as any shares of the Adjustable Rate Preferred
Stock are outstanding, no dividend (other than a dividend in shares of
Common Stock or in any other stock ranking junior to the Adjustable
Rate Preferred Stock as to dividends and upon liquidation and other
than as provided in paragraph (9) of this Section 2) shall be declared
or paid or set aside for payment or other distribution declared or made
upon shares of the Common Stock or upon any other stock ranking junior
to or on a parity with the Adjustable Rate Preferred Stock as to
dividends or upon liquidation, nor shall any shares of Common Stock nor
any other stock of the Corporation ranking junior to or on a parity
with the Adjustable Rate Preferred Stock as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Adjustable Rate Preferred Stock as to
dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of the Adjustable Rate
Preferred Stock shall have been paid for all past Dividend Periods.
(11) Dividends payable on the Adjustable Rate Preferred Stock
for each full Dividend Period shall be computed by multiplying the
Applicable Rate by the Stated Value and dividing by four. Dividends
payable on the Adjustable Rate Preferred Stock for any period less than
a full Dividend Period shall be computed on the basis of a 360-day year
of 30-day months and the actual number of days elapsed in the period
for which payable.
3. Redemption.
(1) The shares of the Adjustable Rate Preferred Stock shall
not be redeemable prior to March 1, 1988. On or after March 1, 1988,
the Corporation, at its option, may redeem shares of the Adjustable
Rate Preferred Stock, as a whole or in part, at any time or from time
to time, at a redemption price (i) in the case of any redemption on a
redemption date occurring on or after March 1, 1988, and prior to March
1, 1993, of $2,575 per share and (ii) in the case of any redemption on
a redemption date occurring on or after March 1, 1993, of $2,500.00 per
share, plus, in each case, accrued and unpaid dividends thereon to the
date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of
the Adjustable Rate Preferred Stock are to be redeemed the number of
shares to be redeemed shall be determined by the Board of Directors and
the shares to be redeemed shall be determined by lot or pro rata as may
be determined by the Board of Directors or by any other method as may
be determined by the Board of Directors in its sole discretion to be
equitable.
(3) In the event the Corporation shall redeem shares of the
Adjustable Rate Preferred Stock, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the redemption date, to each holder of
record of the shares to be so redeemed, at such holder's address as the
same appears on the stock register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of the
Adjustable Rate Preferred Stock to be redeemed and, if fewer than all
the shares held by such holder are to be
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<PAGE> 22
redeemed, the number of such shares held by such holder to be so
redeemed; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
the shares of the Adjustable Rate Preferred Stock so called for
redemption shall cease to accrue, said shares shall be deemed no longer
to be outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in
accordance with said notice of the certificates for any shares to be so
redeemed (properly endorsed or assigned for transfer, if the Board of
Directors shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price aforesaid.
In case fewer than all the shares represented by any such certificate
are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
(5) Any shares of the Adjustable Rate Preferred Stock which
shall at any time have been redeemed shall, after such redemption,
subject to any applicable provisions of the laws of the State of
Delaware, be restored to the status of authorized but unissued shares
of preferred stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors and shall not be available for reissue as shares of
Adjustable Rate Preferred Stock.
(6) Notwithstanding the foregoing provisions of this Section
3, if any dividends on the Adjustable Rate Preferred Stock are in
arrears, no shares of the Adjustable Rate Preferred Stock shall be
redeemed unless all outstanding shares of Adjustable Rate Preferred
Stock are simultaneously redeemed, and neither the Corporation nor any
subsidiary thereof shall purchase or otherwise acquire any shares of
the Adjustable Rate Preferred Stock; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of
the Adjustable Rate Preferred Stock pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of
the Adjustable Rate Preferred Stock.
4. CONVERSION OR EXCHANGE.
The holders of shares of the Adjustable Rate Preferred Stock shall not
have any rights herein to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
5. VOTING RIGHTS.
The holders of Adjustable Rate Preferred Stock shall be entitled at all
times to one vote for each share and, except as otherwise required by law, the
holders of shares of Adjustable Rate Convertible Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on all matters. No
adjustment of the voting rights of holders of shares of Adjustable Rate
Preferred Stock shall be made upon (nor shall their voting powers, rights or
preferences be deemed to be adversely affected by) the issuance of additional
shares of Common Stock, whether as a share dividend, to effect a split of the
common shares, for a consideration or otherwise.
6. LIQUIDATION PREFERENCE.
Upon the voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the Corporation, the holders of shares of
Adjustable Rate Preferred Stock shall be entitled to receive and be paid for
each share out of the assets of the Corporation (whether capital or surplus) the
sum of Two Thousand Five Hundred Dollars ($2,500) together with an amount equal
to the accrued and unpaid dividends thereon to the date of payment, before any
distribution of the assets shall be made to the holders of shares
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<PAGE> 23
of Common Stock or of any other class of stock junior to the Adjustable Rate
Preferred Stock; but the holders of shares of Adjustable Rate Preferred Stock
shall be entitled to no further participation in such distribution.
If upon such voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the net assets of the Corporation shall be
insufficient to permit the payment to the holders of all outstanding shares of
Preferred Stock of the Corporation of all series of the full preferential
amounts to which they are respectively entitled, then the entire net assets of
the Corporation shall be distributed ratably in respect of all outstanding
shares of Preferred Stock of the Corporation of all series in proportion to the
full preferential amount to which each such share is entitled.
FURTHER RESOLVED, that the preferences of each share of
Adjustable Rate Cumulative Preferred Stock with respect to dividend payments and
distributions upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation shall be equal to the preferences of the shares of
Series A Convertible Preferred Stock of the Corporation from time to time
outstanding in every respect.
FURTHER RESOLVED, that the proper officers of the Corporation
file a copy of the foregoing resolutions with the Secretary of State of Delaware
in accordance with the provisions of Section 103 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, NATIONAL CITY CORPORATION has caused its corporate
seal to be hereunto affixed and this Certificate to be signed by its Chairman
and its Secretary this 7th day of November, 1984.
/s/ Julien L. McCall
---------------------------------------
Julien L. McCall, Chairman
[SEAL]
/s/ David W. Hart
----------------------------------------
David W. Hart, Secretary
7
<PAGE> 24
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"BANCOHIO CORPORATION", A OHIO CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE NINTH DAY OF
NOVEMBER, A.D. 1984, AT 11:15 O'CLOCK A.M.
[SEAL OF DELAWARE SECRETARY
OF STATE'S OFFICE]
/s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8779752
DATE: 11-26-97
0784371 8100M
971405379
<PAGE> 25
CERTIFICATE OF MERGER
OF
BANCOHIO CORPORATION
INTO
NATIONAL CITY CORPORATION
The undersigned corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the constituent
corporations of the merger is as follows:
Name State of Incorporation
---- ----------------------
BancOhio Corporation Ohio
National City Corporation Delaware
SECOND: An Agreement and Plan of Merger dated as of March 28, 1984, as
amended, by and between the parties to the merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the requirements of Subsection (c) of Section 252 of the General
Corporation Law of the State of Delaware.
THIRD: The surviving corporation of the merger is National City
Corporation.
FOURTH: The Restated Certificate of Incorporation, as amended, of
National City Corporation, a Delaware corporation, shall continue unchanged as
the certificate of incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 1900 East Ninth
Street, Cleveland, Ohio 44114.
<PAGE> 26
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by
the surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
SEVENTH: The authorized capital stock of BancOhio Corporation, the only
constituent corporation which is not a corporation existing under the laws of
the State of Delaware, immediately prior to the effective time of the merger
consisted of a total of ten million eight hundred thousand (10,800,000) shares
of stock divided into two classes, as follows: (i) ten million (10,000,000)
Common Shares, par value of $6.66 2/3 per share and (ii) eight hundred thousand
(800,000) shares of Preferred Stock, par value of $25.00 per share.
IN WITNESS WHEREOF, the undersigned have caused this Certificate of
Merger to be duly executed as of this 9th day of November, 1984.
NATIONAL CITY CORPORATION
By /s/ Julien L. McCall
------------------------------
Julien L. McCall, Chairman
Attest:
/s/ David W. Hart
----------------------------
David W. Hart, Secretary
<PAGE> 27
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE ELEVENTH
DAY OF MAY, A.D. 1987, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
[SEAL OF THE ------------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
AUTHENTICATION: 8779753
DATE: 11-26-97
0784371 8100
971405379
<PAGE> 28
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
---------------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That a meeting of the Directors of the Corporation was duly
called and held on February 23, 1987, at which meeting of Directors a quorum was
present, and at such meeting the Directors, acting pursuant to Section 242 of
the General Corporation Law of the State of Delaware, adopted resolutions
setting forth a proposed Amendment to the first paragraph of Article Fourth, and
the addition of a new Article Seventh, of the Restated Certificate of
Incorporation of the Corporation dated March 12, 1973, declaring the
advisability of such proposed Amendments, and directing that such proposed
Amendments be considered at the annual meeting of stockholders to be held on
April 27, 1987.
SECOND: That thereafter a meeting of the stockholders of the
Corporation was duly called and held on April 27, 1987, upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware, at which meeting of stockholders a quorum was present, and at such
meeting the stockholders, acting pursuant to Section 242 of the General
Corporation Law of the State of Delaware, duly adopted an Amendment to the first
paragraph of Article Fourth of the Restated Certificate of Incorporation dated
March 12, 1973, so that the first paragraph of Article Fourth of the Restated
Certificate of Incorporation of the Corporation dated March 12, 1973 reads in
its entirety as follows:
"FOURTH. The Corporation is authorized to issue a total of one
hundred fifty-five million (155,000,000) shares of all classes of
stock. Of such total number of authorized shares of stock, one hundred
fifty million (150,000,000) shares are Common Stock, par value $4.00
per share, and five million (5,000,000) shares are Preferred Stock
without par value."
THIRD: That at the same meeting the stockholders, acting pursuant to
Section 242 of the General Corporation Law of the State of Delaware, duly
adopted a new Article Seventh to the Restated Certificate of Incorporation of
the Corporation dated March 12, 1973, which new Article reads in its entirety as
follows:
<PAGE> 29
"SEVENTH: No director or former director of this Corporation
shall be personally liable to this Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided
that this provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the Delaware General Corporation
Law, which deals with the paying of a dividend or the approving of a
stock repurchase or redemption which is illegal under Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit."
IN WITNESS WHEREOF, William R. Robertson, Vice Chairman of the Corpora-
tion, and Theodore W. Jones, Secretary of the Corporation, acting for and on
its behalf, have hereunto subscribed their names and caused the seal of the
Corporation to be affixed hereto on May 7, 1987.
NATIONAL CITY CORPORATION
By /s/ William R. Robertson
--------------------------------
William R. Robertson
Vice Chairman
(Seal)
Attest /s/ Theodore W. Jones
----------------------------
Theodore W. Jones,
Secretary
<PAGE> 30
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER, WHICH MERGE "BUCKEYE FINANCIAL CORPORATION", A OHIO
CORPORATION, WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF
"NATIONAL CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS
OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-FOURTH
DAY OF JANUARY, 1991, AT 12 O'CLOCK P.M.
/s/ Edward J. Freel
-----------------------------------
[SEAL OF THE Edward J. Freel, Secretary of State
SECRETARY OF STATE
OF DELAWARE] AUTHENTICATION: 8779754
DATE: 11-26-97
0784371 8100M
971405379
<PAGE> 31
TABLE OF CONTENTS
-----------------
PAGE
----
TABLE OF DISCLOSURE LETTERS ................................................ (v)
ARTICLE I - THE MERGER AND RELATED MATTERS ................................. 2
1.01 The Merger ............................................... 2
1.02 Effective Time ........................................... 2
1.03 Effect of the Merger ..................................... 3
1.04 Additional Actions ....................................... 4
1.05 Certificate of Incorporation and
By-Laws .................................................. 4
1.06 Registered Office ........................................ 4
1.07 Directors and Officers ................................... 5
1.08 Service of Process ....................................... 5
1.09 Statutory Agent .......................................... 5
ARTICLE II - CONVERSION OF SECURITIES ...................................... 6
2.01 Shares of the Surviving Corporation ...................... 6
2.02 No Conversion of NCC Common .............................. 6
2.03 Conversion of Buckeye Common;
Cancellation of Options .................................. 6
2.04 Exchange Agent ........................................... 8
2.05 No Fractional Shares ..................................... 8
2.06 Rights of Buckeye Shareholders ........................... 8
2.07 Exchange ................................................. 10
2.08 Closing of Stock Transfer Books .......................... 11
2.09 Changes in NCC Common .................................... 12
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF NCC ........................ 12
3.01 Corporate Organization, Capacity and
Authority ................................................ 12
(a) Organization ....................................... 12
(b) The NCC Subsidiaries ............................... 13
(c) Power and Authority ................................ 13
3.02 Corporate Authorization .................................. 14
3.03 Validity ................................................. 14
3.04 Capitalization ........................................... 16
(a) Capitalization of NCC .............................. 16
(b) Shares to Be Issued ................................ 16
3.05 Financial Statements ..................................... 16
3.06 Litigation and Claims .................................... 18
3.07 Compliance With Laws and Orders .......................... 18
3.08 Stockholder Communications and
Agency Filings ........................................... 19
3.09 Finder's Fee ............................................. 20
3.10 Full Disclosure .......................................... 20
(i)
<PAGE> 32
PAGE
----
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BUCKEYE. .................... 21
4.01 Corporate Organization, Capacity and Authority ........... 21
(a) Organization .................................... 21
(b) The Buckeye Subsidiaries ........................ 21
(c) Organization of the Buckeye
Subsidiaries .................................... 22
(d) Power and Authority ............................. 23
4.02 Corporate Authorization .................................. 23
4.03 Validity ................................................. 24
4.04 Capitalization ........................................... 25
4.05 Financial Statements ..................................... 27
4.06 Repurchase Agreements .................................... 29
4.07 Litigation and Claims .................................... 29
4.08 Compliance with Laws and Orders .......................... 30
4.09 Taxes .................................................... 31
4.10 Shareholder Communications and
Agency Filings ........................................... 31
4.11 Finder's Fee ............................................. 32
4.12 Insurance ................................................ 32
4.13 Absence of Certain Changes or Events ..................... 34
4.14 Title to Properties ...................................... 37
4.15 Books and Records ........................................ 38
4.16 Permits, Authorizations, Etc. ............................ 38
4.17 List of Properties, Contracts and
Other Data ............................................... 39
4.18 Employee Benefit Plans ................................... 41
4.19 Commitments .............................................. 44
4.20 Loans .................................................... 45
4.21 Transactions with Directors
or Officers .............................................. 47
4.22 Hazardous Material ....................................... 48
4.23 Environmental Laws and Permits ........................... 50
4.24 Reports, Statements and Returns .......................... 51
4.25 Liabilities .............................................. 51
4.26 Full Disclosure .......................................... 51
ARTICLE V - CERTAIN COVENANTS .............................................. 52
5.01 Mutual Covenants and Agreements .......................... 52
(a) Regulatory Matters .............................. 52
(b) Confidentiality ................................. 53
(c) Preparation of Proxy Statement and
Registration Statement .......................... 54
(d) Press Releases .................................. 56
(e) Preservation of Business Organization ........... 56
(f) Miscellaneous Agreements
and Consents .................................... 57
(ii)
<PAGE> 33
PAGE
----
5.02 Certain Covenants of NCC ................................. 58
(a) Effectiveness of Registration
Statement ....................................... 58
(b) Provision of Shares and Cash .................... 58
(c) Employee Benefits ............................... 59
(d) Listing on NYSE ................................. 59
(e) Indemnification ................................. 59
(f) Current Information ............................. 60
5.03 Certain Covenants of Buckeye ............................. 60
(a) No Settlements .................................. 60
(b) Capital Stock ................................... 60
(c) Other Negotiations .............................. 60
(d) Other Actions ................................... 61
(e) Distribution of Proxy Statement;
Shareholders' Approval .......................... 63
(f) Compliance with the 1933 Act .................... 64
(g) Current Information ............................. 64
(h) ESOP ............................................ 65
ARTICLE VI - CLOSING MATTERS ............................................... 66
6.01 The Closing .............................................. 66
6.02 Documents and Certificates ............................... 67
ARTICLE VII - CONDITIONS OF CLOSING ........................................ 67
7.01 Conditions to Obligations of NCC and
Buckeye .................................................. 67
(a) Shareholder Approval ........................... 67
(b) Governmental Approvals ......................... 67
(c) Registration Effective ......................... 68
(d) Listing on NYSE ................................ 68
(e) Litigation ..................................... 68
7.02 Conditions Applicable to Buckeye ......................... 68
(a) Performance of this Agreement .................. 68
(b) Accuracy of Representations and
Warranties ..................................... 69
(c) No Material Adverse Change ..................... 69
(d) Officers' Certificate Concerning
This Agreement ..................................69
(e) Opinion of Counsel ..............................70
(f) Change in Market Price ..........................70
7.03 Conditions Applicable to NCC ..............................70
(a) Performance of This Agreement ...................71
(b) Accuracy of Representations and
Warranties ......................................71
(c) Officers' Certificate Concerning
This Agreement ..................................71
(d) Opinion of Counsel ..............................71
(e) Release .........................................72
(iii)
<PAGE> 34
PAGE
ARTICLE VIII - TERMINATION ...................................................72
8.01 Termination .........................................................72
(a) By Mutual Consent . ........................................72
(b) By NCC or Buckeye ..........................................73
(c) By NCC .....................................................73
(d) By Buckeye .................................................74
(e) Procedure Upon Termination .................................75
8.02 Expenses ............................................................75
8.03 Effect of Termination ...............................................76
ARTICLE IX - MISCELLANEOUS ...................................................76
9.01 Non-Survival of Representations
and Warranties .............................................76
9.02 Notices .............................................................76
9.03 Assignment ..........................................................78
9.04 Waiver ..............................................................78
9.05 Entire Agreement ....................................................79
9.06 Amendments, Supplements, Etc. .......................................79
9.07 Delegation ..........................................................80
9.08 Limitations on Rights of the Parties ................................80
9.09 Captions; Counterparts ..............................................81
9.10 Governing Law .......................................................81
INDEX TO DEFINITIONS .........................................................82
(iv)
<PAGE> 35
TABLE OF DISCLOSURE LETTERS
---------------------------
NCC DISCLOSURE LETTER
---------------------
3.01(b) The NCC Subsidiaries
3.03 Validity
3.05 Financial Statements
3.06 Litigation and Claims
3.07 Compliance with Laws and Orders
BUCKEYE DISCLOSURE LETTER
-------------------------
4.01(b) The Buckeye Subsidiaries
4.01(c) Organization of the Buckeye Subsidiaries
4.03 Validity
4.04(a) Capitalization
4.05 Financial Statements
4.06 Repurchase Agreements
4.07 Litigation and Claims
4.08 Compliance with Laws and Orders
4.09 Taxes
4.12 Insurance
4.13 Absence of Certain Changes or Events
4.14 Title to Properties
4.16 Permits, Authorizations, Etc.
4.17 List of Properties, Contracts and Other Data
4.18 Employee Benefit Plans
4.19 Commitments
4.20 Loans
4.21 Transactions with Directors or Officers
4.22 Hazardous Material
4.23 Environmental Laws and Permits
4.25 Liabilities
5.03(d) Other Actions
(v)
<PAGE> 36
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER dated as of March 1, 1990 (the
"Agreement"), by and between National City Corporation ("NCC"), a Delaware
corporation and registered bank holding company under the Bank Holding Company
Act of 1956, 12 U.S.C. Section 1841, ET SEQ., as amended (the "BHCA"), and
Buckeye Financial Corporation ("Buckeye"), an Ohio corporation and registered
savings and loan holding company under Section 10 of the Home Owners' Loan Act
of 1933, as amended (the "HOLA"),
WITNESSETH:
WHEREAS, NCC and Buckeye desire that Buckeye merge with and into NCC
upon the terms and conditions hereinafter set forth; and
WHEREAS, the Board of Directors of NCC has adopted resolutions
approving this Agreement and the consummation of the transactions contemplated
hereby and authorizing the execution and delivery of this Agreement; and
WHEREAS, the Board of Directors of Buckeye has adopted resolutions
approving this Agreement and the consummation of the transactions contemplated
hereby and authorizing the execution and delivery of this Agreement;
NOW, THEREFORE, in consideration of these premises and the mutual
agreements, provisions and covenants contained in
<PAGE> 37
2
this Agreement, and intending to be legally bound hereby, NCC and Buckeye agree
as follows:
ARTICLE I
THE MERGER AND RELATED MATTERS
1.01 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 1.02), Buckeye shall be merged with
and into NCC (the "Merger") under and pursuant to the provisions of Section 252
of the General Corporation Law of the State of Delaware (the "GCL") and Section
1701.79 of the Ohio Revised Code (the "ORC"), NCC shall continue as the
surviving corporation (the "Surviving Corporation") and the separate corporate
existence of Buckeye shall cease. The Surviving Corporation shall have the name
"National City Corporation" and shall be governed by the laws of the State of
Delaware. NCC and Buckeye are sometimes hereinafter referred to as the
"Constituent Corporations."
1.02 EFFECTIVE TIME. If this Agreement is approved and adopted by the
shareholders of Buckeye as provided herein and in accordance with the ORC, the
parties hereto have received all necessary approvals by appropriate governmental
agencies of the transactions contemplated by this Agreement, and the Agreement
is not terminated as permitted by the provisions of this Agreement, an executed
counterpart of this Agreement, or a conformed copy hereof, together with duly
executed certificates of adoption pursuant to Section
<PAGE> 38
3
1701.81(A) of the ORC, shall be filed with the Secretary of State of the State
of Ohio and the Certificate of Merger required by Section 252 of the GLC shall
be filed with the Secretary of State of the State of Delaware. The Merger shall
become effective at the later of the times at which such filings are made with
the Secretaries of State of the States of Ohio and Delaware and become effective
(the "Effective Time").
1.03 EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided by the applicable provisions of the GCL and the ORC.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time: the separate corporate existence of NCC, as the Surviving
Corporation, with all its purposes, objects, rights, privileges, powers
certificates and franchises, shall continue unimpaired by the Merger; the title
to all real estate and other property owned by each of the Constituent
Corporations shall be vested in the Surviving Corporation without reversion or
impairment; the Surviving Corporation shall have all liabilities of each of the
Constituent Corporations; a proceeding pending against either Constituent
Corporation may be continued as if the Merger did not occur or the Surviving
Corporation may be substituted in the proceeding; and neither the rights of
creditors nor any liens upon the property of either of the Constituent
Corporations shall be impaired by the Merger, but such liens shall be limited to
the property upon which there were liens immediately prior to the Effective
Time.
<PAGE> 39
4
1.04 ADDITIONAL ACTIONS. If, at any time after the Effective Time, the
Surviving Corporation shall determine or be advised that any further deeds,
assignments or assurances in law or any other acts are necessary or desirable to
(a) vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of Buckeye, or (b) otherwise carry out the purposes of this
Agreement, Buckeye and its officers and directors shall be deemed to have
granted to the Surviving Corporation an irrevocable power of attorney to execute
and deliver all such deeds, assignments or assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and possession of such
rights, properties or assets in the Surviving Corporation and otherwise to carry
out the purposes of this Agreement, and the officers and directors of the
Surviving Corporation are authorized in the name of Buckeye or otherwise to take
any and all such action.
1.05 CERTIFICATE OF INCORPORATION AND BY-LAWS. From and after the
Effective Time, the Restated Certificate of Incorporation and First Restatement
of By-Laws, as amended, of NCC, as in effect immediately prior to the Effective
Time, shall be the Restated Certificate of Incorporation and First Restatement
of By-Laws, as amended, of the Surviving Corporation until thereafter amended as
provided by law.
1.06 REGISTERED OFFICE. The registered and principal office of the
Surviving Corporation in Delaware is to be
<PAGE> 40
5
located at 1209 Orange Street, City of Wilmington, County of Newcastle, State of
Delaware 19801, and The Corporation Trust Company shall be the registered agent
of the Surviving Corporation at such address.
1.07 DIRECTORS AND OFFICERS. The number, names and addresses of the
directors and officers of NCC immediately prior to the Effective Time shall be
the number, names and addresses of the directors and officers of the Surviving
Corporation from and after the Effective Time until one or more new directors or
officers are elected or appointed in accordance with applicable law.
1.08 SERVICE OF PROCESS. The Surviving Corporation may be served with
process in the State of Ohio in any proceeding for the enforcement of any
obligation of Buckeye or NCC and in any proceeding for the enforcement of the
rights of a dissenting shareholder of Buckeye against the Surviving Corporation,
and the Secretary of State of Ohio is hereby irrevocably appointed as the agent
of the Surviving Corporation to accept service of process in any such proceeding
in the State of Ohio.
1.09 STATUTORY AGENT. The Surviving Corporation desires to continue to
transact business in the State of Ohio as a foreign corporation and hereby
reaffirms the appointment of William R. Robertson, Deputy Chairman, National
City Corporation, 1900 East Ninth Street, Cleveland, Ohio 44114, as its
statutory agent with respect to any process, notice or demand.
<PAGE> 41
6
ARTICLE II
CONVERSION OF SECURITIES
2.01 SHARES OF THE SURVIVING CORPORATION. The authorized number and par
value of shares of all classes of capital stock of NCC immediately prior to the
Effective Time shall be the authorized number and par value of shares of the
classes of capital stock of the Surviving Corporation from and after the
Effective Time (until such time as changed by proper action).
2.02 NO CONVERSION OF NCC COMMON. Each share of Common Stock, par value
$4.00 per share, of NCC ("NCC Common") issued and outstanding immediately prior
to the Effective Time shall continue to be an issued and outstanding share of
Common Stock, par value $4.00 per share, of the Surviving Corporation from and
after the Effective Time (until such time as changed by proper action).
2.03 CONVERSION OF BUCKEYE COMMON; CANCELLATION OF OPTIONS. (a) At the
Effective Time, each common share, without par value, of Buckeye ("Buckeye
Common") then issued and outstanding, other than shares of Buckeye Common (i)
held in the treasury of Buckeye, which shall not be considered as outstanding
for purposes of this Agreement, (ii) held by NCC, (iii) held by any wholly-owned
subsidiary of NCC or Buckeye (other than shares held in an agency or fiduciary
capacity) or (iv) as to which the holder has commenced as of the Effective Time
all procedures necessary through the Effective Time to
<PAGE> 42
7
assert dissenters' rights in accordance with the provisions of Section 1701.85
of the ORC ("Dissenting Shares"), shall be converted into the right to receive
0.2 share of NCC Common and $3.08 in cash. Each share of Buckeye Common held (A)
in the treasury of Buckeye, (B) by NCC or (C) by any wholly-owned subsidiary of
NCC or Buckeye (other than shares held in an agency or fiduciary capacity)
immediately prior to the Effective Time shall, by virtue of the Merger,
forthwith and without any action on the part of the holder thereof be cancelled
and retired and all rights in respect thereof shall cease to exist. Holders of
Dissenting Shares shall, upon the effectiveness of the Merger with respect to
such Dissenting Shares, have only such rights, if any, as they may have pursuant
to Sections 1701.84 and 1701.85 of the ORC, and any amounts required by Section
1701.85 to be paid to any holder of Dissenting Shares with respect to such
Dissenting Shares shall be paid by the Surviving Corporation.
(b) Each option to purchase shares of Buckeye Common that remains
outstanding and unexercised immediately prior to the Effective Time shall be
cancelled and extinguished, and the holder thereof shall be entitled to receive,
in lieu thereof, cash in an amount equal to the number of shares subject to such
option multiplied by the difference between the per share option exercise price
and $10.63.
<PAGE> 43
8
2.04 EXCHANGE AGENT. National City Bank, Cleveland, Ohio, or such other
national or state bank selected by NCC, shall act as agent for purposes of
mailing and receiving transmittal letters and distributing certificates for NCC
Common and cash to the Buckeye shareholders (the "Exchange Agent").
2.05 NO FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, neither certificates nor scrip for fractional shares of NCC Common
shall be issued in the Merger. Each holder of shares of Buckeye Common who
otherwise would have been entitled to a fraction of a share of NCC Common shall
receive in lieu thereof cash in an amount determined by multiplying the
fractional share interest to which such holder would otherwise be entitled by
the closing price of a share of NCC Common on the New York Stock Exchange (the
"NYSE") at the close of business on the business day immediately prior to the
Closing Date.
2.06 RIGHTS OF BUCKEYE SHAREHOLDERS. At the Effective Time, each holder
of an outstanding certificate or certificates for shares of Buckeye Common shall
cease to have any rights as a shareholder of Buckeye, except such rights, if
any, as such holder may have with respect to Dissenting Shares. Each such holder
of an outstanding certificate or certificates for shares of Buckeye Common
converted in the Merger, upon proper surrender of each such certificate
(accompanied by a duly completed and executed letter of
<PAGE> 44
9
transmittal in the form to be sent to all former Buckeye shareholders and such
other evidences of authority and documentation as NCC or the Exchange Agent may
reasonably require) to the Exchange Agent, shall receive promptly in exchange
for each such certificate, NCC Common and cash as provided by this Agreement,
subject to any required withholding of taxes. Pending such surrender and
exchange, such holder's certificate or certificates for shares of Buckeye Common
shall be deemed for all corporate purposes, by virtue of the Merger and without
any action on the part of the holder thereof, to evidence only the right to
receive NCC Common and cash as provided by this Agreement. Unless and until any
such outstanding certificates for shares of Buckeye Common shall be so
surrendered, no dividend (cash or stock) payable to holders of record of shares
of NCC Common as of any time subsequent to the Effective Time shall be paid to
the holder of any outstanding certificate, and his or her other rights as a
stockholder of NCC shall be suspended, but upon such surrender of such
outstanding certificate there shall be paid to the record holder of the
certificate for shares of NCC Common issued in exchange therefor (in addition to
the cash paid to such holder as partial consideration for his or her shares of
Buckeye Common as provided by this Agreement) the amount of dividends, if any,
without interest and less any taxes which may have been imposed thereon, that
have theretofore become payable with respect to the number of whole shares of
NCC
<PAGE> 45
10
Common represented by such certificate issued upon such surrender and exchange,
and his or her other rights as a stockholder of NCC shall thereafter be
restored. Neither NCC nor the Exchange Agent shall pay any applicable stock
transfer taxes incurred by any shareholder in connection with the Merger.
2.07 EXCHANGE. As soon as practicable at or after the Effective Time,
the Exchange Agent shall distribute NCC Common and cash as provided by this
Agreement. NCC shall deliver to the Exchange Agent the cash necessary and one or
more certificates representing in the aggregate the number of shares of NCC
Common to be delivered in connection with the Merger in sufficient time for the
Exchange Agent to make such distribution. The obligation of NCC to exchange
shares of NCC Common and cash for Buckeye Common and to distribute cash in lieu
of fractional shares, as provided herein, shall not be discharged, reduced or
otherwise affected by the failure of the Exchange Agent to make such exchanges
and distributions for any reason whatsoever. The Exchange Agent shall not be
entitled to vote or to exercise any rights of ownership with respect to the
shares of NCC Common held by it from time to time hereunder, except that it
shall receive and hold all dividends or other distributions paid or distributed
with respect to such shares for the account of the persons entitled thereto. One
hundred eighty days following the Effective Time, the Exchange Agent shall
deliver to NCC any shares of NCC Common and funds (including any interest
received with respect thereto) which NCC has made available to the Exchange
Agent and which have not
<PAGE> 46
11
been disbursed to holders of certificates representing shares of Buckeye Common,
and thereafter such holders shall be entitled to look to the surviving
Corporation (subject to abandoned property, escheat or other similar laws) only
as general creditors thereof with respect to the shares of NCC Common and cash
deliverable or payable upon due surrender of their certificates. Notwithstanding
the foregoing, neither the Exchange Agent nor any party hereto shall be liable
to any holder of shares of Buckeye Common for any consideration paid to a public
official pursuant to any applicable abandoned property, escheat or similar law.
2.08 CLOSING OF STOCK TRANSFER BOOKS. The stock transfer books of
Buckeye shall be closed at the close of business on the business day immediately
preceding the date of the Effective Time. In the event of a transfer of
ownership of Buckeye Common which is not registered in the transfer of records
of Buckeye, the consideration to be distributed pursuant to this Agreement may
be delivered to a transferee, if the certificate representing such Buckeye
Common is presented to the Exchange Agent, accompanied by all documents required
to evidence and effect such transfer and by payment of any applicable stock
transfer taxes. NCC shall be entitled to rely upon the stock transfer books of
Buckeye to establish the identity of those persons entitled to receive the
consideration specified in this Agreement for their shares of Buckeye Common,
which books shall be conclusive with respect to the ownership
<PAGE> 47
12
of such shares. In the event of a dispute with respect to the ownership of any
such shares, NCC shall be entitled to deposit any consideration represented
thereby in escrow with an independent party and thereafter be relieved with
respect to any claims to such consideration.
2.09 CHANGES IN NCC COMMON. If between the date of this Agreement and
the Effective Time, the shares of NCC Common shall be changed into a different
number of shares by reason of any reclassification, recapitalization, split-up,
pro rata rights offering, combination or exchange or shares, or if a stock
dividend thereon shall be declared with a record date within said period, the
number of shares of NCC Common deliverable pursuant to this Agreement shall be
adjusted appropriately to preserve the consideration to be exchanged for the
shares of Buckeye Common.
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF NCC
NCC hereby represents and warrants to Buckeye as follows:
3.01 CORPORATE ORGANIZATION, CAPACITY AND AUTHORITY.
(a) ORGANIZATION. NCC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. NCC is
registered as a bank holding company under the BHCA. NCC has previously
delivered to Buckeye true, correct and complete copies of the currently
<PAGE> 48
13
effective Restated Certificate of Incorporation and First Restatement of
By-Laws, including all amendments and proposed amendments thereto.
(b) THE NCC SUBSIDIARIES. Except for entities identified in a
disclosure letter executed by NCC and dated and delivered by NCC to Buckeye as
of the date hereof (the "NCC Disclosure Letter") (each such entity an "NCC
Subsidiary" and collectively, the "NCC Subsidiaries"), and for entities owned by
National City Capital Corporation, a licensed Small Business Investment Company,
National City Venture Corporation, a venture capital company, and National City
Community Development Corporation, a community development company, there is no
corporation, bank, partnership, business trust, association or similar
organization over which NCC has control, as defined in 12 U.S.C. Section 1841(a)
(2), or with respect to which more than five percent (5%) of any class of voting
securities or other equity or beneficial interest is owned, directly or
indirectly, by NCC exclusive of such securities held in an agency or fiduciary
capacity. Each of the NCC Subsidiaries that is engaged in banking is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized.
(c) POWER AND AUTHORITY. NCC has full power and authority to
own, operate and lease its properties and to engage in the businesses and
activities now conducted by NCC. NCC is duly qualified to do business as a
foreign corporation in each jurisdiction in which the property owned, leased or
<PAGE> 49
14
operated by NCC, or the nature of the business conducted by NCC, makes such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the financial condition, results of operations,
business or prospects of NCC and the NCC Subsidiaries, taken as a whole, and is
in good standing in each jurisdiction in which NCC is so qualified to do
business.
3.02 CORPORATE AUTHORIZATION. NCC has all necessary corporate power and
authority to enter into this Agreement and to perform all of the obligations to
be performed by it hereunder. This Agreement has been duly and validly
authorized, executed and delivered by NCC and constitutes NCC's valid and
binding obligation enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding thereof may be
brought.
3.03 VALIDITY. Except as disclosed in the NCC Disclosure Letter, and
provided all filings required to be made and all approvals required to be
received in connection with the transactions contemplated by this Agreement
shall have been made and received, including, without limitation, the filings
with the Federal Trade Commission and the Department of Justice as required by
the Hart-Scott-Rodino Antitrust Improvements Act
<PAGE> 50
15
of 1976, as amended (the "HSR Filings"), and the approvals of the Board of
Governors of the Federal Reserve System (the "FRB"), the Office of Thrift
Supervision of the Department of the Treasury, any successor thereto, or if
applicable, its predecessor, the Federal Home Loan Bank Board (the "OTS"), and
the Office of the Comptroller of the Currency (the "OCC"), neither the execution
and delivery of this Agreement nor the consummation of the transactions
contemplated hereby will violate, result in the breach of, constitute a default
under, result in a termination of or accelerate the performance provided by the
terms of: any law; any rule or regulation of any government or agency of any
government, or any judgment, order, writ, decree, permit or license of any court
or other agency of any government to which NCC may be subject; any material
contract, instrument or commitment to which NCC or any NCC Subsidiary is a party
or by which NCC or any NCC Subsidiary is bound or committed; or NCC's Restated
Certificate of Incorporation or First Restatement of By-Laws, as amended.
Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will constitute an event which could, or with
the lapse of time or action by a third party could, result in any default under
or modify any of the foregoing or result in the creation of any lien, charge or
encumbrance upon any of NCC's assets or properties or upon any of NCC's capital
stock. The execution and delivery of this Agreement and the consummation of the
<PAGE> 51
16
transactions contemplated hereby will not require any consent or approval under
any such judgment, order, writ, decree, permit or license or the consent or
approval of any other party to any such material contract, commitment or
instrument, other than the required approvals of applicable regulatory
authorities mentioned hereinabove.
3.04 CAPITALIZATION.
(a) CAPITALIZATION OF NCC. As of January 10, 1990, the authorized
capital stock of NCC consists of a total of 155,000,000 shares of stock divided
into two classes as follows: (i) 150,000,000 shares of NCC Common, of which
60,645,945 shares are issued and outstanding, 2,474,809 shares are reserved
for issuance under employee stock option plans (options to purchase 1,814,453 of
such shares have been granted and are outstanding), and (ii) 5,000,000 shares of
Preferred Stock, without par value ("NCC, Preferred"), no shares of which are
issued and outstanding. All the issued and outstanding shares of NCC Common are
validly issued, fully paid and nonassessable, and have not been issued in
violation of the preemptive rights of any stockholder. As of the date of this
Agreement, (A) NCC has no outstanding class of capital stock other than NCC
Common and (B) except as aforesaid or as contemplated by this Agreement, there
are no outstanding options, warrants, conversion rights, subscriptions,
agreements or other commitments of any kind obligating or allowing NCC to issue
or sell, or to redeem, purchase or otherwise acquire,
<PAGE> 52
17
directly or indirectly, any shares of its capital stock, or any outstanding
restrictions, agreements or commitments of any kind to which NCC is a party or
by which NCC is bound which relate to or restrict in any way the issuance or
sale, or purchase, redemption or other acquisition, of any shares of the capital
stock of NCC.
(b) SHARES TO BE ISSUED. The shares of NCC Common to be issued in
connection with the Merger have been duly authorized and, when issued in
accordance with the terms of this Agreement, will be validly issued, fully paid
and nonassessable and will not have been issued in violation of preemptive
rights.
3.05 FINANCIAL STATEMENTS. NCC has delivered to Buckeye the
Consolidated Balance Sheets of NCC as at December 31 for each of the years 1989,
1988 and 1987 and the related Consolidated Statements of Income, Consolidated
Statements of Changes in Stockholders' Equity and Consolidated Statements of
Changes in Financial Position or Consolidated Statements of Cash Flows, as
applicable, for each of the years then ended, together with the notes thereto,
all as certified by Ernst & Young, independent public accountants (collectively,
the "NCC Financial Statements"). The NCC Financial Statements fairly present the
consolidated financial position of NCC as of the dates indicated and the
consolidated results of operations, changes in stockholders' equity and changes
in financial position or cash flows, as applicable, for the periods then ended
in conformity with generally accepted accounting
<PAGE> 53
18
principles applicable to financial institutions applied on a consistent basis.
Except for any liabilities or obligations referred to in this Agreement or set
forth in the NCC Disclosure Letter, as of December 31, 1989, neither NCC nor any
of the NCC Subsidiaries had any material liability or obligation, secured or
unsecured (whether accrued, absolute, known, unknown, contingent or otherwise)
not referred to, reflected or reserved against in the NCC Financial Statements.
3.06 LITIGATION AND CLAIMS. Except as disclosed in the NCC Financial
Statements or the NCC Disclosure Letter, as of the date hereof: (a) there are no
claims of any kind, or any litigation, proceeding, arbitration or investigation
pending affecting NCC or any NCC Subsidiary which, if decided adversely to NCC
or any NCC Subsidiary, might have a material adverse effect on the financial
condition, results of operations, business or prospects of NCC and the NCC
Subsidiaries, taken as a whole; (b) to the best of NCC's knowledge, no such
claim, litigation, proceeding, arbitration or investigation has been threatened;
and (c) there are no uncured material violations, or violations with respect to
which material refunds or restitutions may be required, cited in any compliance
report to NCC or any NCC Subsidiary as a result of the examination by any bank
regulatory authority.
3.07 COMPLIANCE WITH LAWS AND ORDERS. Except as set forth in the NCC
Disclosure Letter, (a) NCC and each NCC Subsidiary has complied with all laws,
regulations and orders
<PAGE> 54
19
and governing instruments applicable to it and to the conduct of its business,
except where the failure to so comply would not have a material adverse effect
on the financial condition, results of operations, business or prospects of NCC
and the NCC Subsidiaries, taken as a whole; and (b) neither NCC nor any NCC
Subsidiary is in default under, and no event has occurred which, with the lapse
of time or action by a third party, could result in the default under, the terms
of any judgment, order, writ, decree, permit or license of any agency of any
government or court, whether federal, state, municipal or local and whether at
law or in equity, except where such default would not have a material adverse
effect on the financial condition, results of operations, business or prospects
of NCC and the NCC Subsidiaries, taken as a whole.
3.08 STOCKHOLDER COMMUNICATIONS AND AGENCY FILINGS. NCC has filed all
reports and registration statements required to be filed by NCC with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of
1933 (the "1933 Act"), the Securities Exchange Act of 1934, as amended (the
"1934 Act"), the Investment Company Act of 1940, as amended, the Trust Indenture
Act of 1939, as amended, and the rules and regulations promulgated by the SEC
thereunder (collectively, the "Securities Laws") for periods ending after
December 31, 1986 (the "NCC Reports"), and the NCC Reports complied in all
material respects with the Securities Laws. To the best of NCC's knowledge, at
the time they were filed, none of the NCC
<PAGE> 55
20
Reports contained any untrue statement of a material fact or omitted to state
any material fact which made the statements contained therein in the aggregate,
in light of the circumstances under which they were made, misleading. NCC has
made all regulatory filings required to be made by NCC, except to the extent
that all failures to so file would not have a material adverse effect on the
financial condition, results of operations, business or prospects of NCC and the
NCC Subsidiaries, taken as a whole.
3.09 FINDER'S FEE. NCC has not directly or indirectly dealt with anyone
acting in the capacity of a finder or broker or investment advisor and has not
incurred, and shall not incur, any obligation for any finder's, broker's or
investment advisor's fee or commission in connection with the transactions
contemplated by this Agreement.
3.10 FULL DISCLOSURE. None of the information concerning NCC or the NCC
Subsidiaries contained in this Agreement, the NCC Disclosure Letter and the
exhibits hereto, or in any of the documents or instruments to be delivered by or
on behalf of NCC to Buckeye as contemplated by any provision of this Agreement,
or in any registration statement, proxy statement, information memorandum,
prospectus or other document to be used in connection with the transactions
contemplated hereby, or in any of the applications or documents to be filed with
governmental agencies in connection with the transactions contemplated hereby,
contains or will contain any untrue
<PAGE> 56
21
statement of a material fact or omits or will omit to state any material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they are or have been made, not misleading.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF BUCKEYE
Buckeye hereby represents and warrants to NCC as follows:
4.01 CORPORATE ORGANIZATION, CAPACITY AND AUTHORITY.
(a) ORGANIZATION. Buckeye is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, and it is
registered as a savings and loan holding company under the HOLA. Buckeye has
previously delivered to NCC true, correct and complete copies of the currently
effective Articles of Incorporation and Regulations, including all amendments
and proposed amendments thereto.
(b) THE BUCKEYE SUBSIDIARIES. Except for entities identified in a
disclosure letter executed by Buckeye and dated and delivered by Buckeye to NCC
as of the date hereof (the "Buckeye Disclosure Letter") (each such entity a
"Buckeye Subsidiary" and collectively, the "Buckeye Subsidiaries"), there is no
corporation, bank, partnership, business trust, association or similar
organization over which Buckeye has control, as defined in 12 U.S.C. Section
1730a(a)(2), or with respect to which more than five percent (5%) of any class
of voting
<PAGE> 57
22
securities or other equity or beneficial interest is owned, directly or
indirectly, by Buckeye exclusive of such securities held in an agency or
fiduciary capacity.
(c) ORGANIZATION OF THE BUCKEYE SUBSIDIARIES. Each of the Buckeye
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized, and, except as set forth in
the Buckeye Disclosure Letter, all of the outstanding capital stock of each such
Buckeye Subsidiary is owned of record and beneficially, free and clear of all
security interests and claims, by Buckeye. All of the outstanding shares of
capital stock of each of the Buckeye Subsidiaries are validly issued, fully paid
and nonassessable. Except as set forth in the Buckeye Disclosure Letter, Buckeye
Federal Savings and Loan Association (the "Thrift") is a stock savings
association duly organized, validly existing and in good standing under the laws
of the United States of America, and has been duly chartered by the OTS to
conduct a savings and loan business at the locations of its existing home and
branch offices. All deposit accounts of the Thrift are insured by the Federal
Deposit Insurance Corporation (the "FDIC") through the Savings Association
Insurance Fund (the "SAIF") to the fullest extent provided under the rules and
regulations of the FDIC and no proceedings for the termination or revocation of
such insurance are pending or, to the best of Buckeye's knowledge, threatened.
Buckeye has previously delivered to NCC true,
<PAGE> 58
23
correct and complete copies of the currently effective charter and bylaws or the
equivalent organizational documents of each of the Buckeye Subsidiaries,
including all amendments and proposed amendments relating thereto.
(d) POWER AND AUTHORITY. Buckeye and each of the Buckeye
Subsidiaries have full power and authority to own, operate and lease their
properties and to engage in the businesses and activities now conducted by them.
Buckeye and each of the Buckeye Subsidiaries are duly qualified to do business
as foreign corporations in each jurisdiction in which the property owned, leased
or operated by them; or the nature of the business conducted by them, makes such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the financial condition, results of operations,
business or prospects of Buckeye and the Buckeye Subsidiaries, taken as a
whole, and are in good standing in each jurisdiction in which they are so
qualified to do business.
4.02 CORPORATE AUTHORIZATION. Buckeye has all necessary corporate power
and authority to enter into this Agreement and; subject to the approval of this
Agreement by the shareholders of Buckeye, to perform all of the obligations to
be performed by it hereunder. This Agreement has been duly and validly
authorized, executed and delivered by Buckeye and constitutes its valid and
binding obligation enforceable in accordance with its terms, except as
enforcement may be limited
<PAGE> 59
24
by bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding thereof may be brought.
4.03 VALIDITY. Except as disclosed in the Buckeye Disclosure Letter,
and provided all filings required to be made and all approvals required to be
received in connection with the transactions contemplated by this Agreement
shall have been made and received, including, without limitation, the HSR
Filings and the approvals of the FRB, the OTS and the OCC, neither the execution
and delivery of this Agreement nor the consummation of the transactions
contemplated hereby will violate, result in the breach of, constitute a default
under, result in a termination of or accelerate the performance provided by the
terms of: any law; any rule or regulation of any government or agency of any
government, or any judgment, order, writ, decree, permit or license of any court
or other agency of any government to which Buckeye or any Buckeye Subsidiary may
be subject; any material contract, instrument of commitment to which Buckeye or
any Buckeye Subsidiary is a party or by which Buckeye or any of the Buckeye
Subsidiaries is bound or committed; or Buckeye's Articles of Incorporation or
Regulations or the equivalent organizational documents of any Buckeye
Subsidiary. Except as set forth in the Buckeye Disclosure Letter, neither the
execution and delivery of this
<PAGE> 60
25
Agreement nor the consummation of the transactions contemplated hereby will
constitute an event which could, or with the lapse of time or action by a third
party could, result in any default under or modify any of the foregoing or
result in the creation of any lien, charge or encumbrance upon any of Buckeye's
assets or properties or those of any Buckeye Subsidiary or upon any of Buckeye's
capital stock or that of any Buckeye Subsidiary. Except as set forth in the
Buckeye Disclosure Letter, the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not require any
consent or approval under any such judgment, order, writ, decree, permit or
license or the consent or approval of any other party to any such material
contract, commitment or instrument, other than the required approvals of
shareholders and applicable regulatory authorities mentioned hereinabove.
4.04 CAPITALIZATION. (a) As of the date of this Agreement, the
authorized capital stock of Buckeye consists of 4,500,000 common shares, without
par value, of Buckeye, of which 2,665,102 shares are issued and outstanding,
414,052 shares are reserved for issuance under employee stock option plans
(options to purchase 116,500 of such shares have been granted and are
outstanding), and none of which shares are held in the treasury of Buckeye. All
of the issued and outstanding shares of Buckeye Common are validly issued, fully
paid and nonassessable, and have not been issued in violation of any preemptive
right of any shareholder of Buckeye. As of the date
<PAGE> 61
26
of this Agreement: (i) Buckeye has no outstanding class of capital stock other
than Buckeye Common, and (ii) except as set forth in the Buckeye Disclosure
Letter or in Section 4.04(b) of this Agreement, there are no outstanding
options, warrants, conversion or exchange rights, subscriptions, agreements or
other commitments of any kind obligating Buckeye or any of the Buckeye
Subsidiaries to issue or sell, or to redeem, purchase or otherwise acquire,
directly or indirectly, any shares of its capital stock or any outstanding
restrictions, agreements or commitments of any kind to which Buckeye or any of
the Buckeye Subsidiaries is a party or by which Buckeye or any of the Buckeye
Subsidiaries is bound which relate to or restrict in any way the issuance or
sale, or purchase, redemption or other acquisition, of any shares of the capital
stock of Buckeye or any of the Buckeye Subsidiaries. Buckeye has previously
delivered to NCC true, correct and complete copies of all documents or other
evidences of all outstanding options, warrants, conversion rights,
subscriptions, agreements or other commitments of any kind obligating Buckeye or
any of the Buckeye Subsidiaries to issue or sell, or to redeem, purchase or
otherwise acquire, directly or indirectly, any shares of its capital stock or
any outstanding restrictions, agreements or commitments of any kind to which
Buckeye or any of the Buckeye Subsidiaries is a party or by which Buckeye or any
of the Buckeye Subsidiaries is bound which relate to or restrict in any way the
issuance or sale, or purchase, redemption or other
<PAGE> 62
27
acquisition, of any shares of the capital stock of Buckeye or any of the Buckeye
Subsidiaries.
(b) As of the date hereof, there are 116,500 outstanding and
unexercised options to purchase shares of Buckeye Common, which options do not
include 75,000 additional options whose exercisability is tied to the attainment
of certain performance levels of Buckeye which have not and will not be
achieved. Buckeye has obtained the agreement of all holders of an outstanding
option or options to purchase shares of Buckeye Common (i) not to exercise his
or her option or options prior to the Effective Time and (ii) to agree to
accept, in exchange for the cancellation and extinguishing of his or her option
or options at the Effective Time, the right to receive cash in an amount equal
to the number of shares subject to such option or options multiplied by the
difference between the per share option exercise price and $10.63, pursuant
to Section 2.03(b) of this Agreement.
4.05 FINANCIAL STATEMENTS. Buckeye has delivered to NCC the following
financial statements (collectively, the "Buckeye Financial Statements"):
(a) the Consolidated Balance Sheets of Buckeye as at December 31
for each of the years 1988 and 1987 and the related Consolidated Statements
of Operations, Consolidated Statements of Changes in Shareholders' Equity
and Consolidated Statements of Cash Flows for each of the years then ended,
together with the notes thereto, all as
<PAGE> 63
28
reported upon by Deloitte & Touche, independent public accountants; and
(b) the Consolidated Balance Sheet of Buckeye as at December 31,
1989 and the related Consolidated Statement of Operations, Consolidated
Statement of Changes in Shareholders' Equity and Consolidated Statement of
Cash Flows for the period then ended, without any notes thereto (the
"Buckeye Unaudited Year-End Financial Statements").
The Buckeye Financial Statements fairly present the consolidated financial
position of Buckeye and the Buckeye Subsidiaries as of the dates indicated and
the consolidated results of operations, changes in shareholders' equity and
changes in cash flows for the periods then ended in conformity with generally
accepted accounting principles applicable to financial institutions applied on a
consistent basis, except that the Buckeye Unaudited Year-End Financial
Statements do not contain any notes thereto. Except for any liabilities or
obligations referred to in this Agreement or set forth in the Buckeye Disclosure
Letter, as of December 31, 1989, neither Buckeye nor any of the Buckeye
Subsidiaries had any material liability or obligation, secured or unsecured
(whether accrued, absolute, known, unknown, contingent or otherwise) not
referred to, reflected or reserved against in the Buckeye Financial Statements.
Except as to such matters as would be contained in the notes to such statements,
the Buckeye Unaudited Year-End Financial Statements shall be the same in all
material respects
<PAGE> 64
29
as the Consolidated Balance Sheet of Buckeye as at December 31, 1988 and the
related Consolidated Statement of Operations, Consolidated Statement of Changes
in Shareholders' Equity and Consolidated Statement of Cash Flows for the period
then ended, together with the notes thereto, when they have been reported upon
by Deloitte & Touche, independent public accountants.
4.06 REPURCHASE AGREEMENTS. Except as set forth in the Buckeye
Disclosure Letter, with respect to all repurchase agreements to which Buckeye or
any Buckeye Subsidiary is a party, (a) where Buckeye or a Buckeye Subsidiary has
the obligation to sell securities, it has a valid, perfected first lien or
security interest in the government securities or other collateral securing the
repurchase agreement, and the value of the collateral securing each such
repurchase agreement equals or exceeds the amount of the debt secured by such
collateral under such agreement, and (b) where Buckeye or a Buckeye Subsidiary
has the obligation to buy securities, the value of the collateral securing
Buckeye's or the Buckeye Subsidiary's obligation does not materially exceed the
amount of the obligation.
4.07 LITIGATION AND CLAIMS. Except as disclosed in the Buckeye
Financial Statements and the Buckeye Disclosure Letter, as of the date hereof:
(a) there are no claims of any kind, or any litigation, proceeding, arbitration
or investigation pending affecting Buckeye or any Buckeye Subsidiary which, if
decided adversely to Buckeye or any
<PAGE> 65
30
Buckeye Subsidiary, might have a material adverse effect on the financial
condition, results of operations, business or prospects of Buckeye and the
Buckeye Subsidiaries, taken as a whole; (b) to the best of Buckeye's knowledge,
no such claim, litigation, proceeding, arbitration or investigation has been
threatened; and (c) there are no uncured material violations, or violations with
respect to which material refunds or restitutions may be required, cited in any
compliance report to Buckeye or any Buckeye Subsidiary as a result of the
examination by any bank regulatory authority.
4.08 COMPLIANCE WITH LAWS AND ORDERS. Except as set forth in the
Buckeye Disclosure Letter, (a) Buckeye and each Buckeye Subsidiary has complied
with all laws, regulations and orders and governing instruments applicable to it
and to the conduct of its business, except where the failure to so comply would
not have a material adverse effect on the financial condition, results of
operations, business or prospects of Buckeye and the Buckeye Subsidiaries, taken
as a whole; and (b) neither Buckeye nor any Buckeye Subsidiary is in default
under, and no event has occurred which, with the lapse of time or action by a
third party, could result in the default under, the terms of any judgment,
order, writ, decree, permit or license of any agency of any government or court,
whether federal, state, municipal or local and whether at law or in equity,
except where such default would not have a material adverse effect on the
financial condition, results of
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operations, business or prospects of Buckeye and the Buckeye Subsidiaries, taken
as a whole.
4.09 TAXES. Except as set forth in the Buckeye Disclosure Letter, all
federal, state and local income tax returns of Buckeye and each Buckeye
Subsidiary have been filed with the Internal Revenue Service ("IRS") or other
appropriate taxing authorities with respect to all fiscal years prior to and
including the fiscal year ended December 31, 1988. Buckeye and each Buckeye
Subsidiary have paid all taxes shown to be due on such returns. Buckeye and each
Buckeye Subsidiary have adequately reserved, in accordance with generally
accepted accounting principles applicable to financial institutions applied on a
consistent basis, on the Buckeye Financial Statements for the payment of all
unpaid federal, state and local taxes, including interest and penalties, payable
in respect of any taxable event or period (including interim periods) ending on
December 31, 1989 and for all fiscal years prior thereto.
4.10 SHAREHOLDER COMMUNICATIONS AND AGENCY FILINGS. Buckeye has filed
all reports and registration statements required to be filed by Buckeye with the
SEC pursuant to the Securities Laws for periods ending after December 31, 1986
(the "Buckeye Reports"), and the Buckeye Reports complied in all material
respects with the Securities Laws. To the best of Buckeye's knowledge, at the
time they were filed, none of the Buckeye Reports contained any untrue statement
of a material
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32
fact or omitted to state any material fact which made the statements contained
therein in the aggregate, in light of the circumstances under which they were
made, misleading. Buckeye has filed all documents required to be filed by
Buckeye with the Federal Home Loan Bank of Cincinnati, Ohio, the OTS and the
FDIC under various banking laws and regulations, except to the extent that all
failures to so file would not have a material adverse effect on the financial
condition, results of operations, business or prospects of Buckeye and the
Buckeye Subsidiaries, taken as a whole.
4.11 FINDER'S FEE. Buckeye has not directly or indirectly dealt with
anyone acting in the capacity of a finder or broker or investment advisor and
has not incurred, and shall not incur, any obligation for any finder's, broker's
or investment advisor's fee or commission in connection with the transactions
contemplated by this Agreement, except with respect to Kaplan, Smith &
Associates, Inc., who have rendered a fairness opinion and will be paid in the
aggregate $150,000 plus expenses.
4.12 INSURANCE. Except as set forth in the Buckeye Disclosure Letter,
the business operations and all insurable properties and assets, other than
loans, of Buckeye and the Buckeye Subsidiaries are insured in all material
respects for their benefit against all risks that, to the best of Buckeye's
knowledge, are customarily insured against in the industry and that are usually
insured against by businesses operating
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33
similar businesses or properties in the localities where such businesses or
properties are located, in each case (a) under policies issued by insurers of
recognized responsibility, in such amounts with such deductibles and against
such risks and losses as are, in the reasonable opinion of Buckeye or such
insured Buckeye Subsidiary, adequate for the business engaged in by Buckeye or
the Buckeye Subsidiary, as the case may be, or (b) by self-insurance or
self-retention by Buckeye and its Subsidiaries as described in the Buckeye
Disclosure Letter. A description of the insurance policies, and self-insurance
and self-retention programs, of Buckeye and the Buckeye Subsidiaries is set
forth in the Buckeye Disclosure Letter. Except as set forth in the Buckeye
Disclosure Letter, neither Buckeye nor any of the Buckeye Subsidiaries is in
default in the payment of any premium, has currently outstanding any material
claim with respect to such insurance coverage or has received notification of,
or has knowledge of the existence of any grounds for, the cancellation or
proposed cancellation of any such policies or bonds or any reason why any such
policies or bonds would not be valid, binding and enforceable in all material
respects, except as enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding thereof may be brought.
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34
4.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in the
Buckeye Disclosure Letter, since December 31, 1989, Buckeye and the Buckeye
Subsidiaries have conducted their respective businesses only in the ordinary and
usual course consistent with past practices, and there has not been:
(a) any material adverse change in the financial condition, results
of operations, assets, properties, businesses, operations or prospects of
Buckeye and the Buckeye Subsidiaries, taken as a whole;
(b) any change in the capitalization of Buckeye or any Buckeye
Subsidiary, including, without limitation, the issuance by Buckeye of any
shares of stock of any class or any subscriptions, options, warrants,
agreements, commitments, or other rights of any nature affecting or
relating in any manner whatsoever to the issuance of capital stock (other
than as contemplated by this Agreement);
(c) any release or discharge of any obligation or liability of any
person or entity related to or arising out of any loan made by Buckeye or
any Buckeye Subsidiary of any nature whatsoever, other than releases and
discharges which are either (i) made upon the contemporaneous receipt of
value by Buckeye or any of the Buckeye Subsidiaries or (ii) made in the
ordinary and usual course of business and not involving amounts greater
than $50,000;
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(d) (i) any new or amended Pension Plan or Welfare Plan (as such
terms are hereinafter defined) or (ii) any salary or wage increase of any
officer or employee of Buckeye or any Buckeye Subsidiary not in accordance
with the established employee procedures and in conformity with past
practice;
(e) any creation, renewal, amendment or termination of, or any
notice of any proposed renewal, amendment or termination of, any material
contract, agreement or lease for goods, services or office space to which
Buckeye or any Buckeye Subsidiary is a party or by which it or its
property is bound, other than any automatic renewal or termination in
accordance with the terms of any such document;
(f) any action or inaction by Buckeye or any Buckeye Subsidiary
that constitutes a material breach or default by Buckeye or any Buckeye
Subsidiary under any material contract, agreement, obligation, lease or
license to which Buckeye or any of the Buckeye Subsidiaries is a party or
by which it or its property is bound;
(g) the creation by Buckeye or any Buckeye Subsidiary of any
mortgage, pledge, lien, claim, option or encumbrance on its material
property or assets, except for repurchase agreements and for any mortgage,
pledge, lien, claim, option or encumbrance on its material property or
assets incurred in the ordinary and usual course of business;
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(h) any loan, except as permitted in Section 563.43 of the rules
and regulations of the OTS, by Buckeye or any of the Buckeye Subsidiaries
to any officer or Director of Buckeye or any Buckeye Subsidiary or to any
member of the immediate family of such officer or Director or to any
person in which such officer or director, directly or indirectly, owns 10%
or more of any class of equity securities, in the case of a corporation,
or of any equity interest, in the case of a partnership, or any trust or
estate in which such officer or Director has a 10% or more beneficial
interest or as to which such officer or Director serves as a trustee or in
a similar capacity;
(i) except in the ordinary and usual course of business, and except
for deeds in lieu of payment or other assets acquired by foreclosure on
its security, any acquisition or disposition by Buckeye or any Buckeye
Subsidiary of any property or asset, whether real or personal, having a
fair market value in an amount greater than $50,000;
(j) any loss or damage (whether or not covered by insurance) to any
of the assets or properties of Buckeye or any Buckeye Subsidiary that
materially impairs or materially affects in any materially adverse manner
the ability of Buckeye and the Buckeye Subsidiaries, taken as a whole, to
conduct their business; and
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37
(k) any material change in any method of accounting or accounting
practice by Buckeye or any Buckeye Subsidiary, except for any changes
required by changes in regulatory accounting principles adopted by the OTS
or changes mandated by the Financial Accounting Standards Board.
4.14 TITLE TO PROPERTIES. Except as set forth in the Buckeye Disclosure
Letter, Buckeye and the Buckeye Subsidiaries have good and marketable title to
all material properties and assets owned by them, including, without limitation,
all property reflected in the 1989 Buckeye Unaudited Year-End Financial
Statements, except as since sold or otherwise disposed of in the ordinary and
usual course of business or as contemplated by this Agreement, free and clear of
all liens, charges and encumbrances, other than (a) as referred to in the 1989
Buckeye Unaudited Year-End Financial Statements, (b) any liens and assessments
for taxes not yet due and payable or being contested in good faith by
appropriate proceedings, and (c) such imperfections of title and encumbrances,
if any, as do not materially detract from the value or interfere with the actual
or intended use of the properties owned by Buckeye and the Buckeye Subsidiaries
or otherwise materially impair their business operations. All material leases
pursuant to which Buckeye and the Buckeye Subsidiaries lease real or personal
property are valid and binding in accordance with their respective terms, and
there is not under any of such leases any
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existing default or event of default, or any event which with notice or lapse of
time, or both, would constitute a default, the consequences of which will have a
material adverse effect on the financial condition, results of operations,
business or prospects of Buckeye and the Buckeye Subsidiaries, taken as a whole.
4.15 BOOKS AND RECORDS. The books and records of Buckeye and the
Buckeye Subsidiaries are in all material respects complete and correct, and such
books and records are being maintained in accordance with good business
practices and accurately reflect the basis for the financial position and
results of operations of Buckeye and the Buckeye Subsidiaries set forth in the
Buckeye Financial Statements.
4.16 PERMITS, AUTHORIZATIONS, ETC. Except as set forth in the Buckeye
Disclosure Letter, Buckeye and the Buckeye Subsidiaries have made all filings
to, and possess all approvals, authorizations, consents, licenses, orders and
other permits of, all governmental agencies and authorities, whether federal,
state, local or foreign, required to permit the operation of the businesses of
Buckeye and the Buckeye Subsidiaries as presently conducted, except approvals,
authorizations, consents, licenses, orders and other permits, the failure of
which to possess can be cured without having a material adverse effect on the
financial condition, results of operations, business or prospects of Buckeye and
the Buckeye Subsidiaries, taken as a whole, and Buckeye and the Buckeye
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Subsidiaries have received no notice of noncompliance or default with respect
thereto.
4.17 LIST OF PROPERTIES, CONTRACTS AND OTHER DATA. The Buckeye
Disclosure Letter lists or describes, as of December 31, 1989:
(a) all real property owned by Buckeye or any of the Buckeye
Subsidiaries and all leases of real or personal property (except leases of
personal property involving annual rental payments of less than $12,000)
to which Buckeye or any of the Buckeye Subsidiaries is a party;
(b) Except for loans and interest rate swaps, all contracts and
commitments for capital improvements and all contracts and commitments
involving the payment by or to Buckeye or any of the Buckeye Subsidiaries
of more than $25,000 with respect to any one contract or commitment or any
related group of contracts or commitments;
(c) all employment and consulting agreements not terminable at
will and (i) with a remaining term in excess of one year, or (ii)
requiring a payment after the Closing Date in excess of $1,000, or (iii)
providing severance or termination payments, executive compensation plans,
bonus plans or other incentive compensation plans, deferred compensation
agreements, employee pension plans or retirement plans, employee profit
sharing plans, and group life insurance, hospitalization insurance or
other plans or arrangements (whether formal or informal) providing for
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benefits for directors, officers or other employees of Buckeye or any of
the Buckeye Subsidiaries;
(d) the names and compensation rates of all employees of Buckeye
or any of the Buckeye Subsidiaries whose current annual rate of
compensation (including without limitation mandatory contractual bonuses
but excluding discretionary bonuses) is $35,000 or more;
(e) the names of all retired directors, officers and other
employees of Buckeye or any of the Buckeye Subsidiaries who are receiving
or are entitled to receive any pensions not covered by any funded pension
plan to which Buckeye or any of the Buckeye Subsidiaries is a party and
the dollar amount of benefits which each such person is so entitled to
receive;
(f) all outstanding debt instruments evidencing any indebtedness
individually or in the aggregate to any one person or lender in excess of
$500,000 owed or guaranteed by Buckeye or any Buckeye Subsidiary to any
person other than Buckeye or any Buckeye Subsidiary; and
(g) all interest rate swaps, except for those involving notional
amounts not in excess of $5,000,000.
Except as set forth in the Buckeye Disclosure Letter, there is not under any
document, right, obligation or commitment referred to in the foregoing list any
existing default or event of default caused by Buckeye or any Buckeye Subsidiary
or, to the best of Buckeye's knowledge, any other party thereto, or
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any event which with notice and/or lapse of time would constitute a default on
the part of Buckeye or any of the Buckeye Subsidiaries or, to the best of
Buckeye's knowledge, any other party thereto, the consequences of which
reasonably could be expected to have a material adverse effect on the financial
condition, results of operations, business or prospects of Buckeye and the
Buckeye Subsidiaries, taken as a whole.
4.18 EMPLOYEE BENEFIT PLANS. The Buckeye Disclosure Letter lists all
"employee pension benefit plans" (the "Pension Plans"), as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and all "employee welfare benefit plans" (the "Welfare Plans"), as
defined in Section 3(1) of ERISA, which Buckeye or any of the Buckeye
Subsidiaries maintains or administers, or to which Buckeye or any of the Buckeye
Subsidiaries contributes or is required to contribute for the benefit of its
employees (the Pension Plans and Welfare Plans sometimes are referred to herein
collectively as the "Benefit Plans"). Buckeye has furnished NCC with true,
correct and complete copies of (a) the Benefit Plans or, in the case of
unwritten plans, true, correct and complete descriptions thereof, (b) all trust
agreements or funding arrangements, including without limitation insurance
contracts, with respect to each of the Benefit Plans, (c) the most recent annual
report (Form 5500, including, if applicable, all Schedules B thereto) for each
Benefit Plan, and (d) the
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most recent determination letter issued by the IRS with respect to the
qualification of each Pension Plan intended to qualify under Section 401(a) of
the Internal Revenue Code of 1986, as amended (the "Code") and the tax exempt
status of the trusts related thereto. No Benefit Plan is a "multiemployer plan"
as defined in Section 3(37) or Section 4001(a)(3) of ERISA. Neither Buckeye nor
any of the Buckeye Subsidiaries nor any organization which is affiliated with
Buckeye or any of the Buckeye Subsidiaries within the meaning of Section 414(b),
(c), (m), (n) or (o) of the Code ("Affiliated Organizations") has any obligation
to contribute to, any liability with respect to a withdrawal from, or any other
liability with respect to, any such multiemployer plan. No "reportable event"
(as defined in Section 4043(b) of ERISA) with respect to which the notice
requirement has not been waived by applicable regulations has occurred with
respect to any Pension Plan, other than transactions described in the Buckeye
Disclosure Letter. Each Benefit Plan and each related funding arrangement has
been maintained in all material respects in accordance with the provisions of
ERISA, the applicable provisions of the Code, and all other applicable law. All
contributions required to be made to any Benefit Plan have been made or provided
for in the Buckeye Financial Statements. To the best of Buckeye's knowledge, no
actions, suits or claims (other than routine claims for benefits in the ordinary
and usual course of business) are pending or threatened nor, to the best of
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Buckeye's knowledge, are there any facts which could reasonably be expected to
give rise to any such actions, suits or claims (other than as noted earlier in
this sentence) against any Benefit Plan or the assets of any Benefit Plan.
Except as set forth in the Buckeye Disclosure Letter, no Pension Plan has been
completely or partially terminated and no condition exists that could constitute
grounds for termination of any Pension Plan by the Pension Benefit Guaranty
Corporation under Section 4042 of ERISA. No liability to the Pension Benefit
Guaranty Corporation has been incurred by Buckeye or any of the Buckeye
Subsidiaries or Affiliated Organizations or is expected with respect to any
Pension Plan (except for insurance premiums pursuant to Section 4007 of ERISA)
which would subject Buckeye or any of the Buckeye Subsidiaries, directly or
indirectly, to any liability. Except as set forth in the Buckeye Disclosure
Letter, with respect to the Benefit Plans, there has been no amendment of any
such Benefit Plan which would materially increase the annual expense associated
with such Benefit Plan above the level of the 1989 expense of such Benefit Plan
as set forth in the Buckeye Financial Statements. Except as set forth in the
Buckeye Disclosure Letter, no excise tax or other penalty has been assessed
against Buckeye or any of the Buckeye Subsidiaries with respect to the benefits
provided under any Benefit Plans, and no circumstances exist that would
constitute grounds for the assessment of any such excise tax or penalty. Neither
Buckeye nor any of the Buckeye Subsidiaries is aware of
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44
any action with respect to any Welfare Plan that would subject Buckeye, any of
the Buckeye Subsidiaries, NCC (or any of their officers or directors), or any
Welfare Plan to loss of income tax deduction or liability as a result of failure
to comply with the applicable provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"). Each of the Buckeye Financial Corporation
Employee Stock Ownership Plan, effective January 1, 1989 (the "ESOP") and the
Buckeye Financial Corporation 401(k) Plan is a qualified plan under Section
401(a) of the Code and its related trust is exempt from federal income tax under
Section 501(a) of the Code. The ESOP is an employee stock ownership plan
described in Section 4975(e)(7) of the Code. The ESOP and the transfer of
assets from the Buckeye Financial Corporation Pension Plan, as amended and
restated, effective July 1, 1984, to the ESOP comply with the requirements of
Section 4980(c)(3) of the Code to the extent required as of the date hereof.
4.19 COMMITMENTS. The Buckeye Disclosure Letter sets forth a true,
correct and complete list, as of December 31, 1989, of:
(a) the aggregate amount of the unfunded commitments by Buckeye and or
any of the Buckeye Subsidiaries to fund the following loans: (i) all single
family, residential first mortgage loans; (ii) all multi-family, residential
first mortgage loans; (iii) all home equity loans or lines of credit; (iv) all
unsecured commercial loans; (v) all commercial real estate loans; and (vi) all
other loans;
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(b) all commitments by Buckeye or any of the Buckeye Subsidiaries to
fund the following loans (collectively, the "Disclosed Loans"): (i) any single
family, residential first mortgage loan equal to or in excess of $250,000; (ii)
any multi-family, residential first mortgage loan equal to or in excess of
$250,000; (iii) any home equity loan or line of credit equal to or in excess of
$100,000; (iv) any unsecured commercial loan equal to or in excess of $100,000;
(v) any commercial real estate loan equal to or in excess of $250,000; or (vi)
any other loan equal to or in excess of $50,000; PROVIDED, HOWEVER, that the
Disclosed Loans shall include any multi-family, residential loan, unsecured
commercial loan or commercial real estate loan where such loan is to a borrower
whose total indebtedness to Buckeye or any of the Buckeye Subsidiaries,
individually or in the aggregate, will be in an amount greater than $500,000
after the making of such loan; and
(c) all financial guarantees involving amounts of $50,000 or more of
Buckeye or any of the Buckeye Subsidiaries outstanding (including letters of
credit).
4.20 LOANS.
(a) The Buckeye Disclosure Letter sets forth a true, correct and
complete list, as of December 31, 1989, of all Disclosed Loans of Buckeye or any
of the Buckeye Subsidiaries.
(b) The Buckeye Disclosure Letter sets forth a true, correct and
complete list, as of December 31, 1989, of all existing loans receivable of
Buckeye or any of the Buckeye
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46
Subsidiaries that were then past due as to principal or interest for a period of
60 days or more or were otherwise known by Buckeye or such Buckeye Subsidiary to
then be materially in default.
(c) Except as set forth in the Buckeye Disclosure Letter, as of
December 31, 1989, to the best of Buckeye's knowledge (i) there are no loans
receivable on the books of Buckeye or any of the Buckeye Subsidiaries that are,
individually or in the aggregate, material to Buckeye and the Buckeye
Subsidiaries, taken as a whole, as to which Buckeye or the applicable Buckeye
Subsidiary has substantial doubt as to the ability of the borrower thereunder to
repay them in accordance with their terms, (ii) all such loans are collectible
in the amounts carried on the books of Buckeye or the applicable Buckeye
Subsidiary; (iii) all material loans and investments of Buckeye and of each of
the Buckeye Subsidiaries are valid, binding and enforceable in all material
respects, under all applicable laws, rules and regulations, and is subject to no
material defenses, setoffs, counterclaims or disputes, except as enforcement may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceeding thereof may be brought; and (iv) with
respect to secured loans, the collateral security for each such loan that is,
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individually or in the aggregate, material to Buckeye or any of the Buckeye
Subsidiaries, is of a value not less than appropriate to secure repayment of
such indebtedness in accordance with Buckeye's or the applicable Buckeye
Subsidiary's customary lending practices, properly pledged or mortgaged to
Buckeye or such Buckeye Subsidiary and free of any material title defects.
4.21 TRANSACTIONS WITH DIRECTORS OR OFFICERS. The Buckeye Disclosure
Letter sets forth all loans outstanding at December 31, 1989 of Buckeye or any
of the Buckeye Subsidiaries (except credit card loans less than $5,000) to any
Director, officer (as defined in Section 561.32 of the rules and regulations of
the OTS) or, to the best of Buckeye's knowledge, to any spouse of such officer
or Director or any person in which, to the best of Buckeye's knowledge, such
Director or officer, directly or indirectly, owns 10% or more of any class of
equity securities, in the case of a partnership, or any trust or estate in which
such officer, director or stockholder has a 20% or more beneficial interest or
as to which such officer or Director serves as a director or in a similar
capacity. All such loans were entered into in the ordinary and usual course of
business, are not preferential in any respect (except those made in accordance
with employee loan policies described in the Buckeye Disclosure Letter and in
compliance with applicable rules and regulations of the OTS) and, in Buckeye's
or the applicable Buckeye Subsidiary's business
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judgment based upon its then current lending and credit evaluation policies and
practices, did not involve more than the normal risk of nonpayment. Except as
set forth in the Buckeye Disclosure Letter, as of December 31, 1989, all
deposits in excess of $5,000 made by any of the foregoing persons or entities
were accepted by Buckeye or the applicable Buckeye Subsidiaries in the ordinary
and usual course of business upon terms consistent with standard policies and
practices of Buckeye or the applicable Buckeye Subsidiary and bear rates of
interest that are not preferential in any respect; and such deposits do not
exceed $2,000,000 in the aggregate.
4.22 HAZARDOUS MATERIAL. Except as set forth in the Buckeye Disclosure
Schedule, and except for the use of less than ten gallons of a Hazardous
Material (as defined below) at any one time in any one situation, (a) neither
Buckeye, nor any Buckeye Subsidiary, nor, to the best of Buckeye's knowledge,
any other individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture or any
other entity, or a government (domestic or foreign) or any political subdivision
or agency thereof ("Person") has ever used, generated, processed, stored,
disposed of, released or discharged any chemical, substance, material, object,
condition, waste or combination thereof which is hazardous to human health or
safety or to the environment due to its radioactivity, ignitability,
corrosivity,
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reactivity, explosiveness, toxicity, carcinogenicity, infectiousness or other
harmful or potentially harmful properties or effects and which are now listed,
defined, regulated or formally proposed to be regulated in any manner by any
federal, state or local law or any regulator based upon, directly or indirectly,
such properties or effects ("Hazardous Material") in, on, under or about any of
the real property now or heretofore leased, owned, operated or otherwise
controlled by Buckeye or any Buckeye Subsidiary or any property in which Buckeye
or any Buckeye Subsidiary has any equitable interest (other than by a mortgage)
("Property"), or transported it to or from the Property, and none of the
Property contains any underground storage tank systems or portions thereof; (b)
all Hazardous Material at the facilities owned, operated or otherwise controlled
by Buckeye and the Buckeye Subsidiaries has been handled in compliance with any
and all laws, statutes, ordinances, rules, regulations, judgments, orders,
decrees, permits, concessions, grants, franchises, agreements, licenses, or
other governmental restrictions or requirements relating to health, the
environment or the release of any materials into the environment, now in effect
in any and all jurisdictions in which Buckeye and the Buckeye Subsidiaries are
or from time to time may be doing business (collectively, the "Environmental
Laws"), except where such failure to comply would not have a material adverse
impact; (c) all Hazardous Material which Buckeye or any of the Buckeye
Subsidiaries has generated,
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transported or arranged for disposal of has been disposed of in compliance with
Environmental Laws; and (d) Buckeye has no knowledge, and has received no
notification, administrative order, or other notice of enforcement, cleanup,
removal or other governmental or regulatory actions completed, instituted or
threatened under any Environmental Laws, or of claims made or threatened by any
Person against Buckeye, any of the Buckeye Subsidiaries or their Property
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any presence, release, discharge or migration of any Hazardous
Material.
4.23 ENVIRONMENTAL LAWS AND PERMITS. Except as set forth in the Buckeye
Disclosure Letter, (a) Buckeye and the Buckeye Subsidiaries have obtained all
permits required under all applicable Environmental Laws, (b) Buckeye, the
Buckeye Subsidiaries and their facilities are in compliance with all applicable
Environmental Laws, except where such failure to comply would not have a
material adverse impact; and (c) Buckeye has no reason to believe that Buckeye
or any of the Buckeye Subsidiaries will be unable to maintain compliance with
all Environmental Laws, or that its inability to maintain compliance with all
Environmental Laws would have a material adverse effect on the Property or on
the financial condition, results of operations, business or prospects of Buckeye
and the Buckeye Subsidiaries, taken as a whole.
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4.24 REPORTS, STATEMENTS AND RETURNS. Buckeye has separately delivered
to NCC each of the following reports, statements and returns:
(a) All of the quarterly reports of Buckeye or any of the Buckeye
Subsidiaries, as the case may be, to the OTS and the FDIC and all
correspondence relating to such reports with respect to each of such
periods from January 1, 1986, through the date hereof; and
(b) All federal income tax returns of Buckeye and the Buckeye
Subsidiaries filed for each of the taxable years during the period from
January 1, 1986, through the date hereof.
Each of the reports, statements and returns referred to above was properly
prepared in all material respects in accordance with all applicable laws and
regulations and properly presents in all material respects all information
required to be included therein. Buckeye has delivered to NCC all correspondence
relating to the examination reports of the OTS concerning Buckeye or any of the
Buckeye Subsidiaries, with respect to all periods subsequent to January 1, 1986.
4.25 LIABILITIES. Except as set forth in the Buckeye Disclosure Letter
or the Buckeye Financial Statements, Buckeye and the Buckeye Subsidiaries, taken
as a whole, have no material indebtedness, obligation or liability, contingent
or otherwise.
4.26 FULL DISCLOSURE. None of the information concerning Buckeye or the
Buckeye Subsidiaries contained in
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52
this Agreement, the Buckeye Disclosure Letter and the exhibits hereto, or in any
of the documents or instruments to be delivered by or on behalf of Buckeye to
NCC as contemplated by any provision of this Agreement, or in any registration
statement, proxy statement, information memorandum, prospectus or other document
to be used in connection with the transactions contemplated hereby, or in any
of the applications or documents to be filed with governmental agencies in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they are or have been made,
not misleading.
ARTICLE V
CERTAIN COVENANTS
5.01 MUTUAL COVENANTS AND AGREEMENTS. Each of NCC and Buckeye hereby
covenants and agrees that:
(a) Regulatory Matters. (i) It shall cooperate with the other
party and use its best efforts to prepare all necessary documentation, to effect
all necessary filings and to obtain all necessary permits, consents, approvals
and authorizations of all third parties and governmental bodies necessary to
consummate the transactions contemplated by this Agreement as soon as
practicable. The parties shall each have
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the right to review and approve in advance all information relating to it and
any of its respective subsidiaries, which appears in any filing made with, or
written material submitted to, any third party or governmental body in
connection with the transactions contemplated by this Agreement.
(ii) It shall furnish the other party with all information
concerning itself, its subsidiaries, directors, officers and stockholders and
such other matters as may be necessary or advisable in connection with any
statement or application made by or on behalf of them, or any of their
respective subsidiaries to any governmental body in connection with the Merger
and the other transactions, applications or filings contemplated by this
Agreement.
(iii) It shall promptly furnish the other party with copies of
written communications received by them or any of their respective subsidiaries
from, or delivered by any of the foregoing to, any governmental body in
connection with the Merger and the other transactions, applications or filings
contemplated by or pursuant to this Agreement. Each of the parties shall notify
the other party of any hearing or meeting to be held before any regulatory or
governmental authority in connection with the transactions contemplated hereby,
and each party shall have the right to attend and participate in any such
hearing or meeting unless objected to by the applicable regulatory or
governmental authority.
(b) CONFIDENTIALITY. All information furnished by one party to
the other party, or its officers, attorneys,
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54
accountants or other authorized representatives, in connection with this
Agreement or the transactions contemplated hereby shall be kept confidential by
such other party (and shall be used by it only in connection with this Agreement
and the transactions contemplated hereby) except to the extent that such
information (i) already is known to such other party when received, (ii)
thereafter becomes lawfully obtainable from other sources, or (iii) in the
opinion of counsel, is required to be disclosed in any document filed with the
SEC, the FRB, the OTS, the OCC or any other agency of any government. In the
event that the transactions contemplated by this Agreement shall fail to be
consummated, it shall promptly cause all copies of documents or extracts thereof
containing information and data as to another party hereto to be returned to the
party furnishing same.
(c) PREPARATION OF PROXY STATEMENT AND REGISTRATION STATEMENT. It
shall cooperate and consult with the other party hereto in the preparation of
the proxy statement to be mailed to Buckeye's shareholders in connection with
the meeting to be called to consider the Merger and to be filed by Buckeye with
the SEC (the "Proxy Statement") and the registration statement to be filed by
NCC with the SEC in connection with the NCC Common to be issued in the Merger
(the "Registration Statement"). When the Registration Statement or any
post-effective amendment thereto shall become effective and at all times
subsequent to such effectiveness, up to and
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including the date of the annual or special meeting of the shareholders of
Buckeye with respect to the transactions contemplated by this Agreement, such
Registration Statement and the Proxy Statement and all amendments or supplements
thereto, with respect to all information set forth therein furnished or to be
furnished by NCC relating to NCC and the NCC Subsidiaries and by Buckeye
relating to Buckeye and the Buckeye Subsidiaries (i) will comply in all material
respects with the applicable provisions of the 1933 Act and the 1934 Act and the
rules and regulations promulgated by the SEC thereunder and (ii) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading. All reports and registration statements (whether or not
effective) filed by it subsequent to the date hereof (A) will comply in all
material respects with the applicable provision of the 1933 Act and the 1934 Act
and the rules and regulations promulgated by the SEC thereunder and (B) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading. In no event, however, shall any party hereto be liable
for any untrue statement of a material fact or omission to state a material fact
in the Registration Statement or the Proxy Statement, or in any report or other
registration statement made in reliance upon, and in conformity with,
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written information concerning the other party furnished by the other party
specifically for use in the Registration Statement or Proxy Statement or any
report or registration statement. It shall advise the other party hereto
promptly of the happening of any event which makes untrue any statement of a
material fact contained in the Registration Statement or the Proxy Statement or
any amendment or supplement thereto or that requires the making of a change in
the Registration Statement or the Proxy Statement or any amendment or supplement
thereto in order to make any material statement therein not misleading.
(d) PRESS RELEASES. It shall not make any press release or other
public announcement concerning the transactions contemplated by this Agreement
without the consent of the other party hereto as to the form and contents of
such release or announcement, except to the extent that such may be required by
law. All press releases concerning the transactions contemplated by this
Agreement shall be issued jointly by NCC and Buckeye; PROVIDED, HOWEVER, that
separate press releases may be issued by either party hereto with the prior
consent of the other party.
(e) PRESERVATION OF BUSINESS ORGANIZATION. It shall (and shall
cause its respective subsidiaries to) use its best efforts to preserve without
material impairment the business organizations and to preserve the goodwill of
Buckeye and the Buckeye Subsidiaries as to customers and others having business
relations with them. Buckeye and each of the Buckeye
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Subsidiaries shall carry on their respective businesses in the ordinary and
usual course, diligently and in a manner consistent with their past practices.
(f) MISCELLANEOUS AGREEMENTS AND CONSENTS. Subject to the terms
and conditions herein provided, it shall use its best efforts to take, or cause
to be taken, all action, and to do, or cause to be done, all things necessary,
appropriate or desirable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, including,
without limitation, the filing of an executed counterpart of this Agreement, or
a conformed copy hereof, together with duly executed certificates of adoption,
with the Secretary of State of the State of Ohio and a Certificate of Merger
with the Secretary of State of the State of Delaware and other appropriate
documentation to effect the Merger. It shall not take, nor cause, nor to the
best of its ability permit to be taken, any action that would adversely affect
the qualification of the Merger as a reorganization under Section 368 of the
Code. It will, and will cause each of its respective subsidiaries to, use their
respective best efforts to obtain consents of all third parties and governmental
bodies necessary, appropriate or desirable for the consummation of the
transactions contemplated by this Agreement. It will, and will cause each of its
subsidiaries to, cooperate with the other party and its subsidiaries to retain
the key employees of Buckeye and the Buckeye Subsidiaries, minimize any adverse
tax consequences on either
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party or its respective subsidiaries as a result of the transactions
contemplated by this Agreement, and minimize the amount of capital that NCC is
directly or indirectly required to infuse into Buckeye or the Buckeye
Subsidiaries as a result of the transactions contemplated by this Agreement. In
case at any time after the Effective Time any further action is necessary,
appropriate or desirable to carry out the purposes of this Agreement, the
officers and/or directors of NCC shall be deemed to have been granted authority
in the name of Buckeye to take all such necessary action.
5.02 CERTAIN COVENANTS OF NCC. NCC hereby agrees with Buckeye as
follows:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. NCC shall advise
Buckeye, promptly after NCC receives notice thereof, of the time when the
Registration Statement has become effective or any supplement or amendment has
been filed, of the issuance of any stop order or the suspension of the
qualification of the NCC Common to be issued in connection with the Merger for
offering or sale in any jurisdiction, of the initiation or threat of any
proceeding for any such purpose, or of any request by the SEC for the amendment
or supplementation of the Registration Statement or for additional information.
(b) PROVISION OF SHARES AND CASH. NCC shall issue and provide the
shares of NCC Common and shall provide the cash deliverable upon the conversion
of shares of Buckeye Common pursuant to this Agreement, and shall provide the
cash to be paid to each option holder of Buckeye Common as provided
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59
in Section 2.03(b) and any cash required to be paid to the holders of any
Dissenting Shares. The shares of NCC Common to be issued and exchanged as
partial consideration for shares of Buckeye Common pursuant to this Agreement
will, at the Effective Time, be duly authorized, validly issued, fully paid and
nonassessable and subject to no preemptive rights.
(c) EMPLOYEE BENEFITS. Following the Effective Time, NCC will
provide or cause to be provided to employees of Buckeye and the Buckeye
Subsidiaries who become direct or indirect employees of NCC benefits which, when
taken as a whole, are generally comparable to those currently provided by NCC
and the NCC Subsidiaries to its or their respective employees.
(d) LISTING ON NYSE. NCC shall file a listing application with the
NYSE with respect to the shares of NCC Common to be issued and exchanged as
partial consideration for shares of Buckeye Common pursuant to this Agreement.
(e) INDEMNIFICATION. Whatever obligation or right Buckeye or any
of the Buckeye Subsidiaries has prior to the Effective Time with respect to
claims existing prior to, or made after, the Effective Time to indemnify the
officers and directors of Buckeye or any of the Buckeye Subsidiaries with
respect to any acts and omissions arising out of such individuals' service as
officers, directors, employees or agents of Buckeye or any of the Buckeye
Subsidiaries or as trustees or fiduciaries of any plan for the benefit of
employees of, or otherwise on behalf of, Buckeye or any of the
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Buckeye Subsidiaries, occurring prior to the Effective Time, shall become an
obligation of NCC after the Effective Time, and NCC shall fulfill such
obligations or exercise such rights in the same manner and to the same extent as
it does with respect to similar obligations or rights to NCC's officers and
directors.
(f) CURRENT INFORMATION. NCC shall furnish to Buckeye promptly
after such documents are available: (i) all reports, proxy statements or other
communications by it to its stockholders generally, and (ii) all press releases
relating to any transactions reportable to the NYSE.
5.03 CERTAIN COVENANTS OF BUCKEYE. Buckeye hereby agrees with NCC as
follows:
(a) NO SETTLEMENTS. Buckeye shall not settle or compromise any
claim for appraisal or dissenters' rights in respect of the Merger prior to the
Effective Time without the prior written consent of NCC.
(b) CAPITAL STOCK. Other than purchases made pursuant to Section
5.03(h) of this Agreement, either Buckeye nor any of the Buckeye Subsidiaries
shall issue or sell, or redeem, purchase or otherwise acquire, any shares of
capital stock or any options, rights, warrants or other securities convertible
or exchangeable into or otherwise evidencing, or shall enter into any agreement
or instrument evidencing, the right to acquire any shares of its capital stock
or of any of the Buckeye Subsidiaries, or agree to do any of the foregoing.
(c) OTHER NEGOTIATIONS. During the period from the date of this
Agreement to the Effective Time, except with
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the prior approval of NCC, Buckeye shall not, and shall not permit its
representatives to, directly or indirectly, provide any information (other than
information contained in a press release issued by the parties hereto)
concerning this transaction to, or initiate or solicit discussions with, any
corporation, partnership, person or other entity or group concerning any merger
in which neither Buckeye nor any Buckeye subsidiary is the acquiror or sale of
substantial assets, sale of shares of capital stock (or securities convertible
or exchangeable into or otherwise evidencing, or any agreement or instrument
evidencing, the right to acquire capital stock) or similar transaction involving
Buckeye or any of the Buckeye Subsidiaries (all such transactions being referred
to herein as "Acquisition Transactions"); PROVIDED, HOWEVER, that Buckeye shall
be permitted to disclose information concerning Buckeye to any potential buyer
who initiates contact with Buckeye. Buckeye shall promptly communicate to NCC
the terms of any proposal which it may receive in respect of an Acquisition
Transaction and any request by or indication of interest on the part of any
third party with respect to initiation of any Acquisition Transaction or
discussions with respect thereto.
(d) OTHER ACTIONS. Except as set forth in the Buckeye Disclosure
Letter, without the prior written consent or approval of NCC, during the period
from December 31, 1989 through the Closing, neither Buckeye nor any of the
Buckeye Subsidiaries shall: (i) increase the rate of compensation of, or pay any
bonus (including awards under its or any of its
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subsidiaries' incentive plans) to, any of its directors, officers or employees,
except increases or bonuses which (A) are not material in amount, (B) are in
accordance with existing policy and consistent in all material respects with
amounts given in past periods or (C) are derived from formulas set forth in
written agreements effective prior to the date hereof; (ii) enter into or modify
(except as may be required by any applicable law) its Benefit Plans in respect
of any of its present or former directors, officers or other employees; (iii)
dispose of or discontinue any major portion of its business or property, or
merge or consolidate with, or acquire all or any substantial portion of, the
business or property of any other entity; (iv) other than with respect to
deposits, issue any note or debenture or enter into any loan agreement for the
borrowing of funds other than in the ordinary and usual course of business
consistent with past practices; (v) enter into any contract, commitment or
instrument of a type which, if entered into prior to December 31, 1989, would
have had to have been disclosed in the Buckeye Disclosure Letter pursuant to
Sections 4.17, 4.19 and 4.20; (vi) permit any change to be made in the Buckeye
Articles of Incorporation or Regulations or any equivalent organizational
documents of any of the Buckeye subsidiaries; (vii) enter into any new
employment, management, consulting (other than outside consultants for a fee
under $5,000), deferred compensation, severance or other similar contract;
(viii) increase the membership of its Board of Directors; (ix) fail to maintain
its books and records in the
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ordinary and usual course of business in accordance with past practices, except
for such changes as are necessary to comply with generally accepted or
regulatory accounting principles, consistently applied; (x) fail to maintain in
full force and effect insurance generally comparable in amount and in scope of
coverage to that now maintained by it; (xi) make any material change to its
accounting methods or practices, other than changes required by generally
accepted or regulatory accounting principles, consistently applied; (xii) offer
interest rates on its deposit accounts or charge interest rates on its loans
which are significantly greater or lesser, respectively, than it presently
charges as compared to rates which are generally available in the market; (xiii)
make any new equity investments; (xiv) sell its interest in or change the
structure of any joint venture in which it has an interest (xv) compromise any
of its outstanding loans to a borrower where the total of all loans to the same
or related borrower is in excess of $500,000; (xvi) take, or omit to take, any
other act, the result of which would make any of its representations and
warranties set forth in Article IV untrue or incorrect if made anew after such
action or omission; or (xvii) agree to do any of the foregoing.
(e) DISTRIBUTION OF PROXY STATEMENT; SHAREHOLDERS' APPROVAL. At
the annual or a special meeting of its shareholders, Buckeye shall submit the
Proxy Statement to its shareholders, and its Board of Directors shall recommend
to the shareholders the approval of this Agreement (including the
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transactions contemplated hereby). It shall, at such meeting of its
shareholders, present this Agreement for approval by its shareholders. The Board
of Directors of Buckeye shall use its best efforts to obtain all votes and
approvals of its shareholders necessary for the approval and adoption of this
Agreement under the provisions of the ORC and its Articles of Incorporation and
Regulations. Buckeye shall not distribute any information to its shareholders
with respect to the transactions contemplated hereby without prior notice to,
and opportunity to comment upon such information by, NCC.
(f) COMPLIANCE WITH THE 1933 ACT. Buckeye agrees to deliver to NCC
a letter identifying all persons whom it believes to be, at the time this
Agreement is submitted to a vote of the shareholders of Buckeye, "affiliates" of
it for purposes of Rule 145 under the 1933 Act. Buckeye agrees to use its best
efforts to cause each person whom it identified as an "affiliate" in the letter
referred to above to deliver to NCC prior to the Closing a written agreement
providing that such person will not sell, pledge, transfer or otherwise dispose
of the shares of NCC Common to be received by such person in the Merger, except
in compliance with the applicable provisions of the 1933 Act and the rules and
regulations thereunder.
(g) CURRENT INFORMATION. During the period from the date of this
Agreement to the Effective Time, Buckeye shall cause one or more of its
designated representatives to confer on a monthly or more frequent basis with
representatives of NCC regarding its business, operations, prospects, assets and
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financial condition and matters relating to the completion of the transactions
contemplated hereby. Buckeye shall furnish to NCC promptly after such documents
are available: (i) all of the unaudited monthly financial reports of it or the
Buckeye Subsidiaries, (ii) unless disclosure is unlawful or otherwise
prohibited, all filings, registration statements or reports filed by it or any
of the Buckeye Subsidiaries with any federal, state or other governmental
agencies having supervisory or regulatory authority over it or any of its
subsidiaries, including, without limitation, the FDIC and the OTS, (iii) all
reports, proxy statements or other communications by it to its shareholders
generally, and (iv) all press releases of it or the Buckeye Subsidiaries.
Buckeye shall furnish to NCC the Consolidated Balance Sheet of Buckeye as at
December 31, 1989 and the related Consolidated Statement of Operations,
Consolidated Statement of Changes in Shareholders' Equity and Consolidated
Statement of Cash Flows for the year then ended, together with the notes
thereto, all as reported upon by Deloitte and Touche, independent public
accountants.
(h) ESOP. Buckeye shall cause the ESOP to use the cash held by the
ESOP to purchase shares of Buckeye Common within the time period prescribed by
Section 4980(c)(3) of the Code and take all such other actions as may be
necessary to remain in compliance with Section 4980(c)(3) of the Code.
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ARTICLE VI
CLOSING MATTERS
6.01 THE CLOSING. Subject to satisfaction or waiver of all conditions
precedent set forth in Article VII, the closing (the "Closing") shall be held at
the offices of National City Corporation, 1900 East Ninth Street, Cleveland,
Ohio, on a date (the "Closing Date") which is the first business day after the
30th calendar day after the later of:
(a) the first date on which the Merger may be consummated in
accordance with the approvals by the FRB, the OTS, the OCC, if such
approval is deemed necessary, and any other federal or state agency or
authority, pursuant to any applicable federal or state law, rule or
regulation; or
(b) the date the required approval of Buckeye's shareholders
shall have been obtained.
If any condition in Article VII is not satisfied in any material respect (or is
not duly waived) at the Closing, the party whose obligations are subject to such
condition may extend the date of the Closing (during which extension the other
party shall use its best efforts to cause all such conditions to be satisfied in
all material respects). If all conditions are determined to be satisfied in all
material respects (or are duly waived) at the Closing (whether or not delayed),
the Closing shall be consummated by the making of all necessary filings with the
Secretary of State of the State of Delaware under the GCL and the Secretary of
State of the State of Ohio under the ORC.
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6.02 DOCUMENTS AND CERTIFICATES. NCC and Buckeye shall use their
respective best efforts, on or prior to the Closing, to execute and deliver all
such instruments, documents or certificates as may be necessary or advisable, on
the advice of counsel, for the consummation at the Closing of the transactions
contemplated by this Agreement or to cause the Effective Time, subject to
consummation at the Closing, to occur as soon as practicable.
ARTICLE VII
CONDITIONS OF CLOSING
7.01 CONDITIONS TO OBLIGATIONS OF NCC AND BUCKEYE. The obligations of
Buckeye and NCC hereunder are subject to the following conditions:
(a) SHAREHOLDER APPROVAL. The required approval of
Buckeye's shareholders shall have been obtained.
(b) GOVERNMENTAL APPROVALS. All filings required to be made
and all approvals required to be received in connection with the transactions
contemplated by this Agreement shall have been made and received in such a
manner as to preserve the authority, franchises, regulatory approvals and
insurance (under applicable regulatory insurance funds), under which the
parties and their respective subsidiaries operate, including, without
limitation, the HSR Filings and the approvals of the FRB, the OTS and the OCC,
if such approval is deemed necessary, and each of such approvals shall be in
full force and effect at the Closing Date.
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(c) REGISTRATION EFFECTIVE. The Registration Statement
shall have become effective and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC, and Buckeye shall
have received a certificate to such effect from the officer of NCC designated
as its agent for service on the cover page of the Registration Statement.
(d) LISTING ON NYSE. The shares of NCC Common to be issued
and exchanged as partial consideration for shares of Buckeye Common pursuant to
this Agreement shall have been listed on the NYSE upon notice of issuance.
(e) LITIGATION. No action, suit, litigation, proceeding or
investigation shall have been formally instituted and be pending, or be
threatened, seeking to enjoin or prohibit the consummation of the Merger. On
the Closing Date, there shall not be in force any injunction, order or decree
restraining or enjoining consummation of the Merger.
7.02 CONDITIONS APPLICABLE TO BUCKEYE. The obligations of Buckeye
under this Agreement to cause the Merger to be consummated are, at its option,
subject to the following conditions, in addition to the conditions contained in
Section 7.01:
(a) PERFORMANCE OF THIS AGREEMENT. All the terms, covenants
and conditions of this Agreement to be complied with and performed by NCC on or
before the Closing
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Date shall have been fully complied with and performed in all material respects.
(b) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of NCC set forth in Article III shall be true and
correct both in all material respects on the date of this Agreement and as of
the Closing Date with the same force and effect as if such representations and
warranties were made anew at and as of the Closing Date, except: (i) to the
extent such representations and warranties are by their express provisions made
as of the date of this Agreement or another specified date; and (ii) for the
effect of any activities or transactions which may have taken place after the
date of this Agreement which are expressly contemplated by this Agreement.
(c) NO MATERIAL ADVERSE CHANGE. Since the date of this
Agreement, there shall have been no material adverse change (other than an event
or condition generally applicable to banking institutions) in the financial
condition, results of operations, business or prospects of NCC and the NCC
Subsidiaries, taken as a whole.
(d) OFFICERS' CERTIFICATE CONCERNING THIS AGREEMENT. NCC
shall have furnished to Buckeye a certificate dated the Closing Date, signed by
its chief executive officer and chief financial officer, to the effect that, to
the knowledge and belief of each of them, the conditions set forth in Sections
7.02(a) through 7.02(c) have been satisfied.
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(e) OPINION OF COUNSEL. Buckeye shall have received an
opinion of Robert T. Williams, General Counsel of NCC, dated the Closing Date
and reasonably satisfactory in form to Buckeye, as to the matters set forth in
Sections 3.01, 3.02 and 3.03, and an opinion of Jones, Day, Reavis & Pogue,
counsel for NCC, dated the Closing Date and reasonably satisfactory in form to
Buckeye, as to the matters set forth in Section 3.04(b), and to the effect that
upon completion of the filings contemplated by Section 1.02 of this Agreement,
(i) Buckeye will be merged with and into NCC and the separate existence of
Buckeye will cease, and (ii) the outstanding shares of Buckeye Common will be
converted into the right to receive NCC Common and cash upon the basis set
forth in this Agreement. In rendering such opinion such counsel may rely as to
factual matters on a certificate or certificates furnished by officers or
directors of NCC.
(f) CHANGE IN MARKET PRICE. At the close of business on the
last trading day immediately preceding the Closing Date, the total consideration
which would be paid if the consideration were based on the average of the
closing price per share of NCC Common on the NYSE for the 10 trading days ending
on the trading day immediately preceding the Closing Date shall equal or exceed
$9.50 per share of Buckeye Common.
7.03 CONDITIONS APPLICABLE TO NCC. The obligations of NCC under
this Agreement to cause the Merger to be consummated are, at its option, subject
to the following
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conditions, in addition to the conditions contained in Section 7.01:
(a) PERFORMANCE OF THIS AGREEMENT. All the terms, covenants
and conditions of this Agreement to be complied with and performed by Buckeye on
or before the Closing shall have been fully complied with and performed in all
material respects.
(b) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buckeye set forth in Article IV shall be true
and correct both in all material respects on the date of this Agreement and as
of the Closing Date with the same force and effect as if such representations
and warranties were made anew at and as of the Closing Date, except: (i) to the
extent such representations and warranties are by their express provisions made
as of the date of this Agreement or another specified date; and (ii) for the
effect of any activities or transactions which may have taken place after the
date of this Agreement which are expressly contemplated by this Agreement.
(c) OFFICERS' CERTIFICATE CONCERNING THIS AGREEMENT. Buckeye
shall have furnished to NCC a certificate dated the Closing Date, signed by its
chief executive officer and its chief financial officer, to the effect that, to
the knowledge and belief of each of them, the conditions set forth in Sections
7.03(a) through 7.03(c) have been satisfied.
(d) OPINION OF COUNSEL. NCC shall have received an opinion
of Robert W. Strouse, General Counsel of Buckeye,
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dated the Closing Date and reasonably satisfactory in form to NCC, as to the
matters set forth in Sections 4.01, 4.02 and 4.03 and an opinion of Vorys,
Sater, Seymour and Pease, counsel for Buckeye, dated the Closing Date and
reasonably satisfactory in form to NCC, as to the matters set forth in Section
4.04, and to the effect that upon completion of the filings contemplated by
Section 1.02 of this Agreement, (i) Buckeye will be merged with and into NCC and
the separate existence of Buckeye will cease, and (ii) the outstanding shares of
Buckeye Common will be converted into the right to receive NCC Common and cash
upon the basis set forth in this Agreement. In rendering such opinion such
counsel may rely as to factual matters on a certificate or certificates
furnished by officers or directors of Buckeye.
(e) RELEASE. NCC shall have received evidence reasonably
satisfactory to it that Buckeye and the Buckeye Subsidiaries have obtained a
full release without paying or undertaking to pay therefor an amount in excess
of $25,000, from any liability or obligation to provide funds after the date
hereof for the purpose disclosed in Section 4.25(f) of the Buckeye Disclosure
Letter.
ARTICLE VIII
TERMINATION
8.01 TERMINATION.
(a) BY MUTUAL CONSENT. This Agreement may be terminated and
the Merger abandoned pursuant to the mutual
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consent of the Boards of Directors of NCC and Buckeye at any time prior to the
Closing Date for any reason.
(b) BY NCC OR BUCKEYE. This Agreement may be terminated by
written notice from NCC to Buckeye (authorized by the Board of Directors of
NCC), or by written notice from Buckeye to NCC (authorized by the Board of
Directors of Buckeye) (i) in the event of a material breach by the other of any
representation, warranty or agreement contained in this Agreement which is not
cured within 60 days after written notice of such breach is given to the party
committing such breach, or (ii) if the Closing Date does not occur on or before
December 31, 1990.
(c) BY NCC. This Agreement may be terminated by written
notice from NCC to Buckeye (authorized by the Board of Directors of NCC) (i) if
any regulatory approvals or consents are granted subject to conditions or
restrictions which in the reasonable and good faith judgment of NCC (A) would
have a material adverse effect on the financial condition, results of
operations, business or prospects of Buckeye and the Buckeye Subsidiaries taken
as a whole, or NCC (including any requirements that NCC raise additional capital
to consummate the transactions contemplated by this Agreement), or (B) would
materially impair the value to NCC of Buckeye and the Buckeye Subsidiaries,
taken as a whole, except that the following conditions or restrictions which may
be contained in the approvals or consents in connection with the Merger shall
not be considered to impair materially the value of Buckeye and the Buckeye
Subsidiaries, taken as a whole, to NCC: (1) a
<PAGE> 109
74
requirement that at the Effective Time, or at such later time as may be
specified in such approval or consent, NCC shall cause sufficient cash to be
infused into Buckeye or the Buckeye Subsidiaries; provided that the total
additional capital that NCC is directly or indirectly required to infuse shall
not exceed an amount equal to the lesser of (x) the minimum capital requirements
as currently announced by the OTS or (y) $43,500,000, increased by any amount
which is required solely as a result of actions taken by Buckeye or the Buckeye
Subsidiaries at the request of NCC; and (2) a requirement that NCC enter into a
Capital Maintenance Dividend Agreement with the OTS which would include
provisions similar to those included in the OTS model form of agreement; or (ii)
if there occurs a change in law or regulation or official interpretation of law,
regulation, or accounting treatment which in the reasonable and good faith
judgment of NCC (A) would have a material adverse effect on the financial
condition, results of operations, business or prospects of Buckeye and the
Buckeye Subsidiaries, taken as a whole, or NCC or (B) would materially impair
the value to NCC of Buckeye and Buckeye Subsidiaries, taken as a whole.
(d) BY BUCKEYE. This Agreement may be terminated by
written notice from Buckeye to NCC (authorized by the Board of Directors of
Buckeye) (i) if all the conditions to Closing set forth in Sections 7.01 and
7.03 of this Agreement have been met (or have been tendered as would be required
to be delivered at the actual Closing) or waived by the appropriate party, and
the condition set forth in Section 7.02(f) has not
<PAGE> 110
75
been met or waived by Buckeye; or (ii) if within 10 days after Buckeye receives
a bona fide offer to purchase 100 percent of the outstanding shares of Buckeye
Common, or notice of commencement of a tender or exchange offer for more than 20
percent of the outstanding shares of Buckeye Common, in either case, at a price
greater than $10.63 per share, the Board of Directors of Buckeye determines that
its fiduciary duty requires it to consider such bona fide offer and terminate
the Agreement and Buckeye pays NCC a $1,400,000 fee.
(e) PROCEDURE UPON TERMINATION. In the event of the
termination of this Agreement, the Board or Boards of Directors so terminating
may direct its or their officers not to file the certificate of merger in the
office of the Secretary of State of the State of Delaware and an executed
counterpart of this Agreement, or a conformed copy hereof, together with duly
executed certificates of adoption, in the office of the Secretary of State of
Ohio, notwithstanding favorable action by the shareholders of Buckeye. In the
event this Agreement is terminated, the agreements of the parties contained in
Sections 5.01(b), 8.02 and 8.03 shall survive such termination.
8.02 EXPENSES. Each party shall pay all of its own fees and
expenses incurred in connection with the Merger; PROVIDED, HOWEVER, that in the
event Buckeye receives a bona fide offer to purchase 100 percent of the
outstanding shares of Buckeye Common, or a tender or exchange offer for more
than 20 percent of the outstanding shares of Buckeye Common is
<PAGE> 111
76
commenced, in either case, at a price greater than $10.63 per share, and Buckeye
terminates this agreement for any reason other than as set forth in Section
8.01(a), 8.01(b)(i), 8.01(c) or 8.01(d) or by reason of the parties' failure to
obtain all necessary approvals of governmental agencies of the transactions
contemplated by this Agreement, Buckeye shall pay NCC a $1,400,000 fee.
8.03 EFFECT OF TERMINATION. Notwithstanding anything to the
contrary contained in this Agreement, except for the payment of the fee provided
for in Section 8.01(d)(ii) or 8.02 of this Agreement, no party hereto, or any of
its directors or officers, shall have any liability or further obligation to the
other party to this Agreement in the event of the termination of this Agreement,
except in the event of any such termination arising out of the intentional or
willful breach by the other party of this Agreement; PROVIDED, HOWEVER, that
termination of this Agreement under Section 8.01(d)(ii) shall not be deemed to
be, or give rise to, an intentional or willful breach.
ARTICLE IX
MISCELLANEOUS
9.01 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in Articles III and IV shall survive the
Effective Time.
9.02 NOTICES. All notices and other communications by NCC or
Buckeye hereunder shall be in writing to the other
<PAGE> 112
77
party and shall be deemed to have been duly given when delivered in person or
posted by United States registered or certified mail, with postage prepaid,
addressed as follows:
(a) If to NCC:
National City Corporation
1900 East Ninth Street, 34th Floor
Cleveland, Ohio 44114-3484
Attention: Jeffrey M. Biggar,
Director of Corporate Planning
Copy to:
National City Corporation
1900 East Ninth Street, 17th Floor
Cleveland, Ohio 44114-3484
Attention: Robert T. Williams, Esq.,
General Counsel
And to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Dennis W. LaBarre, Esq.
(b) If to Buckeye:
Buckeye Financial Corporation
36 East Gay Street
Columbus, Ohio 43215
Attention: Michael J. McMennamin,
Chief Executive Officer
Copy to:
Vorys, Sater, Seymour and Pease
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008
Attention: Philip C. Johnston, Esq.
or to such other address or addresses as NCC or Buckeye may from time to time
designate with respect to itself by notice as provided herein, except that
notices of a change of address shall be effective only upon receipt.
<PAGE> 113
78
9.03 ASSIGNMENT. No party shall assign or delegate this Agreement
or any rights, interests or obligations hereunder without the prior written
consent of the other party, except that NCC may assign, in its sole discretion,
any or all of its rights and interests to any of its direct or indirect
wholly-owned subsidiaries. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
9.04 WAIVER. Any party hereto may, by written notice to the other
parties hereto, (a) extend the time for the performance of any of the
obligations or other actions of the other parties under this Agreement; (b)
waive any inaccuracies in the representations or warranties of the other parties
contained in this Agreement or in any document delivered pursuant to this
Agreement; (c) waive compliance with any of the conditions or covenants of the
other parties contained in this Agreement; or (d) waive or modify performance of
any of the obligations of the other parties under this Agreement. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any of the representations, warranties, covenants, conditions or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
<PAGE> 114
79
9.05 ENTIRE AGREEMENT. Except as set forth in contemporaneous
written instruments signed by the parties hereto, this Agreement, together with
the NCC Disclosure Letter, the Buckeye Disclosure Letter and the exhibits to
this Agreement which are hereby incorporated into this Agreement by reference,
supersedes any other agreement, whether written or oral, that may have been made
or entered into by NCC and Buckeye (or by any officer or officers of such
parties) relating to the matters contemplated hereby, and constitutes the entire
agreement by the parties.
9.06 AMENDMENTS, SUPPLEMENTS, ETC. (a) Subject to the provisions of
the GCL and the ORC, at any time before or after the approval of the Agreement
by the shareholders of Buckeye, this Agreement may be amended or supplemented by
additional agreements, articles or certificates, as may be determined by the
parties to be necessary, appropriate or desirable to further the purposes of
this Agreement, to clarify the intention of the parties, or to add to or to
modify the covenants, terms or conditions hereof or thereof. The parties hereto
shall make such technical changes to this Agreement, not inconsistent with the
purpose hereof as may be required to effect or facilitate any governmental
approval or acceptance of the Merger or of this Agreement, or to effect or
facilitate any filing or recording required for the consummation of any of the
transactions contemplated hereby. This Agreement may not be amended except by an
instrument in writing signed by each of the parties.
<PAGE> 115
80
(b) In the event that any governmental agency requests or
requires that the transactions contemplated herein be modified in any respect as
a condition of providing a necessary regulatory approval or favorable ruling,
Buckeye and NCC shall cooperate in, and take all reasonable steps necessary for,
such restructuring, provided that such restructuring is not materially adverse
to either Buckeye or to NCC.
9.07 DELEGATION. To the extent permitted by law and the
organizational documents of the respective parties hereto, the powers of the
Board of Directors of any party under and with respect to this Agreement may be
delegated by such Board of Directors to the Executive Committee of such Board or
by such Board (or by the Executive Committee to the extent any matter has been
delegated to such Committee by the Board) to any officer or officers of such
party, and any notices, consents or other actions referred to in this Agreement
to be given or taken by any party may be given or taken on its behalf by any
officer so authorized, and the other parties hereto may rely thereon.
9.08 LIMITATIONS ON RIGHTS OF THE PARTIES. Except for the
provisions of Section 5.02(e) of this Agreement, nothing expressed or implied in
this Agreement is intended or shall be construed to confer upon or give any
person, firm or corporation other than the parties, their permitted successors
or assigns, and their respective shareholders any rights or remedies under or by
reason of this Agreement or any transaction contemplated hereby.
<PAGE> 116
81
9.09 CAPTIONS; COUNTERPARTS. The captions in this Agreement are
for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
9.10 GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, NCC and Buckeye have caused this Agreement to be
duly executed and attested as of the date first above written.
BUCKEYE FINANCIAL CORPORATION NATIONAL CITY CORPORATION
By /s/ Michael J. McMennamin By /s/ Gregory L. Tunis
----------------------------------- -------------------------------------
Name: Name: Gregory L. Tunis
Title: Chairman Title: Senior Vice President
Attest: Attest:
/s/ Robert W. Strouse /s/ Robert T. Williams
------------------------------- ----------------------------------
Name: Name: Robert T. Williams
Title: Secretary Title: Senior Vice President and
Secretary
<PAGE> 117
82
INDEX TO DEFINITIONS
--------------------
Location of
Abbreviations Definitions
------------- -----------
1933 Act Section 3.08
1934 Act Section 3.08
Acquisition Transactions Section 5.03(c)
Affiliated Organizations Section 4.18
Agreement Recital
BHCA Recital
Benefit Plans Section 4.18
Buckeye Recital
Buckeye Common Section 2.03(a)
Buckeye Disclosure Letter Section 4.01(b)
Buckeye Financial Statements Section 4.05
Buckeye Reports Section 4.10
Buckeye Subsidiaries Section 4.01(b)
Buckeye Subsidiary Section 4.01(b)
Buckeye Unaudited Year-End
Financial Statements Section 4.05(b)
COBRA Section 4.18
Closing Section 6.01
Closing Date Section 6.01
Code Section 4.18
Constituent Corporations Section 1.01
Disclosed Loans Section 4.19(b)
<PAGE> 118
83
Dissenting Shares Section 2.03(a)
Effective Time Section 1.02
ESOP Section 4.18
Environmental Laws Section 4.22(b)
ERISA Section 4.18
Exchange Agent Section 2.04
FDIC Section 4.01(c)
FRB Section 3.03
GCL Section 1.01
HOLA Recital
HSR Filings Section 3.03
Hazardous Material Section 4.22(a)
IRS Section 4.09
Merger Section 1.01
NCC Recital
NCC Common Section 2.02
NCC Disclosure Letter Section 3.01(b)
NCC Financial Statements Section 3.05
NCC Preferred Section 3.04(a)
NCC Reports Section 3.08
NCC Subsidiaries Section 3.01(b)
NCC Subsidiary Section 3.01(b)
NYSE Section 2.05
OCC Section 3.03
ORC Section 1.01
OTS Section 3.03
Pension Plans Section 4.18
<PAGE> 119
84
Person Section 4.22(a)
Property Section 4.22(a)
Proxy Statement Section 5.01(c)
Registration Statement Section 5.01(c)
SAIF Section 4.01(c)
SEC Section 3.08
Securities Laws Section 3.08
Surviving Corporation Section 1.01
Thrift Section 4.01(c)
Welfare Plans Section 4.18
<PAGE> 120
AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
------------------
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of October 23,
1990 (the "Amendment"), by and between National City Corporation, a Delaware
corporation and registered bankholding company ("NCC"), and Buckeye Financial
Corporation, an Ohio corporation and registered savings and loan holding
company ("Buckeye");
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, NCC and Buckeye have entered into an Agreement and Plan of
Merger dated as of March 1, 1990 (the "Agreement"); and
WHEREAS, NCC and Buckeye desire to amend the Agreement pursuant to
Section 9.06 of the Agreement;
NOW, THEREFORE, in consideration of the mutual agreement hereinafter
contained, NCC and Buckeye agree as follows:
1. Section 8.01(b) (ii) of the Agreement is hereby amended by
deleting the phrase "December 31, 1990" and inserting therefor the phrase
"February 28, 1991."
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Amendment to be duly executed and attested thereto as of the date first above
written.
BUCKEYE FINANCIAL CORPORATION NATIONAL CITY CORPORATION
By /s/ Michael H. Thomas By /s/ David A. Daberko
---------------------------------- -----------------------------------
Name: Michael H. Thomas Name: David A. Daberko
Title: Chairman Title: Deputy Chairman
Attest: /s/ Robert W. Strouse Attest: /s/ Robert T. Williams
------------------------------- --------------------------------
Name: Robert W. Strouse Name: Robert T. Williams
Title: Secretary Title: General Counsel & Secretary
<PAGE> 121
CERTIFICATE OF
THE CHAIRMAN OF THE BOARD
AND SECRETARY OF
BUCKEYE FINANCIAL CORPORATION
-----------------------------
The undersigned, Michael H. Thomas, Chairman of the Board, and Robert
W. Strouse, Secretary, of Buckeye Financial Corporation, an Ohio corporation
("Buckeye"), do hereby certify that:
1. The Agreement and Plan of Merger dated as of March 1, 1990 and
amended on October 23, 1990 (the "Agreement and Plan of Merger"), by and between
Buckeye and National City Corporation, a Delaware corporation, to which this
certificate is attached, was duly approved by the Board of Directors of Buckeye
in accordance with Section 1701.79(D) of the Ohio Revised Code at a meeting duly
called and held on February 19, 1990, at which a quorum was present and acting
throughout.
2. The Agreement and Plan of Merger was submitted to and adopted
by the vote of the holders of two-thirds of the outstanding voting shares of
Buckeye in accordance with Section 1701.79(D) of the Ohio Revised Code at its
annual meeting duly called and held on December 5, 1990, at which a quorum was
present and acting throughout.
IN WITNESS WHEREOF, Michael H. Thomas, Chairman of the Board, and
Robert W. Strouse, Secretary, of Buckeye, acting for and on behalf of Buckeye,
have hereunto subscribed their names this 24th day of January, 1991.
/s/ Michael H. Thomas
----------------------------------
Michael H. Thomas,
Chairman of the Board
/s/ Robert W. Strouse
----------------------------------
Robert W. Strouse,
Secretary
<PAGE> 122
CERTIFICATE OF
CHAIRMAN OF THE BOARD
AND SECRETARY OF
NATIONAL CITY CORPORATION
-------------------------
The undersigned, Edward B. Brandon, Chairman of the Board, and Robert
T. Williams, Secretary, of National City Corporation, a Delaware corporation,
("NCC"), do hereby certify as follows:
1. The Agreement and Plan of Merger dated as of March 1, 1990 and
amended on October 23, 1990, (the "Agreement and Plan of Merger"), by and
between NCC and Buckeye Financial Corporation,an Ohio corporation, to which
this Certificate is attached, was adopted and approved by the Board of
Directors of NCC in accordance with Sections 252(c) and 251(f) of the General
Corporation Law of the State of Delaware at a meeting duly called and held on
April 23, 1990, at which a quorum was present and acting throughout.
2. The Agreement and Plan of Merger was adopted and approved by
the Board of Directors of NCC pursuant to Sections 252(c) and 251(f) of the
General Corporation Law of the State of Delaware; the Agreement and Plan of
Merger was not required to be and was not submitted to the stockholders of NCC.
As of the date of this Certificate, the outstanding shares of NCC were such as
to render applicable subsection 251(f) of the General Corporation Law of the
State of Delaware.
<PAGE> 123
2
IN WITNESS WHEREOF, Edward B. Brandon, Chairman of the Board, and
Robert T. Williams, Secretary, of NCC, acting for and on behalf of NCC, have
hereunto subscribed their names this 24th day of January, 1991.
/s/ Edward B. Brandon
-------------------------------
Edward B. Brandon,
Chairman of the Board
/s/ Robert T. Williams
-------------------------------
Robert T. Williams,
Secretary
5257m
<PAGE> 124
PAGE 1
State of DeLaware
Office of the Secretary of State
---------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE
EIGHTEENTH DAY OF APRIL, A.D. 1991, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
[SEAL OF THE -----------------------------------
SECRETARY'S OFFICE, Edward J. Freel, Secretary of State
STATE OF DELAWARE]
AUTHENTICATION:
O784371 8100 8779755
971405379
DATE:
11-26-97
<PAGE> 125
CERTIFICATE OF DESIGNATION
RIGHTS AND PREFERENCES
OF THE
8% CUMULATIVE CONVERTIBLE PREFERRED STOCK
WITHOUT PAR VALUE
OF
NATIONAL CITY CORPORATION
------------------------------------------
Pursuant to Section 151(g) of the
General Corporation Law
of the State of Delaware
------------------------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Restated Certificate of Incorporation of the Corporation, as
amended, authorizes the issuance of 5,000,000 shares of preferred stock, without
par value, of the Corporation ("Preferred Stock") in one or more series, and
authorizes the Board of Directors to fix by resolution or resolutions the
designation of each series of Preferred Stock and the powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof.
SECOND: The Board of Directors of the Corporation, at a meeting duly
held and called on March 11, 1991, authorized the issuance, the public offering
and the sale of shares of Preferred Stock of the Corporation and authorized the
Pricing Committee of the Board of Directors to approve any underwriting
agreement, placement agreement, agency or distribution agreement or similar
agreement for the distribution of the Preferred Stock; the term of any series of
Preferred Stock; the price at which, the title, date, form and number of shares
of which, the Preferred Stock shall be offered to the public; the underwriting
discount, agency fees or similar selling costs; the period or periods within
which, and the price at which, the
<PAGE> 126
Preferred Stock may be redeemed by the Corporation, if any; to approve or
ratify the Registration Statement for the Preferred Stock and all amendments
and supplements thereto; to fix the terms at which the Preferred Stock can be
converted into the common stock, par value $4.00 per share, of the Corporation
("Common Stock") and to reserve the number of shares of Common Stock as may be
issuable upon the conversion of any such series of Preferred Stock; to
establish such other terms and make such other changes in the terms of the
proposed issues of Preferred Stock; and to approve all the forms of instruments
relating thereto, and any changes therein, not inconsistent with the foregoing,
as such Committee shall deem to be desirable and in the best interests of the
Corporation.
THIRD: The Pricing Committee of the Board of Directors of the
Corporation, by unanimous written consent in lieu of a meeting dated April 11,
1991, did duly adopt the following resolutions providing for the designation,
powers, preferences and rights, and the qualifications, limitations and/or
restrictions thereof, of the 8% Cumulative Convertible Preferred Stock, without
par value, of the Corporation.
NOW, THEREFORE, BE IT RESOLVED, that the Pricing Committee of the Board
of Directors, pursuant to authority vested in it by the Board of Directors and
in accordance with the provisions of the Restated Certificate of Incorporation,
as amended, of the Corporation, hereby approves the issuance of a series of
Preferred Stock, without par value, of the Corporation ("Preferred Stock") and
hereby fixes the designation of such series and the powers, preferences, rights,
and qualifications, limitations and restrictions thereof in addition to those
set forth in said Restated Certificate of Incorporation, as amended, as follows:
1. DESIGNATION. The designation of the series of Preferred Stock
created by this resolution shall be 8% Cumulative Convertible Preferred Stock,
without par value, of National City Corporation (the "Corporation") (hereinafter
referred to as "New Preferred Stock"), and the number of shares constituting
such series shall be 800,000, which number may be increased (but not above the
total number of shares of Preferred Stock of the Corporation) or decreased (but
not below the number of shares then outstanding) from time to time by the Board
of Directors. The New Preferred Stock shall rank prior to the common stock of
the Corporation, par value $4.00 per share ("Common Stock"), with respect to
the payment of dividends and the distribution of assets.
2. DIVIDEND RIGHTS.
(a) The holders of shares of New Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of
funds legally available therefor, cash
-2-
<PAGE> 127
dividends, accruing from April 19, 1991, at the annual rate of 8% per annum,
and no more, payable, when and as declared by the Board of Directors, quarterly
on February 1, May 1, August 1, and November l of each year (each quarterly
period ending on any such date being hereinafter referred to as a "dividend
period"), commencing August 1, 1991, at such annual rate. Each dividend will be
payable to holders of record as they appear on the stock books of the
Corporation on such record dates, not exceeding 45 days preceding the payment
dates thereof, as shall be fixed by the Board of Directors of the Corporation.
The date of initial issuance of shares of New Preferred Stock is hereinafter
referred to as the "Issue Date". Dividends payable on the New Preferred Stock
(i) for any period other than a full dividend period, shall be computed on the
basis of a 360-day year consisting of twelve 30-day months and (ii) for each
full dividend period, shall be computed by dividing the annual dividend rate by
four.
(b) Dividends on shares of New Preferred Stock shall be
cumulative from the Issue Date whether or not there shall be funds legally
available for the payment thereof. If there shall be outstanding shares of any
other series of Preferred Stock ranking junior to or on a parity with the New
Preferred Stock as to dividends, no dividends shall be declared or paid or set
apart for payment on any such other series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on the New
Preferred Stock for all dividend periods terminating on or prior to the date of
payment of such dividends. If dividends on the New Preferred Stock and on any
other series of Preferred Stock ranking on a parity as to dividends with the New
Preferred Stock are in arrears, in making any dividend payment on account of
such arrears, the Corporation shall make payments ratably upon all outstanding
shares of the New Preferred Stock and shares of such other series of Preferred
Stock in proportion to the respective amounts of dividends in arrears on the New
Preferred Stock and on such other series of Preferred Stock to the date of such
dividend payment. Holders of shares of the New Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full cumulative dividends on such shares. 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.
(c) Unless full cumulative dividends on all outstanding shares
of the New Preferred Stock shall have been paid or declared and set aside for
payment for all past dividend periods, no dividend (other than a dividend in
Common Stock or in any other stock ranking junior to the New Preferred
-3-
<PAGE> 128
Stock as to dividends and the distribution of assets upon liquidation,
dissolution or winding up) shall be declared upon the Common Stock or upon any
other stock ranking junior to the New Preferred Stock as to dividends and the
distribution of assets upon liquidation, dissolution or winding up, nor shall
any Common Stock or any other stock of the Corporation ranking junior to or on a
parity with the New Preferred Stock as to dividends or upon the distribution of
assets upon liquidation, dissolution or winding up be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by the Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the New Preferred Stock as to dividends and
the distribution of assets upon liquidation, dissolution or winding up).
3. LIQUIDATION PREFERENCES.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary, the holders
of New Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to stockholders an amount equal to $250
per share plus an amount equal to any accrued and unpaid dividends thereon to
and including the date of such distribution, and no more, before any
distribution shall be made to the holders of Common Stock or any other class of
stock of the Corporation ranking junior to the New Preferred Stock as to the
distribution of assets. After payment of such liquidating distributions, the
holders of shares of New Preferred Stock will not be entitled to any further
participation in any distribution of assets by the Corporation.
(b) In the event the assets of the Corporation available for
distribution to stockholders upon any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the New
Preferred Stock and any other shares of Preferred Stock ranking on a parity with
the New Preferred Stock as to the distribution of assets, the holders of New
Preferred Stock and the holders of such other Preferred Stock shall share
ratably in any distribution of assets of the Corporation in proportion to the
full respective preferential amounts to which they are entitled.
(c) The merger or consolidation of the Corporation into or
with any other corporation, the merger or consolidation of any other corporation
into or with the Corporation or the sale of the assets of the Corporation
substantially as an entirety shall not be deemed a liquidation, dissolution or
winding up of the affairs of the Corporation within the meaning of this Section
3.
-4-
<PAGE> 129
4. REDEMPTION.
(a) The Corporation, at its option, may redeem any or all
shares of New Preferred Stock, at any time or from time to time, on or after
May 1, 1996, at a redemption price of $260 per share during the period from
May 1, 1996 through but not including May 1, 1997, and thereafter at the
redemption prices set forth below during the 12-month period beginning on May l
of the years shown below, plus in each case an amount equal to accrued and
unpaid dividends thereon to and including the date of redemption (the
"Redemption Price"):
Year Redemption Price Per Share
---- --------------------------
1997 $258
1998 $256
1999 $254
2000 $252
2001 and thereafter $250
(b) If less than all the outstanding shares of New Preferred
Stock are to be redeemed, the shares to be redeemed shall be selected pro rata
as nearly as practicable or by lot, or by such other method as the Board of
Directors may determine to be fair and appropriate.
(c) Notice of any redemption shall be given by first class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the date fixed for redemption to the holders of record of the shares of New
Preferred Stock to be redeemed, at their respective addresses appearing on the
books of the Corporation. Notice so mailed shall be conclusively presumed to
have been duly given whether or not actually received. Such notice shall state:
(i) the date fixed for redemption; (ii) the Redemption Price; (iii) that the
holder has the right to convert such shares into Common Stock until the close of
business on the tenth day preceding the redemption date; the then-effective
conversion price and the place where certificates for such shares may be
surrendered for conversion; (iv) the number of shares of New Preferred Stock to
be redeemed and if less than all the shares held by such holder are to be
redeemed, the number of such shares to be so redeemed from such holder; (v) the
place where certificates for such shares are to be surrendered for payment of
the Redemption Price; and (vi) that after such date fixed for redemption the
shares to be redeemed shall not accrue dividends. If such notice is mailed as
aforesaid, and if on or before the date fixed for redemption funds sufficient to
redeem the shares called for redemption are set aside by the Corporation in
trust for the account of the holders of the shares to be redeemed,
notwithstanding the fact that any certificate for shares called for redemption
shall not have been surrendered for cancellation, on and after the redemption
date the shares represented thereby so called for redemption shall be deemed to
be no longer outstanding,
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dividends thereon shall cease to accrue, and all rights of the holders of such
shares as stockholders of the Corporation shall cease, except the right to
receive the Redemption Price, without interest, upon surrender of the
certificate representing such shares. Upon surrender in accordance with the
aforesaid notice of the certificate for any shares so redeemed (duly endorsed or
accompanied by appropriate instruments of transfer, if so required by the
Corporation in such notice), the holders of record of such shares shall be
entitled to receive the Redemption Price, without interest. In case fewer than
all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(d) At the option of the Corporation, if notice of redemption
is mailed as aforesaid, and if prior to the date fixed for redemption funds
sufficient to pay in full the Redemption Price are deposited in trust, for the
account of the holders of the shares to be redeemed, with a bank or trust
company named in such notice doing business in the Borough of Manhattan, The
City of New York, State of New York or the City of Cleveland, State of Ohio and
having capital surplus and undivided profits of at least $50 million (which bank
or trust company also may be the transfer agent and/or paying agent for the New
Preferred Stock) notwithstanding the fact that any certificate(s) for shares
called for redemption shall not have been surrendered for cancellation, on and
after such date of deposit the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, and all rights of the
holders of such shares as shareholders of the Corporation shall cease, except
the right of the holders thereof to convert such shares in accordance with the
provisions of Section 5 at any time prior to the close of business on the tenth
day preceding the redemption date and the right of the holders thereof to
receive out of the funds so deposited in trust the Redemption Price, without
interest, upon surrender of the certificate(s) representing such shares. Any
funds so deposited with such bank or trust company in respect of shares of New
Preferred Stock converted before the close of business on the tenth day
preceding the redemption date shall be returned to the Corporation upon such
conversion. Any funds so deposited with such bank or trust company which shall
remain unclaimed by the holders of shares called for redemption at the end of
two years after the redemption date shall be repaid to the Corporation, on
demand, and thereafter the holder of any such shares shall look only to the
Corporation for the payment, without interest, of the Redemption Price.
(e) Any provision of this Section 4 to the contrary
notwithstanding, in the event that any quarterly dividend payable on the New
Preferred Stock shall be in arrears and until all such dividends in arrears
shall have been paid or declared and set apart for payment, the Corporation
shall not
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redeem any shares of New Preferred Stock unless all outstanding shares of New
Preferred Stock are simultaneously redeemed and shall not purchase or otherwise
acquire any shares of New Preferred Stock except in accordance with a purchase
or exchange offer made on the same terms to all holders of record of New
Preferred Stock for the purchase of all outstanding shares thereof.
5. CONVERSION RIGHTS. The holders of shares of New Preferred
Stock shall have the right, at their option, to convert such shares into shares
of Common Stock on the following terms and conditions:
(a) Shares of New Preferred Stock shall be convertible at any
time into fully paid and nonassessable shares of Common Stock at a conversion
price of $41.95 per share of Common Stock (the "Conversion Price"). The
Conversion Price shall be subject to adjustment from time to time as
hereinafter provided. For purposes of such conversion, each share of New
Preferred Stock will be valued at $250. No payment or adjustment shall be made
on account of any accrued and unpaid dividends on shares of New Preferred Stock
surrendered for conversion prior to the record date for the determination of
stockholders entitled to such dividends or on account of any dividends on the
shares of Common Stock issued upon such conversion subsequent to the record
date for the determination of stockholders entitled to such dividends. If any
shares of New Preferred Stock shall be called for redemption, the right to
convert the shares designated for redemption shall terminate at the close of
business on the tenth day preceding the date fixed for redemption unless
default is made in the payment of the Redemption Price. In the event of default
in the payment of the Redemption Price, the right to convert the shares
designated for redemption shall terminate at the close of business on the
business day immediately preceding the date that such default is cured.
(b) In order to convert shares of New Preferred Stock into Common
Stock, the holder thereof shall surrender the certificates therefor, duly
endorsed if the Corporation shall so require, or accompanied by appropriate
instruments of transfer satisfactory to the Corporation, at the office of the
transfer agent for the New Preferred Stock, or at such other office as may be
designated by the Corporation, together with written notice that such holder
irrevocably elects to convert such shares or any fraction of a share of New
Preferred Stock having a denominator of five, each such fractional interest,
measured in one-fifths, being valued for purposes of conversion at $50;
references in this Section 5 to the conversion of any share of New Preferred
Stock shall also apply, MUTATIS MUTANDIS, to such fractional interests. Such
notice shall also state the name and address in which such holder wishes the
certificate for the shares of Common Stock issuable upon conversion to be
issued. As soon as practicable after receipt of the certificates representing
the shares of New Preferred
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Stock to be converted and the notice of election to convert the same, the
Corporation shall issue and deliver at said office a certificate for the number
of whole shares of Common Stock issuable upon conversion of the shares of New
Preferred Stock surrendered for conversion, together with a cash payment in
lieu of any fraction of a share, as hereinafter provided, to the person
entitled to receive the same. If more than one stock certificate for New
Preferred Stock shall be surrendered for conversion at one time by the same
holder, the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares
represented by all the certificates so surrendered. Shares of New Preferred
Stock shall be deemed to have been converted immediately prior to the close of
business on the date such shares are surrendered for conversion and notice of
election to convert the same is received by the Corporation in accordance with
the foregoing provision, and the person entitled to receive the Common Stock
issuable upon such conversion shall be deemed for all purposes as the record
holder of such Common Stock as of such date.
(c) In the case of any share of New Preferred Stock which is
converted after any record date with respect to the payment of a dividend on
the New Preferred Stock and on or prior to the date on which such dividend is
payable by the Corporation (the "Dividend Due Date"), the dividend due on such
Dividend Due Date shall be payable on such Dividend Due Date to the holder of
record of such shares as of such preceding record date notwithstanding such
conversion. Shares of New Preferred Stock surrendered for conversion during the
period from the close of business on any record date with respect to the
payment of a dividend on the New Preferred Stock next preceding any Dividend
Due Date to the opening of business on such Dividend Due Date shall (except in
the case of shares of New Preferred Stock which have been called for redemption
on a redemption date within such period) be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Corporation of an amount
equal to the dividend payable on such Dividend Due Date on the shares of New
Preferred Stock being surrendered for conversion. The dividend with respect to
a share of New Preferred Stock called for redemption on a redemption date
during the period from the close of business on any record date with respect to
the payment of a dividend on the New Preferred Stock next preceding any
Dividend Due Date to the opening of business on such Dividend Due Date shall be
payable on such Dividend Due Date to the holder of record of such share on such
dividend record date, notwithstanding the conversion of such share of New
Preferred Stock after such record date and prior to such Dividend Due Date, and
the holder converting such share of New Preferred Stock need not include a
payment of such dividend amount upon surrender of such share of New Preferred
Stock for conversion. Except as provided in this subsection, no payment or
adjustment shall be made upon any conversion on account of any dividends
accrued on shares of New Preferred Stock surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon conversion.
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(d) No fractional shares of Common Stock shall be issued upon
conversion of any shares of New Preferred Stock. If more than one share of New
Preferred Stock is surrendered at one time by the same holder, the number of
full shares issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares so surrendered. If the conversion of any shares
of New Preferred Stock results in a fractional share of Common Stock, the
Corporation shall pay cash in lieu thereof in an amount equal to such fraction
multiplied by the closing price, determined as provided in subsection (vi) of
Section 5(e) below, on the date on which the shares of New Preferred Stock were
duly surrendered for conversion, or if such date is not a trading date, on the
next succeeding trading date.
(e) The Conversion Price shall be adjusted from time to time
as follows:
(i) In case the Corporation shall pay or make a dividend
or other distribution on shares of Common Stock in Common Stock, the
Conversion Price in effect at the opening of business on the date
following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business
on the day following the date fixed for such determination. For
purposes of this subsection, the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of
the Corporation but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Corporation will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Corporation.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less than
the current market price per share (determined as provided in
subsection (vi) below) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or
warrants (other than pursuant to a dividend reinvestment plan), the
Conversion Price in effect at the opening of business
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on the day following the date fixed for such determination shall be
reduced by multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of
this subsection (ii), the number of shares of Common Stock at anytime
outstanding shall not include shares held in the treasury of the
Corporation but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
The Corporation will not issue any rights or warrants in respect of
shares of Common Stock held in the treasury of the Corporation.
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding shares
of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(iv) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its Common Stock evidences of
its indebtedness or assets (including securities, but excluding any
rights or warrants referred to in subsection (ii) above, any dividend
or distribution paid in cash out of the retained earnings of the
Corporation and any dividend or distribution referred to in subsection
(i) above), the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying
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<PAGE> 135
the Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the
numerator shall be the current market price per share (determined as
provided in subsection (vi) below) of the Common Stock on the date
fixed for such determination less the then fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and shall be described in a statement filed with the
transfer agent for the New Preferred Stock) of the portion of the
evidences of indebtedness or assets so distributed applicable to one
share of Common Stock and the denominator shall be such current market
price per share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled
to receive such distribution.
(v) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which Section 5(g)
below applies) shall be deemed to involve (A) a distribution of such
securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within
the meaning of subsection (iv) above), and (B) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision became effective" or "the day upon
which such combination becomes effective" as the case may be, and "the
day upon which such subdivision or combination becomes effective"
within the meaning of subsection (iii) above).
(vi) For the purpose of any computation under subsections
(ii) and (iv) above, the current market price per share of Common Stock
on any day shall be deemed to be the average of the daily closing
prices for the 30 consecutive trading days commencing 45 trading days
before the day in question. The closing price for each day shall be the
reported last
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<PAGE> 136
sale price regular way or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asking prices
regular way, in either case on the New York Stock Exchange or, if the
Common Stock is no longer listed or admitted to trading on such
Exchange, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations
National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on
such National Market System, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose.
(vii) No adjustment in the Conversion Price for the New
Preferred Shares shall be required unless such adjustment would require
an increase or decrease of at least 1% in such price; PROVIDED,
HOWEVER, that any adjustments which by reason of this subsection (vii)
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Section shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(f) Whenever the Conversion Price shall be adjusted as herein
provided (i) the Corporation shall forthwith make available at the office of the
transfer agent for the New Preferred Stock a statement describing in reasonable
detail the adjustment, the facts requiring such adjustment and the method of
calculation used; and (ii) the Corporation shall cause to be mailed by first
class mail, postage prepaid, as soon as practicable to each holder of record of
shares of New Preferred Stock a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion Price.
(g) In the event of any consolidation of the Corporation with or
merger of the Corporation into any other corporation (other than a merger in
which the Corporation is the surviving corporation) or a sale, lease or
conveyance of the assets of the Corporation as an entirety or substantially as
an entirety, or any statutory exchange of securities with another corporation,
the holder of each share of New Preferred Stock shall have the right, after such
consolidation, merger, sale or exchange to convert such share into the number
and kind of shares of stock or other securities and the amount and kind of
property receivable upon such consolidation, merger, sale or exchange by a
holder of the number of shares of Common Stock issuable upon conversion of such
shares of New Preferred Stock
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<PAGE> 137
immediately prior to such consolidation, merger or sale. Provision shall be
made for adjustments in the Conversion Price which shall be as nearly equivalent
as may be practicable to the adjustments provided for in Section 5(e). The
provisions of this Section 5(g) shall similarly apply to successive
consolidations, mergers, sales or exchanges.
(h) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares of
New Preferred Stock, but the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the issuance of
shares of Common Stock in the name other than that in which the shares of New
Preferred Stock so converted are registered, and the Corporation shall not be
required to issue or deliver any such shares unless and until the person
requesting such issuance shall have paid to the Corporation the amount of any
such taxes, or shall have established to the satisfaction of the Corporation
that such taxes have been paid.
(i) The Corporation may make such reductions in the Conversion
Price, in addition to those required by subsections (i) through (iv) of Section
5(e) above, as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights shall not be
taxable to the recipients.
(j) The Corporation shall at all times reserve and keep available
out of its authorized but unissued Common Stock the full number of shares of
Common Stock issuable upon the conversion of all shares of New Preferred Stock
then outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash out of
retained earnings; or
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(iii) any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation, consolidation
or merger of the Corporation with or into another corporation (other
than a merger in which the Corporation is the surviving corporation),
or sale, lease or conveyance of the assets of the Corporation as an
entirety or substantially as an entirety to another corporation occurs;
or
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<PAGE> 138
(iv) the voluntary or involuntary dissolution, liquidation
or winding up of the Corporation occurs;
the Corporation shall cause to be mailed to the holders of record of New
Preferred Stock at least 20 days prior to the applicable date hereinafter
specified a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined or (y) the date on
which such reorganization, reclassification, consolidation, merger, sale, lease,
conveyance, dissolution, liquidation or winding up is expected to take place,
and the date, if any is to be fixed, as of which holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, lease conveyance, dissolution, liquidation or
winding up. Failure to give such notice, or any defect therein, shall not affect
the legality or validity of such dividend, distribution, reorganization,
reclassification, consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding up.
6. VOTING RIGHTS. Other than as required by applicable law, the
New Preferred Stock shall not have any voting powers either general or special,
except that:
(a) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or consent
of the holders of at least 66-2/3% of all of the shares of the New Preferred
Stock, and any one or more other series of Preferred Stock of the Corporation
similarly affected, at the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called for the purpose at which the
holders of shares of the New Preferred Stock and any such other series of
Preferred Stock shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of any
of the provisions of the Restated Certificate of Incorporation, as amended, or
of any amendment or supplement thereto (including any Certificate of
Designation or any similar document relating to any series of Preferred Stock)
of the Corporation, which would adversely affect the preferences, rights,
powers or privileges, qualifications, limitations and restrictions of the New
Preferred Stock and any such other series of preferred Stock.
(b) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or consent
of the holders of at least 66-2/3% of all of the shares of the New Preferred
Stock and any other series of Preferred Stock of the Corporation ranking on
parity with shares of the New Preferred Stock, either as to dividends or the
distribution of assets upon liquidation, dissolution or
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<PAGE> 139
winding up, at the time outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of
shares of the New Preferred Stock and any such other series of Preferred Stock
of the Corporation shall vote together as a single class without regard to
series, shall be necessary to create, authorize or issue, or reclassify any
authorized stock of the Corporation into, or create, authorize or issue any
obligation or security convertible into or evidencing a right to purchase, any
shares of any class of stock of the Corporation ranking prior to the New
Preferred Stock and any other series of Preferred Stock of the Corporation
ranking on a parity with the New Preferred Stock as to dividends or upon the
distribution of assets upon liquidation, dissolution or winding up. Subject to
the foregoing, the Corporation's Restated Certificate of Incorporation, as
amended, may be amended to increase the number of authorized shares of
Preferred Stock without the vote of the holders of Preferred Stock, including
the New Preferred Stock.
(c) Whenever, at any time or times, dividends payable on the
shares of New Preferred Stock shall be in arrears in an amount equal to at least
six full quarterly dividends on shares of the New Preferred Stock at the time
outstanding, the holders of the outstanding shares of New Preferred Stock shall
have the exclusive right, voting separately as a class together with holders of
shares of any one or more other series of Preferred Stock ranking on a parity
with the New Preferred Stock either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable, to elect two directors of the
Corporation at the Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such directors, each
holder of New Preferred Stock shall be entitled to one vote for each share held
(the holders of shares of any other series of Preferred Stock ranking on such a
parity being entitled to such number of votes, if any, for each share of stock
held as may be granted to them). Upon the vesting of such right of the holders
of New Preferred Stock, the maximum authorized number of members of the Board of
Directors shall automatically be increased by two and the two vacancies so
created shall be filled by vote of the holders of the outstanding shares of New
Preferred Stock (either alone or together with the holders of shares of any one
or more other series of Preferred Stock ranking on such a parity) as hereinafter
set forth. The right of the holders of New Preferred Stock, voting separately as
a class to elect (either alone or together with the holders of shares of any one
or more other series of Preferred Stock ranking on such a parity) members of the
Board of Directors of the Corporation as aforesaid shall continue until such
time as all dividends accumulated on the New Preferred Stock shall have been
paid in full or declared and set apart for payment, at which time such right
shall terminate, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character
above mentioned.
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<PAGE> 140
(d) Each director elected by the holders of shares of New
preferred Stock shall continue to serve as such director for the full term for
which he shall have been elected, notwithstanding that prior to the end of such
term all dividends on the New Preferred Stock shall have been paid in full. If
the office of any director elected by the holders of New Preferred Stock voting
as a class becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, the remaining director
elected by the holders of New Preferred Stock voting as a class may choose a
successor who shall hold office for the unexpired term in respect of which such
vacancy occurred. Whenever the term of office of the directors elected by the
holders and the special voting powers vested in the holders of New Preferred
Stock as provided in this subsection (d) shall have expired, the number of
directors shall be such number as may be provided for in the Restated
Certificate of Incorporation, as amended, or the First Restatement of the
By-Laws, as amended, irrespective of any increase made pursuant to the
provisions of this subsection (d).
7. REACQUIRED SHARES. Shares of New Preferred Stock converted,
redeemed, or otherwise purchased or acquired by the Corporation shall be
restored to the status of authorized but unissued shares of preferred Stock
without designation as to series.
8. NO SINKING FUND. Shares of New Preferred Stock are not
subject to the operation of a sinking fund or other obligation of the
Corporation to redeem or retire the New Preferred Stock.
FURTHER RESOLVED, that the officers of the Corporation, and each of them, are
hereby authorized, for and on behalf of and in the name of the Corporation, to
file a copy of the foregoing resolution with the Secretary of State of the
State of Delaware in accordance with the provisions of Sections 103 and 151 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, NATIONAL CITY CORPORATION, has caused this Certificate of
Designation to be signed by Edward B. Brandon, its Chairman and Robert T.
Williams, its Secretary, and its Corporate Seal to be hereunder affixed this
18th day of April, 1991.
NATIONAL CITY CORPORATION
[Seal]
By /s/ Edward B. Brandon
---------------------------------
Edward B. Brandon, Chairman
Attest: /s/ Robert T. Williams
---------------------------
Robert T. Williams, Secretary
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<PAGE> 141
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-FOURTH DAY OF APRIL, A.D. 1991, AT 4 O'CLOCK P.M.
/s/ Edward J. Freel
[SEAL OF THE -----------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
AUTHENTICATION: 8779756
DATE: 11-26-97
0784371 8100
971405379
<PAGE> 142
CERTIFICATE REGARDING ADJUSTABLE
RATE CUMULATIVE PREFERRED STOCK AND
SERIES A CONVERTIBLE PREFERRED STOCK OF
NATIONAL CITY CORPORATION
--------------------------------------
Pursuant to Section 151(g) of the
General Corporation Law
of the State of Delaware
--------------------------------------
NATIONAL CITY CORPORATION, (the "Corporation") organized and
existing under the General Corporation Law of the State of Delaware (the "GCL"),
DOES HEREBY CERTIFY that, pursuant to authority conferred upon its Board of
Directors by the Restated Certificate of Incorporation, as amended, of the
Corporation, and pursuant to the provisions of Section 151 of the GCL, the Board
of Directors of the Corporation, at a meeting duly called and held on April 22,
1991, did duly adopt the following resolutions:
SERIES A CONVERTIBLE PREFERRED STOCK
WHEREAS, the Corporation filed a Certificate of Designation
(the "Series A Convertible Preferred Stock Certificate of Description") with the
Secretary of State of Delaware on November 8, 1984 pursuant to the provisions of
Section 151 of the GCL, with respect to the rights and preferences of the series
of Preferred Stock of the Corporation designated Series A Convertible Preferred
Stock (the "Series A Convertible Preferred Stock"); and
WHEREAS, all of the 2,667,190 issued and outstanding shares of
Series A Convertible Preferred Stock were redeemed by the Corporation or were
duly converted by the holders thereof on or before March 3, 1986;
NOW, THEREFORE, BE IT RESOLVED that pursuant to the authority
granted to and vested in the Board of Directors of the Corporation in accordance
with the provisions of its Restated Certificate of Incorporation, as amended,
and pursuant to the provisions of Section 151 of the GCL, none of the authorized
shares of the Series A Convertible Preferred Stock are outstanding on the date
hereof, and none shall be issued subject to the Series A Convertible Preferred
Stock Certificate of Designation on or after the date hereof.
<PAGE> 143
2
FURTHER RESOLVED that all shares of the Series A Convertible
Preferred Stock which have been redeemed by the Corporation or converted by the
holders thereof shall be and hereby are restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation without designation as to
series until such shares are once more designated as part of a particular series
by the Board of Directors.
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK
WHEREAS, the Corporation filed a Certificate of Designation
(the "Adjustable Rate Cumulative Preferred Stock certificate of Designation")
with the Secretary of State of Delaware on November 8, 1984, pursuant to the
provisions of Section 151 of the GCL, with respect to the rights and preferences
of the series of Preferred Stock of the corporation designated Adjustable Rate
Cumulative Preferred Stock (the "Adjustable Rate Cumulative Preferred Stock");
and
WHEREAS, all of the 12,000 issued and outstanding shares of
Adjustable Rate Cumulative Preferred Stock were redeemed by the Corporation on
or before March 1, 1986;
NOW, THEREFORE, BE IT RESOLVED that pursuant to the authority
granted to and vested in the Board of Directors of the Corporation in accordance
with the provisions of its Restated Certificate of Incorporation, as amended,
and pursuant to the provisions of Section 151 of the GCL, none of the authorized
shares of the Adjustable Rate Cumulative Preferred Stock are outstanding on the
date hereof, and none shall be issued subject to the Adjustable Rate Cumulative
Preferred Stock Certificate of Designation on or after the date hereof.
FURTHER RESOLVED that all shares of the Adjustable Rate
Cumulative Preferred Stock which have been redeemed by the Corporation shall be
and hereby are restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors.
GENERAL AUTHORIZATION
RESOLVED that the officers of the Corporation are hereby
authorized and directed to file a copy of the foregoing resolutions with the
Secretary of State of the State of Delaware in accordance with the provisions of
Section 103 and 151 of the GCL.
<PAGE> 144
3
FURTHER RESOLVED that the officers of the Corporation, and any
one or more of them, are hereby authorized and empowered to execute and deliver
any and all other documents, papers or instruments and to do or cause to be done
any and all such acts and things as they may deem necessary or desirable in
order to enable the Corporation fully and promptly to carry out the purposes and
intent of the foregoing resolutions.
IN WITNESS WHEREOF, National City Corporation has caused its corporate
seal to be hereunto affixed and this Certificate to be signed by its Chairman
and its Secretary this 23rd day of April, 1991.
[SEAL] /s/ Edward B. Brandon
-----------------------------------
Edward B. Brandon, Chairman
/s/ Robert T. Williams
------------------------------
Robert T. Williams, Secretary
2323D
<PAGE> 145
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES:
"MERCHANTS NATIONAL CORPORATION", A DELAWARE CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-NINTH DAY OF
DECEMBER, A.D. 1992, AT 3 O'CLOCK P.M.
/s/ Edward J. Freel
[SEAL OF THE ----------------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
0784371 8100M AUTHENTICATION: 8779757
971405379 DATE: 11-26-97
<PAGE> 146
(1458/WJA) STATE OF DELAWARE
12/28/92 SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:00 PM 12/29/1992
732364079 - 784371
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
MERCHANTS NATIONAL CORPORATION
WITH AND INTO
NATIONAL CITY CORPORATION
Pursuant to Section 253 of the Delaware General Corporation Law (the
"DGCL"), the undersigned, being the Chairman and Secretary of National City
Corporation, a Delaware corporation, DO HEREBY CERTIFY on behalf of such
corporation that:
1. CONSTITUENT CORPORATIONS. The name and state of incorporation of
each of the constituent corporations are Merchants National
Corporation, a Delaware corporation ("MNC") and National City
Corporation, a Delaware corporation ("NCC").
2. OWNERSHIP OF MNC STOCK. NCC is the owner of one hundred percent
(100%) of the issued and outstanding common stock, par value Four and
00/100ths Dollars ($4.00) per share, of MNC, which is the only class of
stock authorized for MNC.
3. APPROVAL. The Board of Directors of NCC adopted the following
resolution at its regular Meeting duly called and held on December 14,
1992:
"RESOLVED, that Merchants National Corporation ("MCHN") a Delaware
Corporation, be merged into the Corporation.
"FURTHER RESOLVED, that the Plan of Merger by and between the
Corporation and MCHN ("Plan") in the form presented at this meeting
and incorporated herein by this reference, be and hereby is approved
with such changes or corrections as the officers of the Corporation
executing the same deem, in their sole discretion, necessary or
appropriate (such approval to be conclusively evidenced by their
execution thereof).
"FURTHER RESOLVED, that the Chairman, either Deputy Chairman, Vice
Chairman, or any Executive Vice President of the Corporation
("Authorized Officer") and each of them, be and hereby are
authorized, of and or behalf and in the name of the Corporation, to
execute and deliver, at such times as the officer(s) executing the
same deem appropriate, any other agreements, documents and other
instruments which the officer(s) executing the same may deem in
their sole discretion, necessary or appropriate in connection
therewith.
"FURTHER RESOLVED, that if in connection with the merger pursuant to
the Plan, any application, notice or other instrument must be filed
by the Corporation, any officer of the Corporation be and hereby is
authorized, for and on behalf and in the name of the Corporation, to
<PAGE> 147
file any such application or other instrument or give such notice
and to take all such action as may be required to effect the merger
and if in connection therewith any particular form of, resolution
shall be required such resolution is deemed adopted provided a copy
shall be inserted with the records of this meeting.
"FURTHER RESOLVED, that the Officers of the Corporation, and any one
or more of them, are hereby authorized and empowered to execute,
certify, deliver, file and record any and all other documents,
papers or instruments and to do or cause to be done any and all such
acts and things as they, or any one of them, may deem necessary or
desirable in order to enable the Corporation fully and promptly to
carry out the purposes and intent of the foregoing resolutions."
4. EFFECTIVE TIME. The merger of MNC with and into NCC will become
effective at the later of the following: (a) the time at which the
Certificate of Merger is filed with the Secretary of State of Delaware
and (b) 12:01 A.M., Eastern Standard Time, on January 1, 1993.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Merger on behalf of NCC as of this 23rd day of December, 1992.
NATIONAL CITY CORPORATION
By /s/ David A. Daberko
-------------------------------
David A. Daberko
Deputy Chairman
Attest:
/s/ David L. Zoeller
-------------------------------
David L. Zoeller, Secretary
<PAGE> 148
(1453/WJA)
12/15/92
PLAN OF MERGER
OF
MERCHANTS NATIONAL CORPORATION
INTO
NATIONAL CITY CORPORATION
This Plan of Merger dated as of December 21, 1992, adopted and made by
and between National City Corporation ("NCC"), a Delaware corporation, and
Merchants National Corporation ("MNC"), a Delaware corporation and a
wholly-owned subsidiary of NCC.
WHEREAS, the respective Boards of Directors of NCC and MNC deem the
merger of MNC with and into NCC, under and pursuant to the terms and conditions
herein set forth or referred to, desirable and in the best interests of the
respective corporations and their shareholders;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. THE MERGER. Subject to the terms and conditions of the Plan of
Merger, at the effective time of the merger of MNC with and into NCC
(the "Merger"), which shall be 12:01 a.m. January 1, 1993 (the
"Effective Time"), MNC shall be merged with and into NCC, pursuant to
and with the effect provided in Section 253 of the Delaware General
Corporation Law ("DGCL"). At the Effective Time, the separate corporate
existence of MNC shall cease and NCC shall continue as the surviving
corporation (the "Surviving Corporation").
2. EFFECT OF MERGER. At the Effective Time, the effect of the Merger
shall be as provided by the applicable provisions of the DGCL. Without
limiting the generality of the foregoing and subject thereto at the
Effective Time: the separate corporate existence of NCC, with all its
purposes, objects, rights, privileges, powers, certificates and
franchises, shall continue unimpaired by the merger; the title to all
real estate and other property owned by MNC and NCC shall be vested in
the Surviving Corporation without revision or impairment; the
Surviving Corporation shall have all liabilities of MNC and NCC.
including, but not limited to, MNC's (i) the Indenture dated as of
October 1, 1989 between MNC and Manufacturers Hanover Trust Company,
as Trustee, for 9 7/8% Subordinated Notes due 1999, (ii) the
Indenture dated as of April 1, 1990 between MNC and The First National
Bank of Chicago, as Trustee (Harris Trust and Savings Bank is the
Successor Trustee) for Senior Debt Securities and (iii) the promissory
notes issued by MNC in 1989 to six (6) of the former shareholders of
Commercial Bank and Trust Company, Alexandria, Indiana; a proceeding
pending against either corporation may be continued as if the Merger
did not occur or NCC may be substituted in the proceeding; and neither
the rights of the creditors nor any liens upon the property of either
<PAGE> 149
corporation shall be impaired by the Merger; and, the separate
existence of MNC shall cease.
3. ARTICLES OF INCORPORATION AND BY-LAWS. The Articles of Incorporation
and the by-laws of NCC In effect immediately prior to the Effective
Time shall be the Articles of Incorporation and the by-laws of the
Surviving Corporation, until amended in accordance with applicable law.
4. OFFICERS AND DIRECTORS. At the Effective Time, the officers and the
board of directors of NCC, serving as officers and directors
immediately prior to the Effective Time shall become the officers and
board of directors of the Surviving Corporation.
5. OWNERSHIP OF MNC STOCK. The authorized capital stock of MNC is one
hundred (100) shares of common, par value Four and 00/100ths Dollars
($4.00) per share, all of which are issued, outstanding and owned by
NCC.
6. STOCK OF THE SURVIVING CORPORATION. The authorized number and par
value of shares of all classes of capital stock of NCC immediately
prior to the Effective Time shall be the authorized number and par
value of shares of the classes of capital stock of the Surviving
Corporation from and after the Effective time. Each share of common
stock par value $4.00 per share of NCC issued and outstanding
immediately prior to the Effective Time shall continue to be an issued
and outstanding share of common stock par value $4.00 per share of the
Surviving Corporation from and after the Effective Time. At the
Effective Time, the stock of MNC shall be cancelled.
7. FURTHER ASSURANCES. If at any time NCC shall determine that
additional conveyances, documents or other action are necessary to
carry out the provisions of the Plan of Merger, the officers and
directors of NCC, as of the effective date of this merger, shall
execute such conveyances or documents, or take such action as they deem
necessary and proper to effectuate the Plan of Merger.
8. FILING. A copy of this Agreement shall be filed in the office of the
Secretary of State of the State of Delaware. Duplicate copies of this
Agreement, certified by the appropriate authorities, if necessary or
desirable, shall be filed or recorded in such other offices or places
as shall be required by the DGCL.
9. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of
which counterparts collectively shall constitute one instrument
representing the agreement between the parties hereto.
10. THIRD PARTIES. Except as otherwise provided in this Agreement,
nothing herein expressed or implied is intended or shall be construed
to confer upon or give any person, firm or corporation, other than MNC,
NCC or their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
-2-
<PAGE> 150
11. GOVERNING LAW. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with
the laws of the State of Delaware.
NATIONAL CITY CORPORATION
By:
-----------------------------
Title:
--------------------------
MERCHANTS NATIONAL CORPORATION
By:
-----------------------------
Title:
--------------------------
-3-
<PAGE> 151
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE TWENTIETH
DAY OF MAY, A.D. 1993, AT 12 O'CLOCK P.M.
/s/ Edward J. Freel
[SEAL OF THE ----------------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
0784371 8100 AUTHENTICATION: 8779758
971405379 DATE: 11-26-97
<PAGE> 152
(#239.1)CEL STATE OF DELAWARE
5-10-93 SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:00 PM 05/20/1993
931415204 - 784371
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
NATIONAL CITY CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST, That a meeting of the Directors of the Corporation was duly
called and held on February 22, 1993, at which meeting of Directors a quorum was
present, and at such meeting the Directors, acting pursuant to Section 242 of
the General Corporation Law of the State of Delaware, adopted resolutions
setting forth a proposed Amendment to the first paragraph of Article Fourth of
the Restated Certificate of Incorporation of the Corporation, declaring its
advisability, and directing that such proposed Amendment be considered at the
annual meeting of stockholders to be held on April 26, 1993.
SECOND, THAT thereafter a meeting of the stockholders of the
Corporation was duly called and held on April 26, 1993, upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware, at which meeting of stockholders a quorum was present, and at such
meeting the stockholders, acting pursuant to Section 242 of the General
Corporation Law of the State of Delaware, duly adopted an Amendment to the first
paragraph of Article Fourth of the Restated Certificate of Incorporation, so
that the first paragraph of Article Fourth of the Restated Certificate of
Incorporation of the Corporation reads in its entirety as follows:
"FOURTH. The Corporation is authorized to issue a total of three
hundred fifty-five million (355,000,000) shares of all classes of
stock. Of such total number of authorized shares of stock, three
hundred fifty million (350,000,000) shares are Common Stock, par value
$4.00 per share, and five million (5,000,000) shares are Preferred
Stock without par value."
IN WITNESS WHEREOF, William R. Robertson, Deputy Chairman of the
Corporation, and David L. Zoeller, Secretary of the Corporation, acting for and
on its behalf, have hereunto subscribed their names and caused the seal of the
Corporation to be affixed hereto on May 10, 1993.
NATIONAL CITY CORPORATION
By /s/ William R. Robertson
----------------------------------
William R. Robertson
Deputy Chairman
[Seal]
Attest /s/ David L. Zoeller
------------------------------
David L. Zoeller
Secretary
<PAGE> 153
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"OHIO BANCORP", A OHIO CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWELFTH DAY OF
OCTOBER, A.D. 1993, AT 11:30 O'CLOCK A.M.
/s/ Edward J. Freel
[SEAL OF THE ----------------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
AUTHENTICATION: 8779759
0784371 8100M
DATE: 11-26-97
971405379
<PAGE> 154
10-12-93
CERTIFICATE OF MERGER
MERGING
OHIO BANCORP
WITH AND INTO
NATIONAL CITY CORPORATION
Pursuant to Section 252(c) of the Delaware General Corporation Law (the
"DGCL"), the undersigned, being the Chairman and the Secretary of National City
Corporation, a Delaware corporation, DO HEREBY CERTIFY on behalf of such
corporation that:
1. CONSTITUENT CORPORATIONS. The name and state of incorporation of
each of the constituent corporations are National City Corporation, a Delaware
corporation ("NCC"), and Ohio Bancorp, an Ohio corporation ("OHBC").
2. APPROVAL. An Agreement and Plan of Merger dated as of April 1, 1993,
as amended, (the "Agreement of Merger"), by and between OHBC and NCC setting
forth the agreement of merger whereby OHBC will merge with and into NCC (the
"Merger"), has been approved, adopted, certified, executed and acknowledged in
accordance with subsection (c) of Section 252 of the DGCL.
3. SURVIVING CORPORATION. NCC shall be the surviving corporation and
will retain its name, National City Corporation.
4. CERTIFICATE OF INCORPORATION. The Restated Certificate of
Incorporation of NCC in effect immediately prior to the Effective Time shall be
the Certificate of Incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. An executed copy of the Agreement of
Merger is on file at the principal place of business of the surviving
corporation, National City Corporation, National City Center, 1900 East Ninth
Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. A copy of the Agreement of Merger may
be obtained by any stockholder of NCC or any shareholder of OHBC without cost
upon written request to NCC, mailed to the address listed in paragraph 5 above.
7. AUTHORIZED CAPITAL STOCK. As of the date hereof, the authorized
capital stock of OHBC consists of 20,000,000 shares of common stock, no par
value.
<PAGE> 155
8. EFFECTIVE TIME. The Merger will become effective at the later of the
following: (a) the later of the times at which the Certificate of Merger is
filed with the Secretary of State of Delaware and the Secretary of State of
Ohio, and (b) 12:01 a.m., Eastern Daylight Savings Time, on October 12, 1993.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Merger on behalf of National City Corporation as of this 7th day of October,
1993.
NATIONAL CITY CORPORATION
By: /s/ Edward B. Brandon
------------------------------
Edward B. Brandon, Chairman
Attest:
/s/ David L. Zoeller
-----------------------------
David L. Zoeller, Secretary
<PAGE> 156
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"CENTRAL INDIANA BANCORP", A INDIANA CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-NINTH DAY OF
DECEMBER, A.D. 1994, AT 3 O'CLOCK P.M.
/s/ Edward J. Freel
[SEAL OF THE ------------------------------------
SECRETARY's OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
0784371 8100M AUTHENTICATION: 8779760
971405379 DATE: 11-26-97
<PAGE> 157
12-29-94
CERTIFICATE OF MERGER
MERGING
CENTRAL INDIANA BANCORP
WITH AND INTO
NATIONAL CITY CORPORATION
Pursuant to Section 252(c) of the Delaware General Corporation Law (the
"DGCL"), the undersigned, being the Chairman and the Secretary of National City
Corporation, a Delaware corporation, DO HEREBY CERTIFY on behalf of such
corporation that:
1. CONSTITUENT CORPORATIONS. The name and state of incorporation of
each of the constituent corporations are National City Corporation, a Delaware
corporation ("NCC"), and Central Indiana Bancorp, an Indiana corporation
("CIB").
2. APPROVAL. An Agreement and Plan of Merger dated as of July 25,
1994, as amended, (the "Agreement of Merger") by and between CIB and NCC
setting forth the agreement of merger whereby CIB will merge with and into NCC
(the "Merger"), has been approved, adopted, certified, executed and
acknowledged in accordance with subsection (c) of Section 252 of the DGCL.
3. SURVIVING CORPORATION. NCC shall be the surviving corporation and
will retain its name, National City Corporation.
4. CERTIFICATE OF INCORPORATION. The Restated Certificate of
Incorporation of NCC in effect immediately prior to the Effective Time shall be
the Certificate of Incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. An executed copy of the Agreement of
Merger is on file at the principal place of business of the surviving
corporation, National City Corporation, National City Center, 1900 East Ninth
Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. A copy of the Agreement of Merger may
be obtained by any stockholder of NCC or any shareholder of CIB without cost
upon written request to NCC, mailed to the address listed in paragraph 5 above.
7. AUTHORIZED CAPITAL STOCK. As of the date hereof, the authorized
capital stock of CIB consists of 5,000,000 shares of common stock, no par value,
and 2,000,000 shares of preferred stock.
<PAGE> 158
8. EFFECTIVE TIME. The Merger will become effective at the later of the
following: (a) the later of the times at which the Certificate of Merger is
filed with the Secretary of State of Delaware and the Secretary of State of
Indiana, and (b) 12:01 a.m., Eastern Standard Time, on January 1, 1995.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Merger on behalf of National City Corporation as of this 29th day of December,
1994.
NATIONAL CITY CORPORATION
By: /s/ Edward B. Brandon
---------------------------------
Edward B. Brandon, Chairman
Attest:
/s/ David L. Zoeller
-------------------------------
David L. Zoeller, Secretary
2
<PAGE> 159
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"UNITED BANCORP OF KENTUCKY, INC.", A KENTUCKY CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-NINTH DAY OF
JUNE, A.D. 1995, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
[SEAL OF THE ----------------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
0784371 8100M AUTHENTICATION: 8779761
971405379 DATE: 11-26-97
<PAGE> 160
CERTIFICATE OF MERGER
MERGING
UNITED BANCORP OF KENTUCKY, INC.
WITH AND INTO
NATIONAL CITY CORPORATION
Pursuant to Section 252(c) of the Delaware General Corporation Law (the
"DGCL"), the undersigned, being the Chairman and Secretary of National City
Corporation, a Delaware corporation. DO HEREBY CERTIFY on behalf of such
corporation that:
1. CONSTITUENT CORPORATIONS. The name and state of incorporation of each of the
constituent corporations are National City Corporation, a Delaware corporation,
("NCC"), and United Bancorp of Kentucky, Inc., a Kentucky corporation, ("UBK").
2. APPROVAL. An Agreement and Plan of Merger dated as of January 12, 1995, (the
"Agreement of Merger"), by and among NCC, UBK and James L. Rose setting forth
the agreement of merger whereby UBK will merge with and into NCC (the "Merger"),
has been approved, adopted, certified, executed and acknowledged in accordance
with subsection (c) of Section 252 of the DGCL.
3. SURVIVING CORPORATION. NCC shall be the surviving corporation and will retain
its name, National City Corporation.
4. CERTIFICATE OF INCORPORATION. The Restated Certificate of Incorporation of
NCC in effect immediately prior to the Effective Time shall be the Certificate
of Incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. An executed copy of the Agreement of Merger is
on file at the principal place of business of the surviving corporation,
National City Corporation, National City Center, 1900 East Ninth Street,
Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. A copy of the Agreement of Merger may be
obtained by any stockholder of NCC or any shareholder of UBK without cost upon
written request to NCC, mailed to the address listed in paragraph 5 above.
7. AUTHORIZED CAPITAL STOCK. As of the date hereof, the authorized capital stock
of UBK consists of 2,000,000 shares of common stock Series A par value $10.00,
2,000,000 shares of common stock Series AA par value $10.00, 100,000 shares of
preferred stock A par value $100.00, 100,000 shares of preferred stock AA par
value
<PAGE> 161
$100.00, 150,000 shares of preferred stock AAA par value $100.00, and 10,000
shares of preferred stock D, par value $10.00.
8. EFFECTIVE TIME. The Merger will become effective 12:01 a.m., Eastern Daylight
Time, on July 1, 1995.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Merger on
behalf of National City Corporation as of this 29th day of June, 1995.
NATIONAL CITY CORPORATION
By /s/ Edward B. Brandon
-------------------------------
Edward B. Brandon, Chairman
Attest:
/s/ David L. Zoeller
-------------------------------
David L. Zoeller, Secretary
<PAGE> 162
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"INTEGRA FINANCIAL CORPORATION", A PENNSYLVANIA CORPORATION, WITH AND
INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL CITY CORPORATION",
A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE SECOND DAY OF MAY, A.D. 1996, AT 2:45
O'CLOCK P.M.
/s/ Edward J. Freel
[SEAL OF THE ----------------------------------------
SECRETARY'S OFFICE Edward J. Freel, Secretary of State
STATE OF DELAWARE]
0784371 8100M AUTHENTICATION: 8779762
971405379 DATE: 11-26-97
<PAGE> 163
CERTIFICATE OF MERGER
MERGING
INTEGRA FINANCIAL CORPORATION
WITH AND INTO
NATIONAL CITY CORPORATION
Pursuant to Section 252(c) of the Delaware General Corporation Law (the
"DGCL"), the undersigned, being the Chairman and the Secretary of National
City Corporation, a Delaware corporation, DO HEREBY CERTIFY on behalf of such
corporation that:
1. CONSTITUENT CORPORATIONS. The name and state of incorporation of
each of the constituent corporations are National City Corporation, a Delaware
corporation ("National City), and Integra Financial Corporation, a Pennsylvania
corporation ("Integra").
2. APPROVAL. An Agreement and Plan of Merger dated as of August 27,
1995, (the "Agreement of Merger"), by and between Integra and National City
setting forth the agreement of merger whereby Integra will merge with and into
National City (the "Merger"), has been approved, adopted, certified, executed
and acknowledged in accordance with subsection (c) of Section 252 of the DGCL.
3. SURVIVING CORPORATION. National City shall be the surviving
corporation and will retain its name, National City Corporation.
4. CERTIFICATE OF INCORPORATION. The Restated Certificate of
Incorporation of National City in effect immediately prior to the Effective Time
shall be the Certificate of Incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. An executed copy of the Agreement of
Merger is on file at the principal place of business of the surviving
corporation, National City Corporation, National City Center, 1900 East Ninth
Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. A copy of the Agreement of Merger may
be obtained by any stockholder of National City or any shareholder of Integra
without cost upon written request to National City, mailed to the address listed
in paragraph 5 above.
7. AUTHORIZED CAPITAL STOCK. As of the date hereof, the authorized
capital stock of Integra consists of 100,000,000 shares of common stock, par
value $1.00 per share and 19,642,631 shares of preferred stock, no par value.
<PAGE> 164
8. EFFECTIVE TIME. The Merger will become effective 12:01 a.m., Eastern
Daylight Savings Time, on May 3, 1996.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Merger on behalf of National City Corporation as of this 2nd day of May, 1996.
NATIONAL CITY CORPORATION
By: /s/ David A. Daberko
---------------------------------
David A. Daberko, Chairman
Attest:
/s/ David L. Zoeller
----------------------------
David L. Zoeller, Secretary
<PAGE> 165
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES:
"INTEGRA HOLDING COMPANY", A DELAWARE CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-NINTH DAY OF
MAY, A.D. 1996, AT 3:30 O'CLOCK P.M.
/s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
0784371 8100M
[SEAL OF THE
971405479 SECRETARY'S OFFICE
STATE OF DELAWARE] AUTHENTICATION: 8779837
DATE: 11-26-97
<PAGE> 166
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
INTEGRA HOLDING COMPANY
INTO
NATIONAL CITY CORPORATION
* * * * *
National City Corporation, a corporation organized and existing under
the laws of The State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 17th day of
August, 1972, pursuant to the Delaware General Corporation Law of the State of
Delaware.
SECOND: That this corporation owns all of the outstanding shares (of
each class) of the stock of Integra Holding Company, a corporation incorporated
on the 27th day of November, 1991, pursuant to the Delaware General Corporation
Law of the State of Delaware.
THIRD: That this corporation, by the following resolutions of its Board
of Directors, duly adopted "at a meeting held" on the 22nd day of April, 1996,
determined to and did merge into itself said Integra Holding Company:
<PAGE> 167
RESOLVED, that National City Corporation merge, and it hereby does
merge into itself Integra Holding Company and assumes all its obligations;
and be it further
RESOLVED, that the merger shall be effective upon the date of filing
with the Secretary of State of Delaware.
FOURTH: Anything herein or elsewhere to the contrary notwithstanding,
this merger may be amended or terminated and abandoned by the Board of Directors
of National City Corporation at any time prior to the date of filing the merger
with the Secretary of State.
IN WITNESS WHEREOF, said National City Corporation has caused this
Certificate to be signed by David A. Daberko, its Chairman & CEO, this 29th
day of May, 1996.
NATIONAL CITY CORPORATION
By /s/ David A. Daberko
---------------------------------
David A. Daberko
Chairman & Chief Executive Officer
2
<PAGE> 168
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-FIRST DAY OF NOVEMBER, A.D. 1997, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
------------------------------------
[SEAL OF THE Edward J. Freel, Secretary of State
SECRETARY'S OFFICE
STATE OF DELAWARE] AUTHENTICATION: 8779846
0784371 8100 DATE: 11-26-97
971405379
<PAGE> 169
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION
National City Corporation (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST, that a meeting of the Directors of the Corporation was duly
called and held on February 24, 1997, at which meeting of Directors a quorum was
present, and at such meeting the Directors, acting pursuant to Section 242 of
the General Corporation Law of the State of Delaware, adopted resolutions
setting forth a proposed Amendment to the first paragraph of Article Fourth of
the Restated Certificate of Incorporation of the Corporation, declaring its
advisability, and directing that such proposed Amendment be considered at the
annual meeting of stockholders to be held on April 14, 1997.
SECOND, that a meeting of the stockholders of the Corporation was duly
called and held on April 14, 1997, upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware, at which meeting of
stockholders a quorum was present, and at such meeting the stockholders, acting
pursuant to Section 242 of the General Corporation Law of the State of Delaware,
duly adopted an Amendment to the first paragraph of the Article Fourth of the
Restated Certificate of Incorporation, so that the first paragraph of Article
Fourth of the Restated Certificate of Incorporation of the Corporation reads in
its entirety as follows:
"FOURTH: The Corporation is authorized to issue a total of seven
hundred five million (705,000,000) shares of all classes of stock. Of
such total number of authorized shares of stock, seven hundred million
(700,000,000) shares are Common Stock, par value $4.00 per share, and
five million (5,000,000) shares are Preferred Stock without par
value."
IN WITNESS WHEREOF, David A. Daberko, Chairman and Chief Executive
Officer of the Corporation, acting for and on its behalf, have hereunto
subscribed his name on November 4, 1997.
National City Corporation
By /s/ David A. Daberko
---------------------------------
David A. Daberko, Chairman and
Chief Executive Officer
STATE OF OHIO )
)SS.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
David A. Daberko, in his capacity as Chairman and Chief Executive Officer of the
above-named corporation, National City Corporation, who acknowledged that he did
sign the foregoing for and on behalf of that corporation, by authority of its
board of directors, that the same is the act and deed of that corporation and is
the act and deed of himself personally and as such officer, and that the facts
stated therein are true.
IN TESTIMONY WHEREOF, I set my hand and official seal this 4th day of November,
1997.
/s/ David P. Lewis
------------------------------
Notary Public
DAVID PAUL LEWIS, Atty. At Law
NOTARY PUBLIC - STATE OF OHIO
My Commission Has No Expiration Date
SEC. 147.03 R.C.
<PAGE> 170
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "NATIONAL CITY CORPORATION", FILED IN THIS OFFICE ON THE
TWENTIETH DAY OF MARCH, A.D. 1998, AT 4:30 O'CLOCK P.M.
[SEAL OF THE /s/ Edward J. Freel
SECRETARY'S OFFICE ------------------------------------
STATE OF DELAWARE] Edward J. Freel, Secretary of State
AUTHENTICATION: 8986042
DATE: 03-23-98
0784371 8100
981109751
<PAGE> 171
CERTIFICATE OF DESIGNATION
RIGHTS AND PREFERENCES
OF THE
6% CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES 1
WITHOUT PAR VALUE
OF
NATIONAL CITY CORPORATION
----------------------------
Pursuant to Section 151(g) of the
General Corporation Law
of the State of Delaware
----------------------------
NATIONAL CITY CORPORATION, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Restated Certificate of Incorporation of the Corporation, as
amended, authorizes the issuance of 5,000,000 shares of preferred stock, without
par value, of the Corporation ("Preferred Stock") in one or more series, and
authorizes the Board of Directors to fix by resolution or resolutions and
designation of each series of Preferred Stock and the powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof.
SECOND: The Board of Directors of the Corporation, at a meeting duly
held and called on January 12, 1998, authorized the issuance of shares of
Preferred Stock of the Corporation in exchange for Fort Wayne National
Corporation preferred stock and authorized the Pricing Committee of the Board of
Directors to approve the term of any Series 1 Preferred Stock; the price at
which, the title, date, form and number of shares of which, the Preferred Stock
shall be offered to the public; the period or periods within which, and the
price at which, the Preferred Stock may be redeemed by the Corporation, if any;
to fix the terms at which the Preferred Stock can be converted into the common
stock, par value $4.00 per share, of the Corporation ("Common Stock") and to
reserve the number of shares of Common Stock as may be issuable upon the
conversion of any such series of Preferred Stock; to establish such other terms
and make such other changes in the terms of the proposed issues of Preferred
Stock; and to approve
<PAGE> 172
all the forms of instruments relating thereto, and any changes therein, not
inconsistent with the foregoing, as such Committee shall deem to be desirable
and in the best interests of the Corporation.
THIRD: The Pricing Committee of the Board of Directors of the
Corporation, by unanimous written consent in lieu of a meeting dated February
2, 1998, did duly adopt the following resolutions providing for the
designation, powers, preferences and rights, and the qualifications, limitations
and/or restrictions thereof, of the 6% Cumulative Convertible Preferred Stock,
Series 1 without par value, of the Corporation.
NOW, THEREFORE, BE IT RESOLVED, that the Corporation create an issue of
Preferred Stock and by these resolutions, and that pursuant to the authority
conferred upon this Committee by the Board of Directors, the terms and
provisions of the Preferred Stock shall include the following:
1. Designation and Rank:
(a) 6% Cumulative Convertible Preferred Stock, Series 1 and the number
of shares constituting such series shall be 740,000. Series 1 Stock shall be
without par value but shall have a stated value of fifty dollars per share.
(b) The Series 1 Stock shall, with respect to dividend rights, rights
upon liquidation, winding up or dissolution, and redemption rights, rank (i)
junior to any other class or series of preferred stock hereafter duly
established by the Board of Directors of the Corporation, the terms of which
shall specifically provide that such series shall rank prior to the Series 1
Stock as to the payment of dividends and distribution of assets upon liquidation
(the "Senior Preferred Stock") (ii) pari passu with any other class of series of
preferred stock hereafter duly established by the Board of Directors of the
Corporation, the terms of which shall specifically provide that such class or
series shall rank pari passu with the Series 1 Stock as to the payment of
dividends and distribution of assets upon liquidation (the "Parity Preferred
Stock") and (iii) prior to any other class or series of capital stock of or
other equity interests in the Corporation, including, without limitation, the
National City Common, par value $4.00 per share ("Common Stock") of the
Corporation, whether now existing or hereafter created (all of such classes
or series of capital stock and other equity interests of the Corporation,
including, without limitation, the Common Stock, are collectively referred to
herein as the "Junior Securities").
2. Dividend Rights:
(a) The holders of shares of Series 1 Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available therefor, cash dividends, accruing from the date of initial issuance
(the "Issue Date"), at the annual rate of 6.00% per annum, and no more,
computed on the stated value of $50.00 for each share. Dividends shall be
payable, when and as declared by the Board of Directors, quarterly on April 1,
July 1, October 1, and January 1 of each year (each quarterly period ending on
each such date being hereinafter referred to as a "Dividend Period"), commencing
April 1, 1998. Each dividend will be payable
-2-
<PAGE> 173
to holders of record as they appear on the stock books of the Corporation on
such record dates as shall be fixed by the Board of Directors of the
Corporation. Dividends payable on the Series 1 Stock (i) for any period other
than a full Dividend Period shall be computed based upon the actual number of
days elapsed up to but not including the dividend payment date divided by 365,
and (ii) for each full Dividend Period shall be computed by dividing the annual
dividend rate by four.
(b) Holders of shares of the Series 1 Stock shall not be entitled to
any dividend, whether payable in cash, property or stock, in excess of full
cumulative dividends on such shares. 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.
(c) Unless full cumulative dividends on all outstanding shares of the
Series 1 Stock shall have been paid or declared and set aside for payment for
all past Dividend Periods, no dividend (other than a dividend in Common Stock
or in any Junior Securities) shall be declared upon the Junior Securities, nor
shall any Junior Securities 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 Junior Securities) by the
Corporation except for any redemption, purchase or acquisition relating to a
conversion of or exchange for such Junior Securities.
3. Liquidation Preferences:
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
Series 1 Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to shareholders an amount equal to
$50.00 per share plus an amount equal to any accrued and unpaid dividends
thereon to and including the date of such distribution, and no more, before any
distribution shall be made to the holders of any Junior Securities. After
payment of such liquidating distributions, the holders of shares of Series 1
Stock shall not be entitled to any further participation in any distribution of
assets by the Corporation.
(b) In the event the assets of the Corporation available for
distribution to shareholders upon any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the Series 1
Stock and any other Parity Preferred Stock, the holders of Series 1 Stock and
the holders of such Parity Preferred Stock shall share ratably in any
distribution of assets of the Corporation in proportion to the full respective
amounts to which they are entitled.
(c) The merger or consolidation of the Corporation into or with any
other corporation, the merger or consolidation of any other corporation into or
with the Corporation or the sale of the assets of the Corporation substantially
as an entirety shall not be deemed a liquidation, dissolution or winding up of
the affairs of the Corporation within the meaning of this section 3.
-3-
<PAGE> 174
4. Redemption:
(a) Subject to obtaining the prior approval of the Board of Governors of
the Federal Reserve System, if necessary, the Corporation, at its option, may
redeem any or all shares of Series 1 Stock, at any time or from time to time, on
or after April 1, 2002 at a redemption price of $50.00 per share, plus an amount
equal to accrued and unpaid dividends thereon to but not including the date of
redemption (the "Redemption Price").
(b) If less than all the outstanding shares of Series 1 Stock are to be
redeemed, the shares to be redeemed shall be selected pro rata as nearly as
practicable.
(c) Notice of any redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the date fixed
for redemption to the holders of record of the shares of Series 1 Stock to be
redeemed, at their respective addresses appearing on the books of the
Corporation. Notice so mailed shall be conclusively presumed to have been duly
given whether or not actually received. Such notice shall state (i) the date
fixed for redemption, (ii) the Redemption Price, (iii) that the holder has the
right to convert such shares into Common Stock until the close of business on
the tenth day preceding the redemption date, (iv) the then effective Conversion
Ratio (as defined in section 5 below) and the place where certificates for such
shares may be surrendered for conversion, (v) the number of shares of Series 1
Stock to be redeemed and if less than all the shares held by such holder are to
be redeemed, the number of such shares to be so redeemed from such holder, (vi)
the place where certificates for such shares are to be surrendered for payment
of the Redemption Price, and (vii) that after such date fixed for redemption
the shares to be redeemed shall not accrue dividends. If such notice is mailed
as aforesaid, and if on or before the date fixed for redemption funds
sufficient to redeem the shares called for redemption are set aside by the
Corporation in trust for the account of the holders of the shares to be
redeemed, then, notwithstanding the fact that any certificate for shares
called for redemption shall not have been surrendered for cancellation, on and
after the redemption date the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, dividends thereon shall
cease to accrue and all rights of the holders of such shares as shareholders of
the Corporation shall cease (except the right to receive the Redemption Price,
without interest, upon surrender of the certificate representing such shares).
Upon surrender in accordance with the aforesaid notice of the certificate for
any shares so redeemed (duly endorsed or accompanied by appropriate instruments
of transfer, if so required by the Corporation in such notice), the holders of
record of such shares shall be entitled to receive the Redemption Price,
without interest. Notwithstanding the foregoing, however, as and to the extent
that the Corporation is required or permitted under the abandoned property laws
of any jurisdiction to escheat any redemption funds held in trust for the
benefit of any holder, the Corporation shall be absolved of any further
obligation or liability to such holder to the full extent provided by any such
law. In case fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(d) At the option of the Corporation, if notice of redemption is mailed as
aforesaid, and if prior to the date fixed for redemption funds sufficient to pay
in full the Redemption Price
-4-
<PAGE> 175
are deposited in trust, for the account of the holders of the shares to be
redeemed, with a bank or trust company named in such notice doing business in
the State of Ohio or the Borough of Manhattan, The City of New York, State of
New York, and having capital and surplus of at least $50 million (which bank or
trust company also may be the transfer agent and/or paying agent for the Series
1 Stock), then, notwithstanding the fact that any certificates for shares called
for redemption shall not have been surrendered for cancellation, on and after
such date of deposit the shares represented thereby so called for redemption
shall be deemed to be no longer outstanding, and all rights of the holders of
such shares as shareholders of the Corporation shall cease (except the right of
the holders thereof to convert such shares in accordance with the provisions of
section 5 below at any time prior to the close of business on the tenth day
preceding the redemption date and the right of the holders thereof to receive
out of the funds so deposited in trust the Redemption Price, without interest,
upon surrender of the certificates representing such shares). Any funds so
deposited with such bank or trust company in respect of shares of Series 1 Stock
converted before the close of business on the tenth day preceding the redemption
date shall be returned to the Corporation upon such conversion. Unless otherwise
required by law, any funds so deposited with such bank or trust company which
shall remain unclaimed by the holders of shares called for redemption at the end
of two years after the redemption date shall be repaid to the Corporation, on
demand, and thereafter the holder of any such shares shall look only to the
Corporation for the payment, without interest, of the Redemption Price.
Notwithstanding the foregoing, however, as and to the extent that the
Corporation is required or permitted under the abandoned property laws of any
jurisdiction to escheat any redemption funds held in trust for the benefit of
any holder, the Corporation shall be absolved of any further obligation or
liability to such holder to the full extent provided by any such laws.
(e) Any provision of this section 4 to the contrary notwithstanding, in
the event that any dividends payable on the Series 1 Stock shall be in arrears
and until all such dividends in arrears shall have been paid or declared and set
apart for payment the Corporation shall not redeem any shares of Series 1 Stock
unless all outstanding shares of Series 1 Stock are simultaneously redeemed and
shall not purchase or otherwise acquire any shares of Series 1 Stock except in
accordance with a purchase or exchange offer made on the same terms to all
holders of record of Series 1 Stock for the purchase of all outstanding shares
thereof.
5. Conversion Rights:
The holders of shares of Series 1 Stock shall have the right, at their
option, to convert such shares into shares of Common Stock on the following
terms and conditions:
(a) Each share of Series 1 Stock shall be convertible at any time into
fully paid and nonassessable shares of Common Stock at a conversion ratio of
1.51455 shares of Common Stock for each share of Series 1 Stock (the
"Conversion Ratio"). The Conversion Ratio shall be subject to adjustment from
time to time as hereinafter provided. No payment or adjustment shall be made on
account of any accrued and unpaid dividends on shares of Series 1 Stock
surrendered for conversion prior to the record date for the determination of
shareholders entitled to such dividends or on account of any dividends on the
shares of Common Stock issued upon such conversion subsequent to the record date
for the determination of shareholders entitled to such
-5-
<PAGE> 176
dividends. If any shares of Series 1 Stock shall be called for redemption, the
right to convert the shares designated for redemption shall terminate at the
close of business on the tenth day preceding the date fixed for redemption
unless default is made in the payment of the Redemption Price. In the event of
default in the payment of the Redemption Price, the right to convert the shares
designated for redemption shall terminate at the close of business on the
business day immediately preceding the date that such default is cured.
(b) In order to convert shares of Series 1 Stock into Common Stock, the
holder thereof shall surrender the certificates therefor, duly endorsed if the
Corporation shall so require, or accompanied by appropriate instruments of
transfer satisfactory to the Corporation, at the office of the transfer agent
for the Series 1 Stock, or at such other office as may be designated by the
Corporation, together with written notice that such holder irrevocably elects to
convert such shares. Such notice shall also state the name and address in which
such holder wishes the certificate for the shares of Common Stock issuable upon
conversion to be issued. As soon as practicable after receipt of the
certificates representing the shares of Series 1 Stock to be converted and the
notice of election to convert the same, the Corporation shall issue and deliver
at said office a certificate for the number of whole shares of Common Stock
issuable upon conversion of the shares of Series 1 Stock surrendered for
conversion, together with a cash payment in lieu of any fraction of a share, as
hereinafter provided, to the person entitled to receive the same. If more than
one stock certificate for Series 1 Stock shall be surrendered for conversion at
one time by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of shares represented by all the certificates so surrendered. Shares of Series 1
Stock shall be deemed to have been converted immediately prior to the close of
business on the date such shares are surrendered for conversion and notice of
election to convert the same is received by the Corporation in accordance with
the foregoing provision, and the person entitled to receive the Common Stock
issuable upon such conversion shall be deemed for all purposes as the record
holder of such Common Stock as of such date.
(c) In the case of any share of Series 1 Stock which is converted after
any record date with respect to the payment of a dividend on the Series 1 Stock
and on or prior to the date on which such dividend is payable by the Corporation
(the "Dividend Due Date"), the dividend due on such Dividend Due Date shall be
payable on such Dividend Due Date to the holder of record of such shares as of
such preceding record date notwithstanding such conversion. Shares of Series 1
Stock surrendered for conversion during the period from the close of business on
any record date with respect to the payment of a dividend on the Series 1 Stock
next preceding any Dividend Due Date to the opening of business on such Dividend
Due Date shall (except in the case of shares of Series 1 Stock which have been
called for redemption on a redemption date within such period) be accompanied by
payment of an amount equal to the dividend payable on such Dividend Due Date on
the shares of Series 1 Stock being surrendered for conversion. The dividend with
respect to a share of Series 1 Stock called for redemption on a redemption date
during the period from the close of business on any record date with respect to
the payment of a dividend on the Series 1 Stock next preceding any Dividend Due
Date to the opening of business on such Dividend Due Date shall be payable on
such Dividend Due Date to the holder of record of such share on such dividend
record date, notwithstanding the conversion of such share of
-6-
<PAGE> 177
Series 1 Stock after such record date and prior to such Dividend Due Date, and
the holder converting such share of Series 1 Stock called for redemption need
not include a payment of such dividend amount upon surrender of such share of
Series 1 Stock for conversion. Except as provided in this subsection (c), no
payment or adjustment shall be made upon any conversion on account of any
dividends accrued on shares of Series 1 Stock surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon conversion.
(d) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series 1 Stock. If the conversion of any shares of
Series 1 Stock results in a fractional share of Common Stock, the Corporation
shall pay cash in lieu thereof in an amount equal to such fraction multiplied by
the Current Market Price of the Common Stock (as defined below), on the date on
which the shares of Series 1 Stock were duly surrendered for conversion, or if
such date is not a trading date, on the next succeeding trading date.
(e) The Conversion Ratio shall be adjusted from time to time after the
Issue Date, as follows:
(i) In case the Corporation shall pay or make a dividend or other
distribution on shares of Common Stock in Common Stock, the Conversion
Ratio in effect at the opening of business on the date following the date
fixed for the determination of shareholders entitled to receive such
dividend or other distribution shall be increased by dividing such
Conversion Ratio by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend
or other distribution, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination.
(ii) In case the Corporation shall issue additional rights or
warrants to all holders of its Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a price per share less than the
Current Market Price of the Common Stock on the date fixed for the
determination of shareholders entitled to receive such rights or warrants
(other than pursuant to a dividend reinvestment plan), the Conversion Ratio
in effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Conversion Ratio
by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at the Current
Market Price of the Common Stock and the denominator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date
fixed for such determination.
-7-
<PAGE> 178
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion
Ratio in effect at the opening of business on the day following the day
upon which such subdivision becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall be combined into a smaller number of shares of Common Stock, the
Conversion Ratio in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
(iv) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness
or assets (including securities, but excluding (A) any rights or warrants
referred to in clause (ii) above, (B) any dividend or distribution paid in
cash out of the retained earnings of the Corporation, and (C) any dividend
or distribution referred to in clause (i) above), the Conversion Ratio
shall be adjusted so that the same shall equal the ratio determined by
multiplying the Conversion Ratio in effect immediately prior to the close
of business on the date fixed for the determination of shareholders
entitled to receive such distribution by a fraction of which the numerator
shall be the Current Market Price of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and shall be
described in a statement filed with the transfer agent for the Series 1
Stock) of the portion of the evidences of indebtedness or assets so
distributed applicable to one share of Common Stock and the denominator
shall be the Current Market Price of the Common Stock, such adjustment to
become effective immediately prior to the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such distribution.
(v) For the purposes of this section 5, the reclassification of
Common Stock into securities including securities other than Common Stock
(other than any reclassification upon a consolidation or merger to which
subsection (g) below applies) shall be deemed to involve (A) a distribution
of such securities other than Common Stock to all holders of Common Stock
(and the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of shareholders entitled to receive such
distribution" and the "date fixed for such determination" within the
meaning of clause (iv) above), and (B) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
became effective" or "the day upon which such combination becomes
effective" as the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of clause (iii) above).
(vi) For the purposes of this section 5, (other than subsection
(a)), the Current Market Price of the Common Stock on any day shall be
deemed to be the average of the
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<PAGE> 179
daily closing prices for the 30 consecutive trading days commencing 45
trading days before the day in question. The closing price for each day
shall be the reported last sale price on the NYSE, or, if the Common Stock
is no longer listed on the NYSE, on the principal national securities
exchange on which the Common Stock is then listed or admitted to trading
or, if the Common Stock is not listed on the NYSE or listed or admitted to
trading on any national securities exchange, the average of the closing bid
and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose.
(vii) Not withstanding the foregoing, no adjustment in the
Conversion Ratio for the Series 1 Stock shall be required unless such
adjustment would require an increase or decrease of at least 1% in such
ratio; provided, however, that any adjustments which are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this section 5 shall be made to the
nearest cent or to the nearest one-ten thousandth of a share (0.0001), as
the case may be.
(f) Whenever the Conversion Ratio shall be adjusted as herein provided
(i) the Corporation shall forthwith make available at the office of the transfer
agent for the Series 1 Stock a statement describing in reasonable detail the
adjustment, the facts requiring such adjustment and the method of calculation
used and (ii) the Corporation shall cause to be mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record of shares of
Series 1 Stock a notice stating that the Conversion Ratio has been adjusted and
setting forth the adjusted Conversion Ratio.
(g) In the event of any consolidation of the Corporation with or merger
of the Corporation into any other corporation (other than a merger in which the
Corporation is the surviving corporation) or a sale, lease or conveyance of the
assets of the Corporation as an entirety or substantially as an entirety, or
any statutory exchange of securities with another corporation, the holder of
each share of Series 1 Stock shall have the right, after such consolidation,
merger, sale or exchange to convert such share into the number and kind of
shares of stock or other securities and the amount and kind of property which
such holder would have been entitled to receive upon such consolidation, merger,
sale or exchange of the number of shares of Common Stock that would have been
issued to such holder had such shares of Series 1 Stock been converted
immediately prior to such consolidation, merger or sale. The provisions of this
subsection (g) shall similarly apply to successive consolidations, mergers,
sales or exchanges.
(h) The Corporation shall pay any taxes that may be payable in respect
of the issuance of shares of Common Stock upon conversion of shares of Series 1
Stock, but the Corporation shall not be required to pay any taxes which may be
payable in respect of any transfer involved in the issuance of shares of Common
Stock in the name other than that in which the shares of Series 1 Stock so
converted are registered, and the Corporation shall not be required to issue or
deliver any such shares unless and until the person requesting such issuance
shall have paid to
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<PAGE> 180
the Corporation the amount of any such taxes, or shall have established to the
satisfaction of the Corporation that such taxes have been paid.
(i) The Corporation may (but shall not be required to) make such
increases and reductions in the Conversion Ratio, in addition to those required
by clauses (i) through (iv) of subsection (e) above, as it considers to be
advisable in order that any event treated for federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the recipients.
(j) The Corporation shall at all times reserve and keep available out
of its authorized but unissued Common Stock the full number of shares of Common
Stock issuable upon the conversion of all shares of Series 1 Stock then
outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash out of
retained earnings, or
(ii) The Corporation shall authorize the granting to the holders of
its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights, or
(iii) any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation, consolidation or
merger of the Corporation with or into another corporation (other than a
merger in which the Corporation is the surviving corporation), or sale,
lease or conveyance of the assets of the Corporation as an entirety or
substantially as an entity to another corporation occurs, or
(iv) the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation occurs,
the Corporation shall cause to be mailed to the holders of record of Series 1
Stock at least 15 days prior to the applicable date hereinafter specified a
notice stating (A) the date on which a record is to be taken for the purpose of
such dividend, distribution of rights, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined or (B) the date on which
such reorganization, reclassification, consolidation, merger, sale, lease,
conveyance, dissolution, liquidation or winding up is expected to take place,
and the date, if any is to be fixed, as of which holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, dissolution, liquidation or
winding up. Failure to give such notice, or any defect therein, shall not affect
the legality or validity of such dividend, distribution, reorganization,
reclassification, consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding up.
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<PAGE> 181
6. Voting Rights:
Other than as required by applicable law or to the extent otherwise
provided in this Section 6, the holders of Series 1 Stock shall not have any
voting rights.
(a) The holders of shares of Series 1 Stock shall have the right,
voting separately, to elect that number of additional members of the Board of
Directors as equals the number of classes of Common Directors if the Corporation
shall fail to pay any dividend payable on the shares of Series 1 Stock for six
quarters. Such limited rights may be exercised at the next meeting of
stockholders at which Directors are to be elected and which takes place more
than ninety days following such failure to pay dividends as aforesaid (other
than a separate meeting of the holders of another class of shares) and at each
succeeding meeting of shareholders at which Directors are to be elected (other
than a separate meeting of the holders of another class of shares) until payment
of all dividends on shares of Series 1 Stock which are in arrears has been made
or provided for, at which time the right to vote for election of Directors
conferred upon the holders of shares of Series 1 Stock shall cease, the terms of
the Series 1 Stock Directors shall end and they shall cease to serve. Such
limited voting rights shall not limit or restrict the right of the Corporation
from time to time to increase or decrease the number of Directors (other than
Series 1 Stock Directors) which the Corporation shall have. The Directors
elected pursuant to this provision are designated Series 1 Stock Directors.
(b) Before any meeting at which the holders of shares of Series 1 Stock
shall be entitled to vote in the election of Series 1 Directors, the number of
Directors shall be deemed to have been increased by the same number as there are
number of classes of Common directors so as to provide that number of additional
places for the Series 1 Directorships to be filled by the votes of the holders
of share of Series 1 Stock, and the Corporation's Bylaws shall be deemed to have
been amended accordingly, in the same manner and to the same extent as if the
Directors of the Corporation had unanimously, expressly, and specifically
authorized that increase in the number of Directors at a meeting thereof duly
called and held for that purpose. When the terms of the Series 1 Stock Directors
shall have ended, the number of Directors shall be deemed to have been decreased
by the number of Series 1 Stock Directors in order to eliminate the additional
places for the Series 1 Directors and the Corporation's bylaws shall be deemed
to have been amended accordingly, in the same manner as provided above.
(c) So long as any share of Series 1 Stock is outstanding, the
Corporation shall not, without the affirmative votes of the holders of at least
two-thirds (2/3) of the aggregate number of shares of Series 1 Stock (i) change
or repeal any of the voting rights or any of the relative rights preferences,
qualification, limitations and restrictions of the holders of any shares of the
Series 1 Stock then outstanding so as to affect that stock adversely with
respect to any other class of capital stock then outstanding or (ii) authorize
any class of stock ranking, as to voting rights or as to relative rights,
preferences, qualifications, limitations and restrictions, prior to the Series 1
Stock or any Series then outstanding.
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<PAGE> 182
(d) Whenever the holders of shares of Series 1 Stock have the right to
vote they shall be entitled to cast one (1) vote for each duly authorized,
issued and outstanding share of Series 1 Stock standing in their names on the
books of the Corporation.
7. Reacquired Shares:
Shares of Series 1 Stock converted, redeemed, or otherwise purchased or
acquired by the Corporation shall be restored to the status of authorized but
unissued shares of preferred stock without designation as to series and may
thereafter be issued, but not as Series 1 Stock.
8. No Sinking Fund:
Shares of Series 1 Stock are not subject to the operation of a sinking
fund or other obligation of the Corporation to redeem or retire the Series 1
Stock; and be it further
RESOLVED, that all actions taken by the officers and directors of the
Corporation or any of them in connection with the foregoing resolutions through
the date hereof be, and they hereby are, ratified and approved.
IN WITNESS WHEREOF, NATIONAL CITY CORPORATION, has caused this
Certificate of Designation to be signed David A. Daberko, its Chairman and David
L. Zoeller, its Secretary, and its Corporate Seal to be hereunder affixed this
20th day of March, 1998.
NATIONAL CITY CORPORATION
[Seal] By: David A. Daberko
-----------------------------------
David A. Daberko, Chairman & CEO
/s/ David L. Zoeller
-------------------------------
David L. Zoeller, Secretary
-12-
<PAGE> 183
CERTIFICATE OF MERGER
MERGING
FORT WAYNE NATIONAL CORPORATION
WITH AND INTO
NATIONAL CITY CORPORATION
-------------------------
The undersigned, National City Corporation, being a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, by its duly authorized officer, DOES HEREBY CERTIFY:
l. CONSTITUENT CORPORATIONS. That the name and state of incorporation
of each of the constituent corporations to the merger is as follows:
<TABLE>
<CAPTION>
Name State of Incorporation
---- ----------------------
<S> <C>
National City Corporation Delaware
Fort Wayne National Corporation Indiana
</TABLE>
and National City Corporation ("National City"), a Delaware corporation, shall
be the surviving corporation.
2. APPROVAL OF AGREEMENT OF MERGER. That an Agreement and Plan of
Merger (the "Agreement of Merger"), dated as of January 12, 1998, having been
made by and between National City and Fort Wayne National Corporation ("FWNC"),
an Indiana corporation, has been approved, adopted, certified, executed and
acknowledged by National City in accordance with subsection (c) of section 252
of the General Corporation Law of the State of Delaware. The Agreement of Merger
is permitted by the laws of the State of Indiana, the jurisdiction under which
FWNC is organized, and the Agreement of Merger was adopted and approved pursuant
to and in accordance with the laws of that jurisdiction.
3. NAME OF SURVIVING CORPORATION. That the name of the surviving
corporation of the merger shall be National City Corporation.
<PAGE> 184
4. CERTIFICATE OF INCORPORATION. That the certificate of incorporation
of National City, the surviving corporation, shall be the certificate of
incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. That the executed Agreement of Merger
is on file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is
National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. That a copy of the Agreement of
Merger will be furnished by surviving corporation, on request and without cost,
to any stockholder of National City or any shareholder of FWNC.
7. AUTHORIZED CAPITAL STOCK. That, as of the date hereof, the
authorized capital stock of FWNC consists of 50,000,000 shares of Common Stock,
without par value, 2,000,000 shares of Class A Preferred Stock, without par
value, and 2,000,000 shares of Class B Preferred Stock, without par value.
8. EFFECTIVE TIME. That the merger will be effective at 4:51 p.m.,
Eastern Standard Time, on March 30, 1998.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Merger on this thirtieth day of March, 1998.
National City Corporation
By: /s/ David A. Daberko
----------------------------
David A. Daberko, Chairman
-2-
<PAGE> 185
EXHIBIT D
<PAGE> 186
CERTIFICATE OF MERGER
MERGING
FIRST OF AMERICA BANK CORPORATION
WITH AND INTO
NATIONAL CITY CORPORATION
-------------------------
The undersigned, National City Corporation, being a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, by its duly authorized officer, DOES HEREBY CERTIFY:
l. CONSTITUENT CORPORATIONS. That the name and state of incorporation
of each of the constituent corporations to the merger is as follows:
<TABLE>
<CAPTION>
Name State of Incorporation
---- ---------------------
<S> <C>
National City Corporation Delaware
First of America Bank Corporation Michigan
</TABLE>
and National City Corporation ("National City"), a Delaware
corporation, shall be the surviving corporation.
2. APPROVAL OF AGREEMENT OF MERGER. That an Agreement and Plan of
Merger (the "Agreement of Merger"), dated as of November 30, 1997, having been
made by and between National City and First of America Bank Corporation ("FOA"),
a Michigan corporation, has been approved, adopted, certified, executed and
acknowledged by National City in accordance with subsection (c) of section 252
of the General Corporation Law of the State of Delaware. The Agreement of Merger
is permitted by the laws of the State of Michigan, the jurisdiction under which
FOA is organized, and the Agreement of Merger was adopted and approved pursuant
to and in accordance with the laws of that jurisdiction.
3. NAME OF SURVIVING CORPORATION. That the name of the surviving
corporation of the merger shall be National City Corporation.
<PAGE> 187
4. CERTIFICATE OF INCORPORATION. That the certificate of incorporation
of National City, the surviving corporation, shall be the certificate of
incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. That the executed Agreement of Merger
is on file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is
National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. That a copy of the Agreement of
Merger will be furnished by surviving corporation, on request and without cost,
to any stockholder of National City or any shareholder of FOA.
7. AUTHORIZED CAPITAL STOCK. That, as of the date hereof, the
authorized capital stock of FOA consists of 200,000,000 shares of common stock,
$10.00 par value per share, and 10,000,000 shares of preferred stock, without
par value.
8. EFFECTIVE TIME. That the merger will be effective at 4:51 p.m.,
Eastern Standard Time, on March 31, 1998.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Merger on this thirty-first day of March, 1998.
National City Corporation
By: /S/ David A. Daberko
-------------------------------
David A Daberko, Chairman
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<PAGE> 188
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"FORT WAYNE NATIONAL CORPORATION", A INDIANA CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF "NATIONAL
CITY CORPORATION", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF
MARCH, A.D. 1998, AT 11 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[SEAL] ----------------------------------------
Edward J. Freel, Secretary of State
0784371 8100M AUTHENTICATION: 9000662
981121092 DATE: 03-30-98
<PAGE> 189
CERTIFICATE OF MERGER
MERGING
FORT WAYNE NATIONAL CORPORATION
WITH AND INTO
NATIONAL CITY CORPORATION
-------------------------
The undersigned, National City Corporation, being a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, by its duly authorized officer, DOES HEREBY CERTIFY:
1. CONSTITUENT CORPORATIONS. That the name and state of incorporation
of each of the constituent corporations to the merger is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
National City Corporation Delaware
Fort Wayne National Corporation Indiana
and National City Corporation ("National City"), a Delaware corporation, shall
be the surviving corporation.
2. APPROVAL OF AGREEMENT OF MERGER. That an Agreement and Plan of
Merger (the "Agreement of Merger"), dated as of January 12, 1998, having been
made by and between National City and Fort Wayne National Corporation ("FWNC"),
an Indiana corporation, has been approved, adopted, certified, executed and
acknowledged by National City in accordance with subsection (c) of section 252
of the General Corporation Law of the State of Delaware. The Agreement of Merger
is permitted by the laws of the State of Indiana, the jurisdiction under which
FWNC is organized, and the Agreement of Merger was adopted and approved pursuant
to and in accordance with the laws of that jurisdiction.
3. NAME OF SURVIVING CORPORATION. That the name of the surviving
corporation of the merger shall be National City Corporation.
<PAGE> 190
4. CERTIFICATE OF INCORPORATION. That the certificate of incorporation
of National City, the surviving corporation, shall be the certificate of
incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. That the executed Agreement of Merger
is on file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is
National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. That a copy of the Agreement of
Merger will be furnished by surviving corporation, on request and without cost,
to any stockholder of National City or any shareholder of FWNC.
7. AUTHORIZED CAPITAL STOCK. That, as of the date hereof, the
authorized capital stock of FWNC consists of 50,000,000 shares of Common Stock,
without par value, 2,000,000 shares of Class A Preferred Stock, without par
value, and 2,000,000 shares of Class B Preferred Stock, without par value.
8. EFFECTIVE TIME. That the merger will be effective at 4:51 p.m.,
Eastern Standard Time, on March 30, 1998.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Merger on this thirtieth day of March, 1998.
NATIONAL CITY CORPORATION
By: /s/ David A. Daberko
--------------------------------
David A. Daberko, Chairman
-2-
<PAGE> 191
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"FIRST OF AMERICA BANK CORPORATION", A MICHIGAN CORPORATION,
WITH AND INTO "NATIONAL CITY CORPORATION" UNDER THE NAME OF
"NATIONAL CITY CORPORATION", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED
AND FILED IN THIS OFFICE THE THIRTY-FIRST DAY OF MARCH, A.D.
1998, AT 10:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE
NEW CASTLE COUNTY RECORDER OF DEEDS.
[SEAL OF THE SECRETARY'S /s/ Edward J. Freel
OFFICE, STATE OF DELAWARE] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9002876
0784371 8100M DATE: 03-31-98
981123046
<PAGE> 192
CERTIFICATE OF MERGER
MERGING
FIRST OF AMERICA BANK CORPORATION
WITH AND INTO
NATIONAL CITY CORPORATION
-------------------------
The undersigned, National City Corporation, being a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, by its duly authorized officer, DOES HEREBY CERTIFY:
1. CONSTITUENT CORPORATIONS. That the name and state of incorporation
of each of the constituent corporations to the merger is as follows:
Name State of Incorporation
---- ----------------------
National City Corporation Delaware
First of America Bank Corporation Michigan
and National City Corporation ("National City"), a Delaware corporation, shall
be the surviving corporation.
2. APPROVAL OF AGREEMENT OF MERGER. That an Agreement and Plan of
Merger (the "Agreement of Merger"), dated as of November 30, 1997, having been
made by and between National City and First of America Bank Corporation ("FOA"),
a Michigan corporation, has been approved, adopted, certified, executed and
acknowledged by National City in accordance with subsection (c) of section 252
of the General Corporation Law of the State of Delaware. The Agreement of Merger
is permitted by the laws of the State of Michigan, the jurisdiction under which
FOA is organized, and the Agreement of Merger was adopted and approved pursuant
to and in accordance with the laws of that jurisdiction.
3. NAME OF SURVIVING CORPORATION. That the name of the surviving
corporation of the merger shall be National City Corporation.
<PAGE> 193
4. CERTIFICATE OF INCORPORATION. That the certificate of incorporation
of National City, the surviving corporation, shall be the certificate of
incorporation of the surviving corporation.
5. AGREEMENT OF MERGER ON FILE. That the executed Agreement of Merger
is on file at the principal place of business of the surviving corporation. The
address of the principal place of business of the surviving corporation is
National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114.
6. COPIES OF AGREEMENT OF MERGER. That a copy of the Agreement of
Merger will be furnished by surviving corporation, on request and without cost,
to any stockholder of National City or any shareholder of FOA.
7. AUTHORIZED CAPITAL STOCK. That, as of the date hereof, the
authorized capital stock of FOA consists of 200,000,000 shares of common stock,
$10.00 par value per share, and 10,000,000 shares of preferred stock, without
par value.
8. EFFECTIVE TIME. That the merger will be effective at 4:51 p.m.,
Eastern Standard Time, on March 31, 1998.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Merger on this thirty-first day of March, 1998.
National City Corporation
By: /s/ David A. Daberko
----------------------------
David A. Daberko, Chairman
-2-
<PAGE> 194
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT OF "NATIONAL CITY CORPORATION", FILED IN
THIS OFFICE ON THE FOURTEENTH DAY OF APRIL, A.D. 1999, AT 3 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF THE SECRETARY'S /s/ Edward J. Freel
OFFICE, STATE OF DELAWARE] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9686895
DATE: 04-14-99
0784371 8100
991146527
<PAGE> 195
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION
National City Corporation (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST, that a meeting of the Directors of the Corporation was duly
called and held on February 22, 1999, at which meeting of Directors a quorum was
present, and at such meeting the Directors, acting pursuant to Section 242 of
the General Corporation Law of the State of Delaware, adopted resolutions
setting forth a proposed Amendment to the first paragraph of Article Fourth of
the Restated Certificate of Incorporation of the Corporation, declaring its
advisability, and directing that such proposed Amendment be considered at the
annual meeting of stockholders to be held on April 12, 1999.
SECOND, that a meeting of the stockholders of the Corporation was duly
called and held on April 12, 1999, upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware, at which meeting of
stockholders a quorum was present, and at such meeting the stockholders, acting
pursuant to Section 242 of the General Corporation Law of the State of Delaware,
duly adopted an Amendment to the first paragraph of the Article Fourth of the
Restated Certificate of Incorporation, so that the first paragraph of Article
Fourth of the Restated Certificate of Incorporation of the Corporation reads in
its entirety as follows:
"FOURTH: The Corporation is authorized to issue a total of one billion
four hundred five million (1,405,000,000) shares of all classes of
stock. Of such total number of authorized shares of stock, one billion
four hundred million (1,400,000,000) shares are Common Stock, par value
$4.00 per share, and five million (5,000,000) shares are Preferred
Stock without par value."
IN WITNESS WHEREOF, David A. Daberko, Chairman and Chief Executive
Officer of the Corporation, acting for and on its behalf, have hereunto
subscribed his name on April 13, 1999.
National City Corporation
By /s/ David A. Daberko
------------------------------------
David A. Daberko, Chairman and
Chief Executive Officer
STATE OF OHIO )
)SS.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
David A. Daberko, in his capacity as Chairman and Chief Executive Officer of the
above-named corporation, National City Corporation, who acknowledged that he did
sign the foregoing for and on behalf of that corporation, by authority of its
board of directors, that the same is the act and deed of that corporation and is
the act and deed of himself personally and as such officer, and that the facts
stated therein are true.
IN TESTIMONY WHEREOF, I set my hand and official seal, this 13th day of April,
1999.
/s/ Carlton E. Langer
---------------------------
Notary Public
CARLTON E. LANGER,
Notary Public - State of Ohio
My commission has no expiration date
Section 147.03 R.C.
