<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1996
REGISTRATION NO. 33-65431
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
FIRST CHICAGO NBD CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-1984850
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670
(312) 732-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
ROBERT A. ROSHOLT
EXECUTIVE VICE PRESIDENT AND PRINCIPAL FINANCIAL OFFICER
FIRST CHICAGO NBD CORPORATION
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670
(312) 732-3209
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
LAURENCE GOLDMAN, ESQ. B. ROBBINS KIESSLING, ESQ.
FIRST CHICAGO NBD CORPORATION CRAVATH, SWAINE & MOORE
ONE FIRST NATIONAL PLAZA, CHICAGO, WORLDWIDE PLAZA
ILLINOIS 60670 825 EIGHTH AVENUE, NEW YORK, NEW YORK
10019
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1)(2)(3) PER UNIT(2) PRICE(1)(4) FEE
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<S> <C> <C> <C> <C>
Debt securities........ 100%
Warrants to purchase
Debt Securities....... --
Foreign Currency
Warrants.............. --
Stock-Index Warrants... --
Other Warrants......... --
Preferred Stock(5)..... $1,850,000,000 -- $1,850,000,000 $637,932(8)
Depositary Shares
representing Preferred
Stock(6).............. --
Preferred Stock
Warrants.............. --
Common Stock Warrants.. --
Common Stock, $1 par
value per share(7).... --
</TABLE>
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(1) In no event will the aggregate initial offering price of the securities
issued under this Registration Statement, and not previously registered
under the Securities Act of 1933, as amended (the "Act"), exceed
$1,850,000,000, or the equivalent thereof in one or more foreign
currencies or currency units.
(2) Or, if any Debt Securities are issued at original issue discount, such
greater amount as may result in the initial offering prices for Debt
Securities and Warrants to purchase Debt Securities.
(3) This Registration Statement also serves to register such indeterminate
amount of securities that are to be offered and sold in connection with
market making activities by an affiliate of the Registrant.
(4) Estimated solely for the purpose of calculating the registration fee. Any
offering of Debt Securities or Warrants denominated in any foreign
currency or currency unit will be treated as the equivalent in U.S.
dollars based on the exchange rate applicable to the purchase of such Debt
Securities or Warrants from the Registrant. No separate consideration will
be received for Common Stock, Preferred Stock or Debt Securities that are
issued upon conversion or exchange of Debt Securities, Preferred Stock or
Depositary Shares registered hereunder.
(5) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion or
exchange of Debt Securities or exercise of Warrants.
(6) To be evidenced by Depositary Receipts issued pursuant to a Deposit
Agreement. In the event the Registrant elects to offer to the public
fractional interests in shares of the Preferred Stock registered
hereunder, Depositary Receipts will be distributed to those persons
purchasing such fractional interests and the shares of the Preferred Stock
will be issued to the Depositary under the Deposit Agreement.
(7) Such indeterminate number of shares of Common Stock as may from time to
time be issued upon exercise of Warrants or conversion or exchange of Debt
Securities or Preferred Stock, to the extent any of such Debt Securities
or shares of Preferred Stock are, by their terms convertible into Common
Stock, registered hereunder.
(8) Previously paid.
Pursuant to Rule 429 of the Rules and Regulations of the Securities and
Exchange Commission under the Act, the Prospectus included in this
Registration Statement is a combined prospectus which also relates to the
Registrant's Registration Statement on Form S-3 (No. 33-60788) (the "Prior
Registration Statement"). This Registration Statement, which is a new
registration statement, also constitutes a post-effective amendment to the
Prior Registration Statement. The amount of securities eligible to be sold
under the Prior Registration Statement ($150,000,000) shall be carried forward
to this Registration Statement. Such post-effective amendment shall hereafter
become effective concurrently with the effectiveness of this Registration
Statement in accordance with Section 8(a) of the Act. The amount of the filing
fee associated with such securities that was previously paid with the Prior
Registration Statement is $46,875.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, JANUARY 31, 1996
PROSPECTUS
FIRST CHICAGO NBD CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
FOREIGN CURRENCY WARRANTS, STOCK-INDEX WARRANTS AND OTHER WARRANTS
PREFERRED STOCK, DEPOSITARY SHARES AND PREFERRED STOCK WARRANTS
COMMON STOCK WARRANTS
First Chicago NBD Corporation (the "Company") may issue from time to time,
together or separately, (i) in one or more series, its unsecured debt
securities ("Debt Securities"), which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities") in priority of
payment, both of which may be convertible or exchangeable into common stock,
par value $1.00 per share, of the Company ("Common Stock"), preferred stock of
the Company ("Preferred Stock"), other Debt Securities, Debt Warrants, Common
Stock Warrants, Preferred Stock Warrants or Depositary Shares (each as defined
herein); (ii) warrants ("Debt Warrants") to purchase Debt Securities; (iii)
options, warrants or other rights relating to the exchange of certain
currencies ("Currency Warrants"); (iv) options, warrants or other rights
entitling the holder to receive an amount in cash determined by reference to
increases ("Stock-Index Call Warrants") and decreases ("Stock-Index Put
Warrants" and, collectively with Stock-Index Call Warrants, being referred to
herein as the "Stock-Index Warrants") in the level of a specified stock-index
which may be based on one or more U.S. or foreign stocks or a combination
thereof; (v) options, warrants or other rights relating to other items or
indices ("Other Warrants"); (vi) shares of Preferred Stock which may be
convertible into shares of Common Stock or exchangeable for Debt Securities;
(vii) shares of Preferred Stock represented by depositary shares ("Depositary
Shares"); (viii) warrants to purchase shares of Preferred Stock ("Preferred
Stock Warrants"); and (ix) warrants to purchase shares of Common Stock ("Common
Stock Warrants"), in amounts, at prices and on terms to be determined at the
time of the offering. The Debt Warrants, Currency Warrants, Stock-Index
Warrants, Other Warrants, Preferred Stock Warrants and Common Stock Warrants
are collectively referred to herein as the "Warrants"; and the Debt Securities,
Warrants, shares of Preferred Stock and Depositary Shares are collectively
referred to herein as the "Securities".
The Company may issue Securities for proceeds up to an aggregate of
$2,000,000,000, or the equivalent thereof if any of the Securities are
denominated in a foreign currency or a foreign currency unit, including the
European Currency Unit ("ECU"). The Securities of each series will be offered
on terms determined at the time of sale. The Securities may be sold for U.S.
dollars, foreign currencies or foreign currency units, and the principal of,
and any interest on, the Debt Securities may be payable in U.S. dollars,
foreign currencies or foreign currency units.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Subordinated Securities will be
unsecured and subordinated as described under "Subordinated Securities".
Unless otherwise specified in the Prospectus Supplement relating to
Subordinated Securities, payment of the principal of Subordinated Securities
may be accelerated only in the case of certain events involving the bankruptcy
or insolvency of the Company, and no right of acceleration will exist in the
case of default in the payment of principal or interest or in the performance
of any covenant.
When a particular series of Securities, in respect of which this Prospectus
is being delivered, is offered, a supplement to this Prospectus (the
"Prospectus Supplement") setting forth certain terms of the offered Securities
will be delivered together with this Prospectus. The applicable Prospectus
Supplement, among other things and where applicable, will include: (i) with
regard to Debt Securities, the specific designation, priority, aggregate
principal amount, currency or currency unit, rate (or method of calculation)
and time of payment of any interest, authorized denominations, maturity,
offering price, place or places of payment, redemption terms, terms of any
repayment at the option of the holder, special provisions relating to Debt
Securities in bearer form, terms for sinking fund payments, terms for
conversion or exchange into other securities, provisions regarding original
issue discount securities and other terms of such Debt Securities; (ii) with
regard to Warrants, where applicable, the duration, aggregate amount, offering
price, exercise price, and detachability; (iii) with regard to Debt Warrants,
Preferred Stock Warrants and Common Stock Warrants, the applicable type and
amount of Securities covered thereby; (iv) with regard to Stock-Index Warrants
or Other Warrants, the applicable securities index or other items or indices
with respect to which such warrants shall apply and the method of determining
the cash value payable in connection with the exercise of such warrants; (v)
with regard to Currency Warrants, the currency to which U.S. Dollars will be
compared, the method of determining the cash value payable in connection with
the exercise of such Currency Warrants, the manner in which such Currency
Warrants may be exercised and any restrictions on exercise of such Currency
Warrants; (vi) with regard to Preferred Stock, the specific number of shares,
title, stated value and liquidation preference of each share, issuance price,
dividend rate or method of calculation, dividend periods, dividend payment
dates, any redemption or sinking fund provisions, any conversion or exchange
provisions, whether fractional interests in shares of Preferred Stock will be
offered through depositary arrangements and other specific terms of each series
of Preferred Stock; and (vii) in the case of Depositary Shares, the fraction of
a share of Preferred Stock which each such Depositary Share will represent.
The Prospectus Supplement will also contain information, where applicable,
about certain U.S. federal income tax considerations relating to, and any
listing on a securities exchange of, the Securities covered by the Prospectus
Supplement.
The Securities may be sold by the Company directly, through agents designated
from time to time, through underwriting syndicates led by one or more managing
underwriters or through one or more underwriters acting alone. If any agent of
the Company, or any underwriter, is involved in the sale of the Securities, the
name of such agent or underwriter, the principal or stated amount to be
purchased by it, any applicable commissions or discounts and the net proceeds
to the Company from such sale will be set forth in, or may be calculated from,
the Prospectus Supplement. The aggregate net proceeds to the Company from the
sale of all the Securities will be the public offering or purchase price of the
Securities sold less the aggregate of such commissions and discounts and other
expenses of issuance and distribution. An affiliate of the Company may from
time to time act as an agent or underwriter in connection with the sale of
Securities to the extent permitted by applicable law. See "Plan of
Distribution".
This Prospectus and applicable Prospectus Supplement may be used by First
Chicago Capital Markets, Inc. ("FCCM"), a wholly owned subsidiary of the
Company, in connection with offers and sales related to secondary market
transactions in the Securities to the extent permitted by applicable law. FCCM
may act as principal or agent in such transactions. Such sales will be made at
prices related to the prevailing market prices at the time of sale.
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF A
BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK
INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1995.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING MADE
HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANOTHER PERSON.
THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN
SUCH JURISDICTION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Information, as of particular dates, concerning
directors and executive officers, their compensation, options granted to them,
the principal holders of securities of the Company and any material interest
of such persons in transactions with the Company is disclosed in proxy
statements distributed to stockholders of the Company and filed with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the Public Reference Room of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and the Commission's Regional
Offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
Seven World Trade Center (13th Floor), New York, New York 10048. Copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, such reports, proxy statements and other material
concerning the Company can be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York; the Chicago Stock Exchange, 440
South LaSalle Street, Chicago, Illinois; and the Pacific Stock Exchange, 301
Pine Street, San Francisco, California.
The Company has filed with the Commission a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities being offered by this Prospectus. This Prospectus does not contain
all the information set forth in the Registration Statement, certain portions
of which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to the Company and the
Securities, reference is made to the Registration Statement, including the
exhibits thereto. The Registration Statement may be inspected by anyone
without charge at the principal office of the Commission in Washington, D.C.
and copies of all or any part of it may be obtained from the Commission upon
payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
pursuant to Section 13 of the Exchange Act are incorporated herein by
reference:
(i) The Company's Current Reports on Form 8-K dated December 4, 1995,
December 8, 1995, January 16, 1996 and January 26, 1996.
The following documents heretofore filed by NBD Bancorp, Inc. ("NBD") (File
No. 1-7127) with the Commission pursuant to Section 13 of the Exchange Act are
incorporated herein by reference:
(i) NBD's Annual Report on Form 10-K for the fiscal year ended December
31, 1994;
(ii) NBD's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1995, June 30, 1995 and September 30, 1995;
(iii) NBD's Current Reports on Form 8-K dated July 19, 1995, July 21,
1995, August 15, 1995, September 21, 1995, November 10, 1995, November 14,
1995 and December 1, 1995;
(iv) NBD's Registration Statement on Form S-4 (Registration No. 33-
62713); and
2
<PAGE>
(v) The description of NBD common stock set forth in NBD's registration
statement filed pursuant to Section 12 of the Exchange Act and any
amendment or report filed with the Commission for the purpose of updating
such description.
The following documents heretofore filed by First Chicago Corporation
("First Chicago") (File No. 1-6502) with the Commission pursuant to Section 13
of the Exchange Act are incorporated herein by reference:
(i) First Chicago's Annual Report on Form 10-K for the year ended
December 31, 1994;
(ii) First Chicago's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995, June 30, 1995 and September 30, 1995; and
(iii) First Chicago's Current Reports on Form 8-K dated January 17, 1995,
April 17, 1995, July 14, 1995, July 17, 1995, July 19, 1995, July 21, 1995,
August 15, 1995, October 16, 1995, October 20, 1995, November 7, 1995,
November 10, 1995, November 14, 1995 and December 1, 1995.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN, EXCEPT FOR THE EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS).
REQUESTS SHOULD BE ADDRESSED TO FIRST CHICAGO NBD CORPORATION, ONE FIRST
NATIONAL PLAZA, CHICAGO, ILLINOIS 60670, ATTENTION: INVESTOR RELATIONS (312)
732-4812.
FIRST CHICAGO NBD CORPORATION
GENERAL
The Company is a multi-bank holding company registered under the Bank
Holding Company Act, as amended ("the "BHC Act"), which was incorporated under
the laws of the State of Delaware in 1972. The Company is the surviving
corporation resulting from the merger (the "Merger"), effective December 1,
1995, of First Chicago, a Delaware corporation and registered bank holding
company, with and into NBD, a Delaware corporation and registered bank holding
company. The Company's lead bank is The First National Bank of Chicago
("FNBC"). The Company also is the parent corporation of NBD Bank, Detroit,
Michigan ("NBD Michigan"), American National Bank and Trust Company of Chicago
("ANB"), FCC National Bank ("FCCNB") and NBD Bank, N.A., Indianapolis, Indiana
("NBD Indiana"). FCCNB is a Delaware-based national banking association
primarily engaged in the issuance of VISA and MasterCard credit cards.
Through its banking subsidiaries, the Company provides domestic retail
banking, worldwide corporate and institutional banking, and trust and
investment management services. In addition, the Company, directly or
indirectly, owns the stock of various nonbank companies engaged in businesses
related to banking and finance, including venture capital, leasing, investment
management, mortgage lending and servicing, insurance, community development,
discount brokerage and data processing activities.
In addition to its equity investment in subsidiaries, the Company, directly
or indirectly, raises funds principally to finance the operations of its
nonbank subsidiaries. A substantial portion of the Company's annual income
typically has been derived from dividends from its subsidiaries, and from
interest on loans, some of which are subordinated, to its subsidiaries.
Because the Company is a holding company, its rights and the rights of its
creditors, including the holders of the Debt Securities, to participate in the
assets of any subsidiary upon the subsidiary's liquidation or recapitalization
would be subject to the prior claims of such subsidiary's creditors except to
the extent that the Company may itself be a creditor with recognized claims
against the subsidiary.
3
<PAGE>
The Company's executive offices are located at One First National Plaza,
Chicago, Illinois 60670, and the telephone number is (312) 732-4000.
SUPERVISION AND REGULATION
The operations of financial institutions may be affected by legislative
changes and by the policies of various regulatory authorities. In particular,
bank holding companies and their subsidiaries are affected by the credit
policies of the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") through its regulation of the national supply of bank credit.
Among the instruments of monetary policy used by the Federal Reserve Board to
implement its objectives are open market operations in U.S. Government
securities, changes in the discount rate on bank borrowings and changes in
reserve requirements on bank deposits.
Bank holding companies, banks and financial institutions generally are
highly regulated, with numerous federal and state laws and regulations
governing their activities. As a bank holding company, the Company is subject
to regulation under the BHC Act and is subject to examination and supervision
by the Federal Reserve Board. Under the BHC Act, the Company is prohibited,
with certain exceptions, from acquiring or retaining direct or indirect
ownership or control of voting shares of any company which is not a bank or
bank holding company, and from engaging in activities other than those of
banking or of managing or controlling banks, other than subsidiary companies
and activities which the Federal Reserve Board determines to be so closely
related to the business of banking as to be a proper incident thereto. The
acquisition of direct or indirect ownership or control of a bank or bank
holding company by the Company is also subject to certain restrictions under
the BHC Act and applicable state laws.
The Company is a legal entity separate and distinct from the Company's
banking subsidiaries (the "Banks") and the Company's other affiliates.
Investors should be aware of the various legal limitations on the extent to
which the Banks can finance or otherwise supply funds to the Company or
various of its affiliates. In particular, the Banks are subject to certain
restrictions imposed by the laws of the United States on any extensions of
credit to the Company or, with certain exceptions, other affiliates, on
investments in stock or other securities thereof, on the taking of such
securities as collateral for loans, and on the terms of transactions between
the Banks and other subsidiaries. The Company and its subsidiaries, including
the Banks, are also subject to certain restrictions with respect to engaging
in the issuance, flotation, underwriting, public sale or distribution of
securities.
Various federal and state laws govern the operations of the Banks. The
national bank subsidiaries of the Company, including FNBC, ANB, FCCNB and NBD
Indiana, are supervised, examined and regulated by the Office of the
Comptroller of the Currency (the "Comptroller") under the National Bank Act,
as amended. Since national banks are also members of the Federal Reserve
System and their deposits are insured by the Federal Deposit Insurance
Corporation (the "FDIC"), they are also subject to the applicable provisions
of the Federal Reserve Act, as amended, and the Federal Deposit Insurance Act,
as amended, and, in certain respects, to state laws applicable to financial
institutions. NBD Michigan and the other state-chartered bank subsidiaries of
the Company are, in general, subject to the same or similar restrictions and
regulations, but with more extensive regulation and examination by state
banking departments, the Federal Reserve Board for state banks which are
members of the Federal Reserve System, and the FDIC for state banks which are
not members of the Federal Reserve System. In addition, the Banks' operations
in other countries are subject to various restrictions imposed by the laws of
such countries.
Federal law prohibits the Company and certain of its affiliates from
borrowing from the Banks without the prior approval of the respective Bank's
Board of Directors and unless such loans are secured by U.S. Treasury or other
specified obligations. Further, such secured loans and investments by any of
the Banks are limited in amount as to the Company or any other such affiliate
to 10% of the respective Bank's capital and surplus and as to the Company and
all such affiliates to an aggregate 20% of the respective Bank's capital and
surplus. Under Federal Reserve Board policy, the Company is expected to act as
a source of financial strength to each Bank and to commit resources to support
such Bank in circumstances where it might not do so absent such policy. In
addition, any capital loans by the Company to any of the Banks would be
subordinate in right of payment to deposits and to certain other indebtedness
of such Bank.
4
<PAGE>
Additionally, there are certain federal and state regulatory limitations on
the payment of dividends to the Company by the Banks. Dividend payments by
national banks are limited to the lesser of (i) the level of "undivided
profits then on hand" less the amount of bad debts, as defined, in excess of
the allowance for credit losses and (ii) absent regulatory approval, an amount
not in excess of "net profits" for the current year combined with "retained
net profits" for the preceding two years. As of January 1, 1995, the Banks
could have declared additional dividends of approximately $1.553 billion
without the approval of banking regulatory agencies. The payment of dividends
by any Bank may also be affected by other factors, such as the maintenance of
adequate capital for such Bank. Bank regulatory agencies have the authority to
prohibit the banking organizations they supervise from paying dividends if, in
the bank regulator's opinion, the payment of dividends would, in light of the
financial condition of such bank, constitute an unsafe or unsound practice.
As a bank holding company, the Company and its subsidiaries are prohibited
from engaging in certain tie-in arrangements in connection with extensions of
credit or providing property or services.
CAPITAL ADEQUACY
The Federal Reserve Board has adopted risk-based capital guidelines for bank
holding companies that require bank holding companies to maintain a minimum
ratio of total capital to risk-weighted assets (including certain off-balance-
sheet items, such as standby letters of credit) of 8%. At least half of total
capital must be composed of common stockholders' equity, noncumulative
perpetual preferred stock and a limited amount of cumulative perpetual
preferred stock, less disallowed intangibles and other adjustments (primarily
goodwill) ("Tier I capital"). The remainder ("Tier II capital") may consist of
subordinated debt, other preferred stock, certain other instruments and a
limited amount of loan loss reserves. At September 30, 1995, the Company's
consolidated Tier I capital and total capital ratios were 8.2% and 12.4%,
respectively.
In addition, the Federal Reserve Board has established minimum leverage
ratio guidelines for bank holding companies. These guidelines provide for a
minimum ratio of Tier I capital to total average assets (the "leverage ratio")
of 3% for bank holding companies that meet certain specified criteria,
including those having the highest regulatory rating. All other bank holding
companies generally are required to maintain a leverage ratio of at least 3%
plus an additional cushion of 100 to 200 basis points. The Company's leverage
ratio at September 30, 1995, was 6.9%. The guidelines also provide that bank
holding companies experiencing internal growth or making acquisitions will be
expected to maintain strong capital positions substantially above the minimum
supervisory levels without significant reliance on intangible assets.
Furthermore, the Federal Reserve Board has indicated that it will consider a
"tangible Tier I capital leverage ratio" (deducting all intangibles) and other
indicia of capital strength in evaluating proposals for expansion or new
activities.
Each of the Banks is subject to similar risk-based and leverage capital
requirements adopted by its applicable federal banking agency. Each of the
Company's Banks was in compliance with the applicable minimum capital
requirements as of September 30, 1995. Neither the Company nor any of the
Banks has been advised by any federal banking agency of any specific minimum
leverage ratio requirement applicable to it.
Failure to meet capital requirements could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business, which are described below
under "FDICIA and FIRREA".
Bank regulators continue to indicate their desire to raise capital
requirements applicable to banking organizations beyond their current levels.
However, the management of the Company is unable to predict whether higher
capital requirements would be imposed and, if so, at what levels and on what
schedule.
FDICIA AND FIRREA
The Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
significantly expanded the regulatory and enforcement powers of federal
banking regulators, in particular the FDIC, and has important consequences for
the Company, the Banks and other depository institutions located in the United
States.
A major feature of FDICIA is the comprehensive directions it gives to
federal banking regulators to promptly direct or require the correction of
problems at inadequately capitalized banks in the manner that is least costly
to the federal deposit insurance funds. The degree of corrective regulatory
involvement in the operations
5
<PAGE>
and management of banks and their holding companies is, under FDICIA, largely
determined by the actual or anticipated capital positions of the subject
institution.
FDICIA established five tiers of capital measurement for regulatory purposes
ranging from "well capitalized" to "critically undercapitalized." Under
regulations adopted by the federal banking agencies, a depository institution
is well capitalized if it significantly exceeds the minimum level required by
regulation for each relevant capital measure, adequately capitalized if it
meets such measure, undercapitalized if it fails to meet any such measure,
significantly undercapitalized if it is significantly below such measure and
critically undercapitalized if its tangible equity is not greater than 2% of
total tangible assets. A depository institution may be deemed to be in a
capitalization category lower than is indicated by its actual capital position
if it receives an unsatisfactory examination rating. FDICIA requires banking
regulators to take increasingly strong corrective steps, based on the capital
tier of any subject bank, to cause such bank to achieve and maintain capital
adequacy. Even if a bank is adequately capitalized, however, the banking
regulators are authorized to apply corrective measures if the bank is
determined to be in an unsafe or unsound condition or engaging in an unsafe or
unsound activity.
Depending on the level of capital of an insured depository institution, the
banking regulatory agencies' corrective powers can include: requiring a
capital restoration plan; placing limits on asset growth and restrictions on
activities; requiring the institution to reduce total assets; requiring the
institution to issue additional stock (including voting stock) or to be
acquired; placing restrictions on transactions with affiliates; restricting
the interest rate the institution may pay on deposits; ordering a new election
for the institution's board of directors; requiring that certain senior
executive officers or directors be dismissed; prohibiting the institution from
accepting deposits from correspondent banks; requiring the institution to
divest certain subsidiaries; prohibiting the payment of principal or interest
on subordinated debt; prohibiting the institution's parent bank holding
company from making capital distributions without prior regulatory approval;
and, ultimately, appointing a receiver for the institution.
If the insured depository institution is undercapitalized, the parent bank
holding company is required to guarantee that the institution will comply with
any capital restoration plan submitted to, and approved by, the appropriate
federal banking agency in an amount equal to the lesser of (i) 5% of the
institution's total assets at the time the institution became undercapitalized
or (ii) the amount which is necessary (or would have been necessary) to bring
the institution into compliance with all applicable capital standards as of
the time the institution fails to comply with the capital restoration plan. If
such parent bank holding company guarantee is not obtained, the capital
restoration plan may not be accepted by the banking regulators. As a result,
such institution would be subject to the more severe restrictions imposed on
significantly undercapitalized institutions. Further, the failure of such a
depository institution to submit an acceptable capital plan is grounds for the
appointment of a conservator or receiver.
FDICIA also contains a number of other provisions affecting depository
institutions, including additional reporting and independent auditing
requirements, the establishment of safety and soundness standards, the
changing of FDIC insurance premiums from flat amounts to the system of risk-
based assessments described below under "FDIC Insurance," a review of
accounting standards, and supplemental disclosures and limits on the ability
of all but well capitalized depository institutions to acquire brokered
deposits. The Riegle-Community Development and Regulatory Improvement Act of
1994, however, among other things, contains a number of specific provisions
easing the regulatory burden on banks and bank holding companies, including
some imposed by FDICIA, and making the bank regulatory system more efficient.
Federal banking regulators are taking actions to implement these provisions.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
("FIRREA"), among other things, provides generally that, upon the default of
any bank of a multi-unit holding company, the FDIC may assess an affiliated
insured depository institution for the estimated losses incurred by the FDIC.
Specifically, FIRREA provides that a depository institution insured by the
FDIC can be held liable for any loss incurred by, or reasonably expected to be
incurred ~by, the FDIC, in connection with (i) the default of a commonly
controlled FDIC-insured depository institution or (ii) any assistance provided
by the FDIC to a commonly controlled FDIC-insured depository institution in
danger of a default. "Default" is defined generally as the appointment of a~
conservator or receiver. "In danger of a default" is defined generally as the
existence of certain conditions
6
<PAGE>
indicating that a default is likely to occur in the absence of regulatory
assistance. All of the Banks are FDIC-insured depository institutions.
FDIC INSURANCE
The Banks are subject to FDIC deposit insurance assessments. Under the
FDIC's risk-based assessment system effective January 1, 1994, the assessment
rate is based on classification of a depository institution in one of nine
risk assessment categories. Such classification is based upon the
institution's capital level and upon certain supervisory evaluations of the
institution by its primary regulator. The assessment rate schedule, effective
January 1, 1996, creates a 0.27% spread in assessment rates, ranging from
0.27% per annum on the amount of domestic deposits for banks classified as
weakest by the FDIC down to the statutory annual minimum of $2,000 for banks
classified as strongest by the FDIC.
INTERSTATE BANKING AND BRANCHING
The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 (the
"Riegle-Neal Act") significantly revised prior laws applicable to interstate
acquisitions of banks and bank holding companies and the branching powers of
national banks. Prior to the Riegle-Neal Act, the Federal Reserve Board was
not permitted to approve an application to acquire shares of a bank located
outside the state in which the operations of the applicant's bank subsidiaries
were principally conducted unless the acquisition were specifically authorized
by a statute of the acquired bank's state. Effective September 29, 1995, the
Federal Reserve Board is authorized to approve an application of an adequately
capitalized and adequately managed bank holding company to acquire control of
a bank located in another state without regard to whether such transaction is
prohibited under the law of such state. The Federal Reserve Board may not,
however, approve such an application if, following the acquisition, the
applicant would control either (1) more than 10% of all insured depository
institution deposits in the United States or (2) under certain circumstances,
30% or more of all insured depository institution deposits in any state where
either the applicant or the acquired bank is located. The 30% limit on
aggregate deposits that may be controlled by an applicant can be adjusted by
the states on a non-discriminatory basis.
The Riegle-Neal Act also revises the rules applicable to mergers between
insured banks located in different states. Before passage of the Riegle-Neal
Act, such mergers generally were not authorized. Commencing June 1, 1997,
however, adequately capitalized and adequately managed insured banks in
different states may merge without regard to whether the merger is authorized
under the law of any state. States may elect to prohibit interstate bank
mergers or may elect to permit early interstate bank mergers by adopting,
prior to June 1, 1997, legislation that expressly so provides, and that
applies on equal terms to all out-of-state banks. The Riegle-Neal Act provides
that an interstate merger involving the acquisition of a branch (as
distinguished from an entire bank) or the de novo establishment of a national
bank branch in another state may be approved only if the law of the host state
expressly permits such action. An interstate merger may not be approved if,
following the merger, the resulting bank would control (1) more than 10% of
all insured depository institution deposits in the United States or (2) under
certain circumstances, 30% or more of all insured depository institution
deposits in any state where the resulting bank will be located. The 30% limit
on aggregate deposits that may be controlled by the resulting bank can be
adjusted by the states on a non-discriminatory basis. The laws of the host
state regarding community reinvestment, consumer protection, fair lending and
the establishment of intrastate branches will apply to any out-of-state branch
of a national bank unless preempted by federal law or the Comptroller
determines that application of such laws would have a discriminatory effect on
the national bank.
The Riegle-Neal Act contains a number of other provisions related to banks
and bank holding companies, including: authorization of interstate branching
by foreign banks; additional branch closing notice requirements for interstate
banks proposing to close a branch in a low or moderate income area; amendments
to the Community Reinvestment Act of 1977 to require separate written
evaluations of an insured depository institution
7
<PAGE>
for each state in which it maintains branches; a prohibition on interstate
banks maintaining out-of-state deposit production offices; and authorization
for a bank subsidiary of a bank holding company to receive deposits, renew
time deposits, close and service loans and receive payments on loans as agent
for a depository institution affiliate of such bank.
The extent to, and terms on, which full interstate branching and certain
other actions authorized under the Riegle-Neal Act are implemented will depend
on the actions of entities other than the Company and the Banks, including the
legislatures of the various states. Further developments by state and federal
authorities, including legislation, with respect to matters covered by the
Riegle-Neal Act reasonably can be anticipated to occur in the future. In
addition, there may be new, significant banking legislation introduced in the
current Congress related to bank holding companies and their powers; the
likelihood of passage and effect, if any, of such legislation on the Company
and the Banks cannot be predicted.
The Illinois Bank Holding Company Act (the "Illinois Act") provides that any
out-of-state bank holding company whose principal place of business is in a
state that grants Illinois-based bank holding companies reciprocal authority
may acquire control of an Illinois bank or bank holding company. The approval
of the Illinois Commissioner of Banks and Trust Companies is required to
complete such an interstate acquisition in Illinois. The Illinois Act also
permits intrastate acquisitions throughout Illinois by Illinois-based bank
holding companies. All interstate and intrastate bank acquisitions by the
Company are subject to the approval of the Federal Reserve Board.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for the Company, which are computed
on the basis of the total enterprise (as defined by the Commission) by
dividing earnings before fixed charges and income taxes by fixed charges, are
set forth below for the periods indicated. Also set forth below are the ratios
of earnings to combined fixed charges and preferred stock dividends, which are
computed on the basis of the total enterprise by dividing earnings before
fixed charges and income taxes by fixed charges and preferred stock dividend
requirements for the periods indicated. Fixed charges consist principally of
interest expense on all long- and short-term borrowings, excluding or
including interest on deposits as indicated. The ratios below are computed on
a combined basis for both First Chicago and NBD.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------- -------------
1994 1993 1992 1991 1990 1995
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding interest expense on de-
posits........................... 2.2x 3.0x 1.3x 1.6x 1.6x 1.9x
Including interest expense on de-
posits........................... 1.6x 1.8x 1.1x 1.1x 1.1x 1.4x
Earnings to Combined Fixed Charges
and Preferred Dividends:
Excluding interest expense on de-
posits........................... 2.1x(1) 2.7x 1.2x 1.5x 1.5x 1.8x
Including interest expense on de-
posits........................... 1.5x(1) 1.7x 1.1x 1.1x 1.1x 1.4x
</TABLE>
- --------
(1) For 1994, preferred dividends include a $4.5 million premium related to
the redemption of the 10% Cumulative Preferred Stock, Series D of First
Chicago.
USE OF PROCEEDS
Unless otherwise provided in the Prospectus Supplement, the Company will use
the net proceeds from the sale of the Securities for general corporate
purposes, including the funding of investments in, or extensions of credit to,
the Company's subsidiaries. Pending the uses described above, the Company may
temporarily invest the net proceeds from the sale of the Securities in various
short-term securities or apply the net proceeds to
8
<PAGE>
reduce short-term indebtedness. Based upon the historic and anticipated future
growth of the Company and the financial needs of its subsidiaries, the Company
anticipates that it will, on a recurrent basis, engage in additional
financings in character and amount to be determined.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will constitute either Senior Securities or Subordinated
Securities. The Senior Securities will be issued under an Indenture dated as
of December 1, 1995 (the "Senior Indentures"), between the Company and Marine
Midland Bank, as Trustee ("Marine Midland"). The Subordinated Securities will
be issued under an Indenture dated as of December 1, 1995 (the "Subordinated
Indenture"), between the Company and The Chase Manhattan Bank (National
Association), as Trustee ("Chase"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures". References
to the "Trustee" shall mean Marine Midland or Chase, as applicable. The
statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be complete and are qualified
in their entirety by reference to the applicable Indenture, copies of which
are exhibits to the Registration Statement. Whenever defined terms are used
but not defined herein, such terms shall have the meanings ascribed to them in
the applicable Indenture, it being intended that such defined terms shall be
incorporated herein by reference.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any Debt Securities
and the extent, if any, to which such general provisions may apply to such
Debt Securities will be described in the Prospectus Supplement relating to
such Debt Securities.
None of the Indentures limits the amount of Debt Securities which may be
issued thereunder, and each Indenture provides that Debt Securities of any
series may be issued thereunder up to the aggregate principal amount which may
be authorized from time to time by the Company and may be denominated in any
currency or currency unit designated by the Company. Neither the Indentures
nor the Debt Securities will limit or otherwise restrict the amount of other
indebtedness which may be incurred or the other securities which may be issued
by the Company or any of its subsidiaries.
Debt Securities of a series may be issuable in registered form without
coupons ("Registered Securities"), in bearer form with or without coupons
attached ("Bearer Securities") or in the form of one or more global securities
in registered or bearer form (each a "Global Security"). Bearer Securities, if
any, will be offered only to non-United States persons and to offices located
outside the United States of certain United States financial institutions.
Reference is made to the Prospectus Supplement for a description of the
following terms, where applicable, of each series of Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of such
Debt Securities; (2) the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of such Debt Securities; (3) the
priority of payment of such Debt Securities; (4) the price or prices (which
may be expressed as a percentage of the aggregate principal amount thereof) at
which the Debt Securities will be issued; (5) the date or dates on which the
principal of the Debt Securities will be payable; (6) the rate or rates (which
may be fixed or variable) per annum at which such Debt Securities will bear
interest, if any, or the method of determining the same; (7) the date or dates
from which such interest, if any, on the Debt Securities will accrue, the date
or dates on which such interest, if any, will be payable, the date or dates on
which payment of such interest, if any, will commence and the Regular Record
Dates for such Interest Payment Dates; (8) the extent to which any of the Debt
Securities will be issuable in temporary or permanent global form, or the
manner in which any interest payable on a temporary or permanent global Debt
Security will be paid; (9) each office or agency where, subject to the terms
of the applicable Indenture, the Debt Securities may be presented for
registration of transfer or exchange; (10) the place or places where the
principal of (and premium, if any) and interest, if any,
9
<PAGE>
on the Debt Securities will be payable; (11) the date or dates, if any, after
which such Debt Securities may be redeemed or purchased in whole or in part,
at the option of the Company or mandatorily pursuant to any sinking, purchase
or analogous fund or may be required to be purchased or redeemed at the option
of the holder, and the redemption or repayment price or prices thereof; (12)
the denomination or denominations in which such Debt Securities are authorized
to be issued; (13) the currency, currencies or units (including ECU) based on
or related to currencies for which the Debt Securities may be purchased and
the currency, currencies or currency units (including ECU) in which the
principal of, premium, if any, and any interest on such Debt Securities may be
payable; (14) any index used to determine the amount of payments of principal
of, premium, if any, and interest on the Debt Securities; (15) whether any of
the Debt Securities are to be issuable as Bearer Securities and/or Registered
Securities, and if issuable as Bearer Securities, any limitations on issuance
of such Bearer Securities and any provisions regarding the transfer or
exchange of such Bearer Securities (including exchange for registered Debt
Securities of the same series); (16) the payment of any additional amounts
with respect to the Debt Securities; (17) whether any of the Debt Securities
will be issued as Original Issue Discount Securities (as defined below); (18)
information with respect to book-entry procedures, if any; (19) the terms, if
any, upon which the Debt Securities may be convertible into or exchanged for
Common Stock, Preferred Stock (which may be represented by Depositary Shares),
other Debt Securities, Debt Warrants, Common Stock Warrants or Preferred Stock
Warrants or any other securities of the Company and the terms and conditions
upon which such conversion or exchange will be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period and
any other provision in addition to or in lieu of those described herein; (20)
any additional covenants or Events of Default not currently set forth in the
applicable Indenture; and (21) any other terms of such Debt Securities not
inconsistent with the provisions of the applicable Indenture.
If any of the Debt Securities are sold for one or more foreign currencies or
foreign currency units or if the principal of, premium, if any, or interest on
any series of Debt Securities is payable in one or more foreign currencies or
foreign currency units, the restrictions, elections, tax consequences,
specific terms and other information with respect to such issue of Debt
Securities and such currencies or currency units will be set forth in the
Prospectus Supplement relating thereto.
Debt Securities may be issued as original issue discount Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) ("Original Issue Discount Securities"), to be sold at a
substantial discount below the stated principal amount thereof due at the
stated maturity of such Debt Securities. There may not be any periodic
payments of interest on Original Issue Discount Securities as defined herein.
In the event of an acceleration of the maturity of any Original Issue Discount
Security, the amount payable to the holder of such Original Issue Discount
Security upon such acceleration will be determined in accordance with the
Prospectus Supplement, the terms of such security and the Indenture, but will
be an amount less than the amount payable at the maturity of the principal of
such Original Issue Discount Security. Federal income tax considerations with
respect to Original Issue Discount Securities will be set forth in the
Prospectus Supplement relating thereto.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities will be issued only as Registered Securities. If Bearer Securities
are issued, the United States Federal income tax consequences and other
special considerations, procedures and limitations applicable to such Bearer
Securities will be described in the Prospectus Supplement relating thereto.
Debt Securities issued as Registered Securities will be without coupons.
Debt Securities issued as Bearer Securities shall have interest coupons
attached, unless issued as zero coupon securities.
Registered Securities (other than a Global Security) may be presented for
transfer (with the form of transfer endorsed thereon duly executed) or
exchanged for other Debt Securities of the same series at the office of the
Note Registrar specified according to the terms of the applicable Indenture.
The Company has agreed in each of the Indentures that, with respect to
Registered Securities having The City of New York as a place of payment,
10
<PAGE>
the Company will appoint a Note Registrar or Co-Note Registrar located in The
City of New York for such transfer or exchange. Such transfer or exchange
shall be made without service charge, but the Company may require payment of
any taxes or other governmental charges as described in the applicable
Indenture. Provisions relating to the exchange of Bearer Securities for other
Debt Securities of the same series (including, if applicable, Registered
Securities) will be described in the applicable Prospectus Supplement. In no
event, however, will Registered Securities be exchangeable for Bearer
Securities.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on
behalf of, a depositary (the "Depositary") identified in the Prospectus
Supplement relating to such series. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent form. Unless
and until it is exchanged in whole or in part for the individual Debt
Securities represented thereby, a Global Security may not be transferred
except as a whole by the Depositary for such Global Security to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by the Depositary or any nominee to a
successor Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities and certain limitations and restrictions relating to a series
of Bearer Securities in the form of one or more Global Securities, will be
described in the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such Depositary. Such accounts shall be designated by the
underwriters or agents with respect to such Debt Securities. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants).
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of any such Debt Securities of such series in definitive
form and will not be considered the owners or holders thereof under the
Indenture governing such Debt Securities.
Payments of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. Neither the Company, the Trustee for such
Debt Securities, any Paying Agent, nor the Note Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
11
<PAGE>
Subject to certain restrictions relating to Bearer Securities, the Company
expects that the Depositary for a series of Debt Securities or its nominee,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security representing any of such Debt Securities will credit
participants' accounts immediately with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such Global
Security for such Debt Securities as shown on the records of such Depositary
or its nominee. The Company also expects that payments by participants to
owners of beneficial interests in such Global Security held through such
participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such payments will be
the responsibility of such participants. With respect to owners of beneficial
interests in a temporary Global Security representing Bearer Securities,
receipt by such beneficial owners of payments of principal, premium or
interest in respect thereof will be subject to additional restrictions.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, the Company will issue individual
Debt Securities of such series in definitive form in exchange for the Global
Security representing such series of Debt Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities,
determine not to have any Debt Securities of a series represented by one or
more Global Securities and, in such event, will issue individual Debt
Securities of such series in definitive form in exchange for the Global
Security or Securities representing such series of Debt Securities. Further,
if the Company so specifies with respect to the Debt Securities of a series,
an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company, Trustee and
the Depositary for such Global Security, receive Debt Securities of such
series in definitive form in exchange for such beneficial interests, subject
to any limitations described in the Prospectus Supplement relating to such
Debt Securities. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery in definitive form of
Debt Securities of the series represented by such Global Security equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name (if the Debt Securities of such series are issuable as
Registered Securities). Debt Securities of such series so issued in definitive
form will be issued (a) as Registered Securities in denominations, unless
otherwise specified by the Company, of $1,000 and integral multiples thereof
if the Debt Securities of such series are issuable as Registered Securities,
(b) as Bearer Securities in the denomination, unless otherwise specified by
the Company, of $5,000 if the Debt Securities of such series are issuable as
Bearer Securities or (c) as either Registered or Bearer Securities, if the
Debt Securities of such series are issuable in either form. Certain
restrictions may apply, however, on the issuance of a Bearer Security in
definitive form in exchange for an interest in a Global Security.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Registered Securities
will be made at the office of such Paying Agent or Paying Agents as the
Company may designate from time to time, except that, at the option of the
Company, payment of any interest may be made (i) by check mailed to the
address of the person entitled thereto as such address shall appear in the
applicable Note Register or (ii) by wire transfer to an account maintained by
the person entitled thereto as specified in the applicable Note Register.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
any installment of interest on Registered Securities will be made to the
person in whose name such Debt Security is registered at the close of business
on the Regular Record Date for such payment.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Bearer Securities will
be payable, subject to any applicable laws and regulations, at the offices of
such Paying Agents outside the United States as the Company may designate from
time to time, at the option of the Holder, by check or by transfer to an
account maintained by the payee with a bank located outside the United States.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
interest on Bearer Securities will be made only against surrender of the
coupon relating to such Interest Payment Date. No
12
<PAGE>
payment with respect to any Bearer Security will be made at any office or
agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank
located in the United States.
LEVERAGED AND OTHER TRANSACTIONS
Each Indenture and the Debt Securities do not contain, among other things,
provisions which would afford holders of the Debt Securities protection in the
event of a highly leveraged or other transaction involving the Company which
could adversely affect the holders of Debt Securities.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
Each Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Debt
Securities of each affected series, modifications and alterations of such
Indenture may be made which affect the rights of the holders of such Debt
Securities; provided, however, that no such modification or alteration may be
made without the consent of the holder of each Debt Security so affected which
would, among other things, (i) change the maturity of the principal of, or of
any installment of interest (or premium, if any) on, any Debt Security issued
pursuant to such Indenture, or reduce the principal amount thereof or any
premium thereon, or change the method of calculation of interest or the
currency of payment of principal or interest (or premium, if any) on, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or with respect to any such
Debt Security, or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof; or (ii) reduce the above-stated percentage in principal amount of
outstanding Debt Securities required to modify or alter such Indenture.
CONVERTIBLE DEBT SECURITIES
Certain Debt Securities (the "Convertible Debt Securities") may be
convertible into other Securities of the Company. The holders of such
Convertible Debt Securities of a specified series may be entitled or, if so
provided in the applicable Prospectus Supplement, may be required at such time
or times specified in the applicable Prospectus Supplement, subject to prior
redemption, repayment or repurchase, to convert any Convertible Debt
Securities of such series (in denominations set forth in the applicable
Prospectus Supplement) into Common Stock, Preferred Stock, Common Stock
Warrants, Preferred Stock Warrants, another series of Debt Securities, Debt
Warrants or Depositary Shares, as the case may be, (collectively, the
foregoing securities into which the Convertible Debt Securities may convert
are referred to herein as "Conversion Securities") at the conversion price set
forth in the applicable Prospectus Supplement, subject to adjustment as
described below, and in the applicable Prospectus Supplement. The relevant
provisions for each series of Convertible Debt Securities will be set forth in
the applicable Prospectus Supplement. Except as described below or in the
applicable Prospectus Supplement, no adjustment will be made upon conversion
of any Convertible Debt Securities for interest accrued thereon or for
dividends on any Conversion Securities issued. If any Convertible Debt
Securities not called for redemption are converted between a Regular Record
Date for the payment of interest and the next succeeding Interest Payment
Date, such Convertible Debt Securities must be accompanied by funds equal to
the interest payable on such succeeding Interest Payment Date on the principal
amount so converted. The Company is not required to issue fractional shares of
Common Stock or Preferred Stock upon conversion of Convertible Debt Securities
that are convertible into Common Stock or Preferred Stock, respectively, and,
in lieu thereof, will pay a cash adjustment, in the case of Convertible Debt
Securities convertible into Common Stock, based upon the market value of the
Common Stock, and in the case of Convertible Debt Securities convertible into
Preferred Stock, based upon the liquidation preference of such series of
Preferred Stock, unless otherwise specified in the Prospectus Supplement. In
the case of Convertible Debt Securities convertible into securities other than
Common Stock or Preferred Stock, such adjustment will be based on such method
as is set forth in the Prospectus Supplement.
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The conversion price for a series of Convertible Debt Securities that are
convertible into Common Stock is subject to adjustment upon the occurrence of
certain events under formulas that will be set forth in the applicable
Prospectus Supplement.
In the event of a taxable distribution to holders of Common Stock or
Preferred Stock (or other transaction) which results in any adjustment of the
conversion price of Convertible Debt Securities that are convertible into
Common Stock or Preferred Stock, the holders of such Convertible Debt
Securities may, in certain circumstances, be deemed to have received a
distribution subject to United States Federal income tax as a dividend; in
certain other circumstances, the absence of such an adjustment may result in a
taxable dividend to the holders of Common Stock or Preferred Stock acquired
upon conversion of such Convertible Debt Securities.
CONSOLIDATION, MERGER OR SALE OF ASSETS
Each Indenture provides that the Company may, without the consent of the
holders of any of the Debt Securities outstanding under the applicable
Indenture, consolidate with, merge into or transfer its assets substantially
as an entirety to any person, provided that (i) any such successor assumes the
Company's obligations on the applicable Debt Securities and under the
applicable Indenture, (ii) after giving effect thereto, no Event of Default
(as defined in the Senior Indenture) in the case of the Senior Securities, or
Default (as defined in the Subordinated Indenture) in the case of the
Subordinated Securities, shall have happened and be continuing and (iii)
certain other conditions under the applicable Indenture are met. Accordingly,
any such consolidation, merger or transfer of assets substantially as an
entirety, which meets the conditions described above, would not create any
Event of Default or Default which would entitle holders of the Debt
Securities, or the Trustee on their behalf, to take any of the actions
described below under "Senior Securities--Events of Default, Waivers, etc." or
"Subordinated Securities--Events of Default, Waivers, etc."
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the Company
and will rank pari passu with all outstanding unsecured senior indebtedness of
the Company.
EVENTS OF DEFAULT, WAIVERS, ETC.
An Event of Default with respect to Senior Securities of any series is
defined in the Senior Indenture as (i) default in the payment of principal of
or premium, if any, on any of the Senior Securities of that series outstanding
under the Senior Indenture when due; (ii) default in the payment of interest
on any of the Senior Securities of that series outstanding under the Senior
Indenture when due and continuance of such default for 30 days; (iii) default
in the performance of any other covenant of the Company in the Senior
Indenture with respect to Senior Securities of such series and continuance of
such default for 60 days after written notice; (iv) due acceleration of any
indebtedness for borrowed money in principal amount in excess of $1,000,000 of
the Company under the terms of the instrument under which such indebtedness is
issued or secured, if such acceleration is not rescinded or annulled or such
indebtedness is not discharged within 30 days after written notice; (v)
certain events of bankruptcy, insolvency or reorganization of the Company; and
(vi) any other event that may be specified in a Prospectus Supplement with
respect to any series of Senior Securities. If an Event of Default with
respect to any series of Senior Securities for which there are Senior
Securities outstanding under the Senior Indenture occurs and is continuing,
either the applicable Trustee or the holders of not less than 25% in aggregate
principal amount of the Senior Securities of such series outstanding may
declare the principal amount (or if such Senior Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all Senior Securities of that series to be
immediately due and payable. The holders of a majority in aggregate principal
amount of the Senior Securities of any series outstanding under the Senior
Indenture may waive an Event of Default resulting in acceleration of such
Senior Securities, but only if all Events of Default with respect to Senior
Securities of such series have been remedied
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and all payments due (other than those due as a result of acceleration) have
been made. If an Event of Default occurs and is continuing, the applicable
Trustee may, in its discretion, and at the written request of holders of not
less than a majority in aggregate principal amount of the Senior Securities of
any series outstanding under the Senior Indenture and upon reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request and subject to certain other conditions set forth
in the Senior Indenture shall, proceed to protect the rights of the holders of
all the Senior Securities of such series. Prior to acceleration of maturity of
the Senior Securities of any series outstanding under the Senior Indenture,
the holders of a majority in aggregate principal amount of such Senior
Securities may waive any past default under the Senior Indenture except a
default in the payment of principal of, premium, if any, or interest on the
Senior Securities of such series.
The Senior Indenture provides that upon the occurrence of an Event of
Default specified in clauses (i) or (ii) of the immediately preceding
paragraph, the Company will, upon demand of the applicable Trustee, pay to it,
for the benefit of the holder of any such Senior Security, the whole amount
then due and payable on such Senior Securities for principal, premium, if any,
and interest. The Senior Indenture further provides that if the Company fails
to pay such amount forthwith upon such demand, such Trustee may, among other
things, institute a judicial proceeding for the collection thereof.
A judgment for money damages by courts in the United States, including a
money judgment based on an obligation expressed in a foreign currency, will
ordinarily be rendered only in U.S. dollars. New York statutory law provides
that a court shall render a judgment or decree in the foreign currency of the
underlying obligation and that the judgment or decree shall be converted into
U.S. dollars at the exchange rate prevailing on the date of entry of the
judgment or decree.
The Senior Indenture also provides that notwithstanding any other provision
of the Senior Indenture, the holder of any Senior Security of any series shall
have the right to institute suit for the enforcement of any payment of
principal of, premium, if any, and interest on such Senior Securities when due
and that such right shall not be impaired without the consent of such holder.
The Company is required to file annually with the Trustees a written
statement of officers as to the existence or non-existence of defaults under
the Senior Indenture or the Senior Securities.
REGARDING MARINE MIDLAND
Marine Midland, the Trustee under the Senior Indenture, has its principal
corporate trust office at 140 Broadway, 12th Floor, New York, New York 10005.
The Company has normal banking relationships with Marine Midland.
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Company and will be subject to the subordination provisions described below.
The Subordinated Securities will be subordinated to the senior indebtedness
and general obligations of the Company.
SUBORDINATION
It is the intent of the Company that Subordinated Securities issued by the
Company be treated as capital for calculation of regulatory capital ratios.
The Federal Reserve Board ~ has issued interpretations of its capital
regulations indicating, among other things, that subordinated debt of bank
holding companies issued on or after September 4, 1992, is includable in
capital for calculation of regulatory capital ratios only if the subordination
of
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the debt meets certain criteria and if the debt may be accelerated only for
bankruptcy, insolvency and similar matters (the "Subordination
Interpretations"). Accordingly, the Subordinated Indenture contains
subordination and acceleration provisions for the Subordinated Securities
which are intended to be consistent with the Subordination Interpretations.
Subordinated debt of the Company (including subordinated debt issued prior to
the Merger by First Chicago and NBD) issued after September 4, 1992, which
meets the Subordination Interpretations are referred to herein as "New
Subordinated Securities". Unless otherwise specified in the Prospectus
Supplement relating to a particular series of Subordinated Securities offered
thereby, Subordinated Securities offered pursuant to this Prospectus will
constitute New Subordinated Securities. See "Events of Default, Defaults,
Waivers, etc." below.
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization, the payment of the principal of, premium,
if any, and interest on the Subordinated Securities is to be subordinated in
right of payment, to the extent provided in the Subordinated Indenture, to the
prior payment in full of all Senior Indebtedness. In certain events of
bankruptcy or insolvency, the payment of the principal of and interest on the
Subordinated Securities will, to the extent provided in the Subordinated
Indenture, also be effectively subordinated in right of payment to the prior
payment in full of all General Obligations.
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization, the holders of Senior Indebtedness will
first be entitled to receive payment in full of all amounts due or to become
due before the holders of the Subordinated Securities will be entitled to
receive any payment in respect of the principal of, premium, if any, or
interest on the Subordinated Securities. If upon any such payment or
distribution of assets there remain, after giving effect to such subordination
provisions in favor of the holders of Senior Indebtedness, any amounts of
cash, property or securities available for payment or distribution in respect
of the Subordinated Securities ("Excess Proceeds") and if, at such time, any
creditors in respect of General Obligations have not received payment in full
of all amounts due or to become due on or in respect of such General
Obligations, then such Excess Proceeds shall first be applied to pay or
provide for the payment in full of such General Obligations before any payment
or distribution may be made in respect of the Subordinated Securities. The
other New Subordinated Securities issued prior to the date of this Prospectus
contain similar provisions subordinating any payment or distribution on such
New Subordinated Securities to the payment of amounts due or to become due on
or in respect of general obligations of the Company.
In addition, no payment may be made of the principal of, premium, if any, or
interest on the Subordinated Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Subordinated
Securities, at any time when (i) there is a default in the payment of the
principal of, premium, if any, interest on or otherwise in respect of any
Senior Indebtedness or (ii) any event of default with respect to any Senior
Indebtedness has occurred and is continuing, or would occur as a result of
such payment on the Subordinated Securities or any redemption, retirement,
purchase or other acquisition of any of the Subordinated Securities,
permitting the holders of such Senior Indebtedness to accelerate the maturity
thereof. Except as described above, the obligation of the Company to make
payment of the principal of, premium, if any, or interest on the Subordinated
Securities will not be affected.
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of a distribution of assets upon any dissolution,
winding up, liquidation or reorganization, certain creditors of the Company
who are not holders of Senior Indebtedness or of the Subordinated Securities
may recover less, ratably, than holders of Senior Indebtedness and may recover
more, ratably, than holders of the Subordinated Securities. By reason of the
subordination of payments and distributions on the New Subordinated Securities
to creditors in respect of general obligations, in the event of a distribution
of assets upon any dissolution, winding up, liquidation or reorganization,
holders of Old Subordinated Indebtedness (as defined herein) may recover less,
ratably, than creditors in respect of general obligations and may recover
more, ratably, than the holders of New Subordinated Securities.
Subject to payment in full of all Senior Indebtedness, the rights of the
holders of Subordinated Securities will be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to Senior Indebtedness.
Subject to payment in full of all General Obligations, the rights of the
holders of the Subordinated Securities will be subrogated to the rights
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of the creditors in respect of General Obligations to receive payments or
distributions of cash, property or securities of the Company applicable to
such creditors in respect of General Obligations.
"Senior Indebtedness" is defined in the Subordinated Indenture as the
principal of, premium, if any, and interest on (i) all of the Company's
indebtedness for money borrowed, other than the Subordinated Securities, the
Company's Floating Rate Subordinated Capital Notes Due December 1996, the
Company's 9 7/8% Subordinated Notes Due July 1999, the Company's 9%
Subordinated Notes Due June 15, 1999, the Company's 9 7/8% Subordinated Notes
Due August 15, 2000, the Company's 11 1/4% Subordinated Notes Due February 20,
2001, the Company's 10 1/4% Subordinated Notes Due May 1, 2001, the Company's
9 1/4% Subordinated Notes Due November 15, 2001, the Company's 8 7/8%
Subordinated Notes Due March 15, 2002, the Company's 8 1/4% Subordinated Notes
Due June 15, 2002, the Company's 9 1/5% Subordinated Notes Due December 17,
2001, the Company's 7 5/8% Subordinated Notes Due January 15, 2003 (the
"January 2003 Notes"), the Company's 6 7/8% Subordinated Notes Due June 15,
2003 (the "June 2003 Notes"), the Company's Floating Rate Subordinated Notes
Due July 28, 2003 (the "July 2003 Notes"), the Company's 6 3/8% Subordinated
Notes Due January 30, 2009 (the "January 2009 Notes"), the Company's 7 1/8%
Subordinated Notes Due 2007 (the "2007 Notes"), the Company's 7 1/4%
Subordinated Debentures Due 2004 (the "2004 Notes"), the Company's 8.10%
Subordinated Notes Due 2002, the Company's 7.40% Subordinated Debenture due
May 10, 2023 (the "2023 Debentures") and the Company's Floating Rate
Subordinated Notes Due 2005 (collectively, all of the foregoing notes and
debentures are hereinafter referred to as the "Existing Subordinated
Indebtedness"), whether outstanding on the date of execution of the
Subordinated Indenture or thereafter created, assumed or incurred, except such
indebtedness as is by its terms expressly stated to be not superior in right
of payment to the Subordinated Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Subordinated Securities or the
Existing Subordinated Indebtedness and; (ii) any deferrals, renewals or
extensions of any such Senior Indebtedness. The term "indebtedness for money
borrowed" as used in the prior sentence includes, without limitation, any
obligation of, or any obligation guaranteed by, the Company for the repayment
of borrowed money, whether or not evidenced by bonds, debentures, notes or
other written instruments, and any deferred obligation for the payment of the
purchase price of property or assets. The Subordinated Indenture contains no
limitation on the issuance of additional Senior Indebtedness of the Company.
The January 2003 Notes, the June 2003 Notes, the July 2003 Notes, the
January 2009 Notes, the 2007 Notes and the 2023 Debentures all constitute New
Subordinated Securities; all other Existing Subordinated Indebtedness
constitutes Old Subordinated Securities.
The Subordinated Securities rank and will rank pari passu with the Existing
Subordinated Indebtedness, subject to the obligations of the holders of
Subordinated Securities (and, generally, holders of other New Subordinated
Securities) to pay over any proceeds remaining after payments and
distributions to holders of Senior Indebtedness to creditors in respect of
general obligations. Thus, in the event of a distribution of assets of the
Company upon any dissolution, winding up, liquidation or reorganization, the
holders of the New Subordinated Securities (including holders of the
Subordinated Securities offered hereby) may receive less, ratably, than
holders of Old Subordinated Securities.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Subordinated Securities offered thereby, "General
Obligations", with respect to the Subordinated Securities, means all
obligations of the Company to make payment on account of claims in respect of
derivative products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements, other than (i) obligations on
account of Senior Indebtedness, (ii) obligations on account of indebtedness
for money borrowed ranking pari passu with or subordinate to the Subordinated
Securities and (iii) obligations which by their terms are expressly stated not
to be superior in right of payment to the Subordinated Securities or to rank
on parity with the Subordinated Securities; provided, however, that
notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Federal Reserve Board (or other
competent regulatory agency or authority), as from time to time in effect,
establishes or specifies criteria for the inclusion in
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regulatory capital of subordinated debt of a bank holding company requiring
that such subordinated debt be subordinated to obligations to creditors in
addition to those set forth above, then the term "General Obligations" shall
also include such additional obligations to creditors, as from time to time in
effect pursuant to such rules, guidelines or interpretations. For purposes of
this definition, "claim" shall have the meaning assigned thereto in Section
101(4) of the Bankruptcy Code 1978, as amended to the date of the Subordinated
Indenture.
As of September 30, 1995, the aggregate amount of Senior Indebtedness and
General Obligations of the Company was approximately $2.7 billion.
LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Securities, payment of principal of the Subordinated
Securities may be accelerated only in case of the bankruptcy or reorganization
of the Company. There is no right of acceleration in the case of a default in
the payment of principal of, premium, if any, or interest on the Subordinated
Securities or the performance of any other covenant of the Company in the
Subordinated Indenture. Payment of principal of the Old Subordinated
Securities may be accelerated in the case of the bankruptcy, insolvency or
reorganization of the Company. Such payment may also be accelerated in the
case of certain events of insolvency or receivership of FNBC or NBD Michigan,
as the case may be.
EVENTS OF DEFAULT, DEFAULTS, WAIVERS, ETC.
An Event of Default with respect to Subordinated Securities of any series is
defined in the Subordinated Indenture as certain events involving the
bankruptcy or reorganization of the Company and any other Event of Default
provided with respect to Subordinated Securities of that series. A Default
with respect to Subordinated Securities of any series is defined in the
Subordinated Indenture as (i) an Event of Default with respect to such series,
(ii) default in the payment of the principal of or premium, if any, on any
Subordinated Security of such series when due, (iii) default in the payment of
interest upon any Subordinated Security of such series when due and the
continuance of such default for a period of 30 days, (iv) default in the
performance of any other covenant or agreement of the Company in the
Subordinated Indenture with respect to Subordinated Securities of such series
and continuance of such default for 60 days after written notice, or (v) any
other Default provided with respect to Subordinated Securities of any series.
If an Event of Default with respect to any series of Subordinated Securities
for which there are Subordinated Securities outstanding under the Subordinated
Indenture occurs and is continuing, either Chase, as Trustee, or the holders
of not less than 25% in aggregate principal amount of the Subordinated
Securities of such series may declare the principal amount (or if such
Subordinated Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of
all Subordinated Securities of that series to be immediately due and payable.
The holders of a majority in aggregate principal amount of the Subordinated
Securities of any series outstanding under the Subordinated Indenture may
waive an Event of Default resulting in acceleration of such Subordinated
Securities, but only if all Defaults have been remedied and all payments due
(other than those due as a result of acceleration) have been made. If a
Default occurs and is continuing, Chase may in its discretion, and at the
written request of holders of not less than a majority in aggregate principal
amount of the Subordinated Securities of any series outstanding under the
Subordinated Indenture and upon reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request and
subject to certain other conditions set forth in the Subordinated Indenture
shall, proceed to protect the rights of the holders of all the Subordinated
Securities of such series. Prior to acceleration of maturity of the
Subordinated Securities of any series outstanding under the Subordinated
Indenture, the holders of a majority in aggregate principal amount of such
Subordinated Securities may waive any past default under the Subordinated
Indenture except a default in the payment of principal of, premium, if any, or
interest on the Subordinated Securities of such series.
The Subordinated Indenture provides that in the event of a Default specified
in clauses (ii) or (iii) of the immediately preceding paragraph in payment of
principal of, premium, if any, or interest on any Subordinated Security of any
series, the Company will, upon demand of Chase, pay to it, for the benefit of
the holder of any such Subordinated Security, the whole amount then due and
payable on such Subordinated Security for principal,
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premium, if any, and interest. The Subordinated Indenture further provides
that if the Company fails to pay such amount forthwith upon such demand, Chase
may, among other things, institute a judicial proceeding for the collection
thereof.
The Subordinated Indenture also provides that notwithstanding any other
provision of the Subordinated Indenture, the holder of any Subordinated
Security of any series shall have the right to institute suit for the
enforcement of any payment of principal of, premium, if any, and interest on
such Subordinated Security on the respective Stated Maturities (as defined in
the Subordinated Indenture) expressed in such Subordinated Security and that
such right shall not be impaired without the consent of such holder.
The Company is required to file annually with Chase a written statement of
officers as to the existence or non-existence of defaults under the
Subordinated Indenture or the Subordinated Securities.
REGARDING CHASE
Chase, the Trustee under the Subordinated Indenture, has a principal
corporate trust office at 4 Chase MetroTech Center, New York, New York 11245.
The Company has normal banking relationships with Chase. Chase also serves as
trustee for the 2004 Notes under an Indenture dated as of July 15, 1992,
originally entered into with NBD.
DESCRIPTION OF DEBT WARRANTS
The Company may issue Debt Warrants for the purchase of Debt Securities.
Debt Warrants may be issued independently or together with any Debt Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Debt Securities. The Debt Warrants are to be issued under warrant
agreements (each a "Debt Warrant Agreement") to be entered into between the
Company and a warrant agent which will be designated in the applicable
Prospectus Supplement (the "Debt Warrant Agent"), all as set forth in the
Prospectus Supplement relating to the particular issue of Debt Warrants (the
"Offered Debt Warrants"). The Debt Warrant Agent will act solely as an agent
of the Company in connection with the Debt Warrants and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of Debt Warrants. The following summaries of certain
provisions of the form of Debt Warrant Agreement and the warrant certificates
representing the Debt Warrants (the "Debt Warrant Certificates"), if any, do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Debt Warrant Agreement and
the Debt Warrant Certificates, respectively, including the definitions therein
of certain terms, which Agreement and Certificates will be filed as exhibits
to or incorporated by reference in the Registration Statement of which this
Prospectus forms a part.
If Debt Warrants are offered, the Prospectus Supplement will describe the
terms of the Offered Debt Warrants, the Debt Warrant Agreement relating to the
Offered Debt Warrants and the Debt Warrant Certificates representing the
Offered Debt Warrants, if any, including the following: (1) the offering
price; (2) the currency or currency unit in which the price for the Offered
Debt Warrants may be payable; (3) the designation, aggregate principal amount
and terms of the Debt Securities purchasable upon exercise of the Offered Debt
Warrants; (4) if applicable, the designation and terms of the Debt Securities
with which the Offered Debt Warrants are issued and the number of Offered Debt
Warrants issued with each such Debt Security; (5) if the Debt Securities
purchasable upon exercise of Offered Debt Warrants are denominated in a
currency or currency unit other than U.S. dollars, the denomination of such
Debt Securities and the currency or units based on or relating to currencies
(including ECU) in which the principal of, premium, if any, and interest on
such Debt Securities will be payable; (6) if applicable, the date on and after
which the Offered Debt Warrants and the related Debt Securities will be
separately transferable; (7) the principal amount of Debt Securities
purchasable upon exercise of an Offered Debt Warrant and the price at which,
and currency or currency units based on or relating to currencies (including
ECU) in which, such principal amount of Debt Securities may be purchased upon
such exercise; (8) the date on which the right to exercise the Offered Debt
Warrants shall commence and the date on which such right shall expire; (9) if
applicable, a discussion of certain Federal income tax, accounting and other
special considerations, procedures and limitations; (10) whether the Debt
Warrants represented by the Debt Warrant Certificates will be issued as
Registered Securities or Bearer Securities; and (11) any other terms of the
Offered Debt Warrants, including terms, procedures and limitations relating to
the exchange and exercise of the Offered Debt Warrants.
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DESCRIPTION OF CURRENCY WARRANTS
The Company may issue Currency Warrants which, upon exercise at a permitted
time or times in the future, entitle any holder thereof to receive the Cash
Settlement Value (as defined below) of two designated currencies. Currency
Warrants may be issued independently or together with any Debt Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Debt Securities. The Currency Warrants are to be issued under warrant
agreements (each a "Currency Warrant Agreement") to be entered into between
the Company and a warrant agent which will be designated in the applicable
Prospectus Supplement (the "Currency Warrant Agent"), all as set forth in the
Prospectus Supplement relating to the particular issue of Currency Warrants
(the "Offered Currency Warrants"). The Currency Warrant Agent will act solely
as an agent of the Company in connection with the Currency Warrants and will
not assume any obligation or relationship of agency or trust for or with any
holder or beneficial owners of Currency Warrants. The following summaries of
certain provisions of the form of Currency Warrant Agreement do not purport to
be complete and are subject to and are qualified in their entirety by
reference to all the provisions of the Currency Warrant Agreement and the form
of certificate, if any, representing the Currency Warrants (the "Currency
Warrant Certificates"), respectively, including the definitions therein of
certain terms which Agreement and Certificate, if any, will be filed as an
exhibit to or incorporated by reference in the Registration Statement of which
this Prospectus forms a part.
The Currency Warrants will not require, or entitle, any holder thereof to
sell any foreign currency to the Company. The Company will make only a U.S.
dollar cash settlement upon exercise of a Currency Warrant and will not be
obligated to purchase or take delivery of any foreign currency from any holder
of a Currency Warrant.
The "Cash Settlement Value" of an exercised Currency Warrant will be an
amount stated in U.S. dollars which is the greater of (i) zero and (ii) an
amount equal to (a) the nominal amount of such Currency Warrant, minus (b) an
amount equal to the nominal amount of such Currency Warrant times a fraction,
the numerator of which is the Strike Price of such Currency Warrant and the
denominator of which is the Spot Rate of such Currency Warrant on the Exercise
Date. The "nominal amount" of a Currency Warrant refers to the principal
amount, expressed in U.S. dollars, of a currency (the "Base Currency") which
is to be compared to another currency (the "Second Currency") upon exercise of
such Currency Warrant. Unless otherwise specified in the applicable Prospectus
Supplement, the Base Currency shall be U.S. dollars. The "Strike Price" is the
designated rate of exchange of the Base Currency for the Second Currency which
the Company will specify in the Prospectus Supplement relating to the Offered
Currency Warrants. The "Spot Rate" refers to the floating rate of exchange of
the Base Currency for the Second Currency on any given date, as quoted by a
reference bank or banks or other institution at a designated time of day, such
source of quotations and time to be specified in the applicable Prospectus
Supplement. The "Exercise Date" refers to the effective date on which the
holder of a Currency Warrant exercises such Currency Warrant.
If Currency Warrants are offered, the Prospectus Supplement will describe
the terms of the Offered Currency Warrants, the Currency Warrant Agreement
relating to the Offered Currency Warrants and, if applicable, Currency Warrant
Certificates, including the following: (1) the aggregate number of Offered
Currency Warrants; (2) the Nominal Amount of each Offered Currency Warrant;
(3) the price of the Offered Currency Warrants; (4) the Base Currency and the
Second Currency; (5) the Strike Price for the Offered Currency Warrants; (6)
the reference bank or banks or other institution and time of day to be used to
determine the Spot Rate; (7) the date on which the right to exercise the
Offered Currency Warrants shall begin and the date on which such right shall
terminate; (8) if applicable, the minimum or maximum amount of Offered
Currency Warrants which may be exercised at any one time; (9) the place or
places at which payment of the Cash Settlement Value is to be made by the
Company; (10) whether the Offered Currency Warrants will be represented by
certificates or issued in book-entry form; (11) the method by which the
Offered Currency Warrants are to be exercised; (12) the Federal income tax
consequences and other special considerations, procedures and limitations
applicable to such Offered Currency Warrants; and (13) any other terms of the
Offered Currency Warrants, including risk factors specifically relating to the
Base Currency or Second Currency and Currency Warrants relating to such
currencies.
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DESCRIPTION OF STOCK-INDEX WARRANTS
The Company may issue Stock Index Warrants which, upon exercise at a
permitted time or times in the future, entitle any holder thereof to receive
an amount of cash determined by references to increases and/or decreases in
the level of a specified stock index. Stock-Index Warrants may be issued
independently or together with other Securities offered by any Prospectus
Supplement and may be attached to or separate from such other Securities. The
Stock-Index Warrants are to be issued under one or more warrant agreements
(each a "Stock-Index Warrant Agreement") to be entered into between the
Company and a bank or trust company, as stock-index warrant agent which will
be designated in the applicable Prospectus Supplement (the "Stock-Index
Warrant Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Stock-Index Warrants. The Stock-Index Warrant Agent will
act solely as an agent of the Company in connection with the Stock-Index
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holder or beneficial owners of Stock-Index Warrants. The
following summaries of certain provisions of the form of Stock-Index Warrant
Agreement and form of certificate, if any, representing the Stock-Index
Warrants (the "Stock-Index Warrant Certificates") do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Stock-Index Warrant Agreement and the Stock-
Index Warrant Certificates, respectively, including the definitions therein of
certain terms which Agreement and Certificate, if any, will be filed as an
exhibit to or incorporated by reference in the Registration Statement of which
this Prospectus forms a part.
The Company may issue Stock-Index Warrants either in the form of Stock-Index
Put Warrants entitling the holders thereof to receive from the Company the
Stock-Index Cash Settlement Value (as described in the applicable Prospectus
Supplement) in U.S. dollars, which amount will be determined by reference to
the amount, if any, by which the Stock-Index Exercise Price (as described in
the applicable Prospectus Supplement) exceeds the closing value of the Index
on the valuation date (the "Index Value") at the time of exercise, or in the
form of Stock-Index Call Warrants entitling the holders thereof to receive
from the Company the Stock-Index Cash Settlement Value in U.S. dollars, which
amount will be determined by reference to the amount, if any, by which the
Index Value at the time of exercise exceeds the Stock-Index Exercise Price.
The Prospectus Supplement for an issue of Stock-Index Warrants will set
forth the formula pursuant to which the Stock-Index Cash Settlement Value will
be determined. In addition, if so specified in the applicable Prospectus
Supplement, following the occurrence of a Market Disruption Event (as defined
therein), the Stock-Index Cash Settlement Value may be determined on a
different basis than under normal exercise of a Stock-Index Warrant.
Unless otherwise indicated in the Prospectus Supplement, a Stock-Index
Warrant will be settled only in cash and, accordingly, will not require or
entitle a holder thereof to sell, deliver, purchase or take delivery of any
shares of any underlying stock or any other securities. The holders will not
be entitled to any of the rights of the holders of any underlying stock.
If Stock-Index Warrants are offered, the Prospectus Supplement will describe
the terms of Stock-Index Warrants offered thereby, including the following:
(1) whether such Stock-Index Warrants are Stock-Index Put Warrants, Stock-
Index Call Warrants or both; (2) the aggregate amount of such Stock-Index
Warrants; (3) the offering price; (4) the stock index for such Stock-Index
Warrants, which may be based on one or more U.S. or foreign stocks or a
combination thereof and may be a preexisting U.S. or foreign stock index
compiled and published by a third party or an index based on one or more
underlying stock or stocks selected by the Company solely in connection with
the issuance of such Stock-Index Warrants, and certain information regarding
such stock index and the underlying stock or stocks; (5) the date on which the
right to exercise such Stock-Index Warrants commences and the date on which
such right expires (the "Stock-Index Warrant Expiration Date"); (6) the
procedures and conditions relating to exercise; (7) the circumstances, if any,
which will cause the Stock-Index Warrants to be deemed to be automatically
exercised; (8) the minimum number, if any, of Stock-Index Warrants to be
exercised at any one time other than upon automatic exercise and any other
restrictions on
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exercise; (9) the maximum number, if any, of such Stock-Index Warrants that
may, subject to the Company's election, be exercised by all owners (or by any
person or entity) on any day; (10) the method of providing for a substitute
index or otherwise determining the amount payable in connection with the
exercise of such Stock-Index Warrants if the stock index changes or ceases to
be made available by its publisher, which determination will be made by an
independent expert; (11) the national securities exchange on which the Stock-
Index Warrants will be listed, if any; (12) whether the Stock-Index Warrants
will be issued in certificated or book-entry form; (13) the place or places at
which payment of the Stock-Index Cash Settlement Value is to be made by the
Company; (14) information with respect to book-entry procedures, if any; (15)
the plan of distribution of such Stock-Index Warrants; (16) the identity of
the Stock-Index Warrant Agent; (17) any provisions permitting a holder of a
Stock-Index Warrant to condition a stock-index exercise notice on the absence
of certain specified changes in the Index Value after the Stock-Index Warrant
Exercise Date; and (18) any other terms of such Stock-Index Warrants,
including risk factors specifically relating to fluctuations in the applicable
stock index and possible illiquidity in the secondary market.
Prospective purchasers of Stock-Index Warrants should be aware that special
U.S. Federal income tax, accounting and other considerations may be applicable
to instruments such as Stock-Index Warrants. The Prospectus Supplement
relating to any issue of Stock-Index Warrants will describe such
considerations.
DESCRIPTION OF OTHER WARRANTS
The Company may issue Other Warrants, if permitted under applicable law, to
buy or sell debt securities of or guaranteed by the United States, to buy or
sell a commodity or a unit of a commodity index or to buy or sell some other
item or unit of an index other than indices covered by Stock-Index Warrants
(collectively, "Exercise Items"). Owners of Other Warrants will be entitled to
receive from the Company the cash settlement value in U.S. dollars of the
right to buy or sell the Exercise Items (the "Other Warrant Cash Settlement
Value"). An Owner of Other Warrants will receive a cash payment upon exercise
only if the Other Warrants have an Other Warrant Cash Settlement Value in
excess of zero at that time.
Other Warrants may be issued independently or together with other Securities
offered by any Prospectus Supplement and may be attached to or separate from
such other Securities. The Other Warrants are to be issued under one or more
other warrant agreements (the "Other Warrant Agreements") to be entered into
between the Company and a bank or trust company, as warrant agent which will
be designated in the applicable Prospectus Supplement (the "Other Warrant
Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Other Warrants. The Other Warrant Agent will act solely as
an agent of the Company in connection with the Other Warrants and will not
assume any obligation or relationship of agency or trust for or with any
holder or beneficial owners of the Other Warrants. The following summaries of
certain provisions of the form of Other Warrant Agreement and form of
certificate, if any, representing the Other Warrants (the "Other Warrant
Certificates") do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the Other
Warrant Agreement and the Other Warrant Certificates, respectively, including
the definitions therein of certain terms which Agreement and Certificate, if
any, will be filed as an exhibit to or incorporated by reference in the
Registration Statement of which this Prospectus forms a part.
Unless otherwise indicated in the Prospectus Supplement, an Other Warrant
will be settled only in cash, in U.S. dollars, and accordingly, will not
require or entitle an owner thereof to sell, deliver, purchase or take
delivery of any Exercise Items.
If Other Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Other Warrants, including, where applicable, the
following: (1) the title and aggregate number of such Other Warrants; (2) the
offering price; (3) the Exercise Items that such Other Warrants represent the
right to buy or sell; (4) the procedures and conditions relating to exercise;
(5) the date on which the right to exercise the Other Warrants shall commence
and the date such right shall expire (the "Other Warrant Expiration Date");
(6) the method of
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determining the Other Warrant Cash Settlement Value; (7) whether such Other
Warrants will be issued in certificated or book-entry form; (8) whether such
Other Warrants will be listed on a national securities exchange; (9)
information with respect to book-entry procedures, if any; (10) the identity
of the Other Warrant Agent; and (11) any other terms of such Other Warrants,
including risk factors relating to significant fluctuations in the market for
the applicable Exercise Item, the potential illiquidity of the secondary
market and the risk that the Other Warrants may expire worthless.
Prospective purchasers of Other Warrants should be aware that special U.S.
Federal income tax, accounting and other considerations may be applicable to
instruments such as Other Warrants. The Prospectus Supplement relating to any
issue of Other Warrants will describe such considerations.
DESCRIPTION OF THE PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of
Preferred Stock offered by any Prospectus Supplement will be specified in the
applicable Prospectus Supplement. If so specified in the applicable Prospectus
Supplement, the terms of any series of Preferred Stock may differ from the
terms set forth below. The description of the terms of the Preferred Stock set
forth below and in any Prospectus Supplement does not purport to be complete
and is subject to and qualified in its entirety by reference to the
Certificate of Designation relating to the applicable series of Preferred
Stock, which Certificate will be filed as an exhibit to or incorporated by
reference in the Registration Statement of which this Prospectus forms a part.
GENERAL
Pursuant to the Company's Restated Certificate of Incorporation, as amended
(the "Certificate of Incorporation"), the Board of Directors of the Company
has the authority, without further stockholder action, to issue from time to
time a maximum of 10,000,000 shares of preferred stock, without par value, in
one or more series and for such consideration, as may be fixed from time to
time by the Board of Directors of the Company, and to fix before the issuance
of any shares of preferred stock of a particular series, the designation of
such series, the number of shares to comprise such series, the dividend rate
or rates payable with respect to the shares of such series, the redemption
price or prices, if any, and the terms and conditions of the redemption, the
voting rights, any sinking fund provisions for the redemption or purchase of
the shares of such series, the terms and conditions upon which the shares are
convertible, if they are convertible, and any other relative rights,
preferences and limitations pertaining to such series. As of December 1, 1995,
there were issued and outstanding 1,191,000 shares of the Company's Preferred
Stock with Cumulative and Adjustable Dividends, Series B ($100 stated value)
(the "Series B Preferred Stock"), 713,800 shares of the Company's Preferred
Stock with Cumulative and Adjustable Dividends, Series C ($100 stated value)
(the "Series C Preferred Stock"), 160,000 shares of the Company's 8.45%
Cumulative Preferred Stock, Series E ($625 stated value) (the "Series E
Preferred Stock"), and 40,000 shares of the Company's 5 3/4% Cumulative
Convertible Preferred Stock, Series B ($5,000 stated value) (the "Series B
Convertible Preferred Stock") (collectively, the "Existing Preferred Stock").
In addition, the Company has issued 6,000,000 preferred share purchase units
("Preferred Purchase Units") which may require the holder of which to
purchase, no later than 2023, the Company's 7 1/2% Cumulative Preferred Stock
(the 7 1/2% Preferred Stock"). See "Description of Existing Preferred Stock
and Preferred Purchase Units" herein.
As described under "Description of Depositary Shares" below, the Company
may, at its option, elect to offer depositary shares ("Depositary Shares")
evidenced by depositary receipts, each representing a fraction (to be
specified in the Prospectus Supplement relating to the particular series of
Preferred Stock) of a share of the particular series of the Preferred Stock
issued and deposited with a depositary, in lieu of offering full shares of
such series of the Preferred Stock.
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Under interpretations adopted by the Federal Reserve Board, if the holders
of Preferred Stock of any series become entitled to vote for the election of
directors because dividends on such series are in arrears as described under
"Voting Rights" below, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% or
more if it otherwise exercises a "controlling influence" over the Company) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as
such series is deemed a class of voting securities, any other bank holding
company may be required to obtain the prior approval of the Federal Reserve
Board to acquire 5% or more of such series, and any person other than a bank
holding company may be required to obtain the prior approval of the Federal
Reserve Board to acquire 10% or more of such series.
The Preferred Stock shall have the dividend, liquidation, redemption, voting
and conversion rights set forth below unless otherwise specified in the
applicable Prospectus Supplement. Reference is made to the Prospectus
Supplement relating to the particular series of Preferred Stock offered
thereby for specific terms, including: (1) the designation, stated value and
liquidation preference of such Preferred Stock and the number of shares
offered; (2) the initial public offering price at which such shares will be
issued; (3) the dividend rate or rates (or method of calculation), the
dividend periods, the date on which dividends shall be payable and whether
such dividends shall be cumulative or noncumulative and, if cumulative, the
dates from which dividends shall commence to cumulate; (4) any redemption or
sinking fund provisions; (5) any conversion provisions; (6) whether the
Company has elected to offer Depositary Shares as described below under
"Description of Depositary Shares"; and (7) any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions of such Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable Prospectus Supplement, the shares
of each series of Preferred Stock will upon issuance rank on a parity in all
respects with the Company's Existing Preferred Stock, described below, and
each other then outstanding series of preferred stock of the Company. The
Preferred Stock will have no preemptive rights to subscribe for any additional
securities which may be issued by the Company. Unless otherwise specified in
the applicable Prospectus Supplement, First Chicago Trust Company of New York
will be the transfer agent and registrar for the Preferred Stock.
Because the Company is a holding company, its rights and the rights of
holders of its securities, including the holders of Preferred Stock, to
participate in the assets of any Company subsidiary upon the latter's
liquidation or recapitalization will be subject to the prior claims of such
subsidiary's creditors and preferred shareholders, except to the extent the
Company may itself be a creditor with recognized claims against such
subsidiary or a holder of preferred shares of such subsidiary.
DIVIDENDS
The holders of the Preferred Stock will be entitled to receive, when, as and
if declared by the Board of Directors of the Company, out of funds legally
available therefor, dividends at such rates and on such dates as will be
specified in the applicable Prospectus Supplement. Such rates may be fixed or
variable or both. If variable, the formula used for determining the dividend
rate for each dividend period will be specified in the applicable Prospectus
Supplement. Dividends will be payable to the holders of record as they appear
on the stock books of the Company (or, if applicable, the records of the
Depositary referred to below under "Description of Depositary Shares") on such
record dates as will be fixed by the Board of Directors of the Company.
Dividends may be paid in the form of cash, Preferred Stock (of the same or a
different series) or Common Stock of the Company, in each case as specified in
the applicable Prospectus Supplement.
Dividends on any series of Preferred Stock may be cumulative or
noncumulative, as specified in the applicable Prospectus Supplement. If the
Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any Preferred Stock for which dividends are
noncumulative ("Noncumulative Preferred Stock"), then the holders of such
Preferred Stock will have no right to receive a dividend in respect of the
dividend period relating to such dividend payment date, and the Company will
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such Preferred Stock are declared or paid on any future dividend
payment dates.
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The Company shall not declare or pay or set apart for payment any dividends
on any series of its preferred shares ranking, as to dividends, on a parity
with or junior to the outstanding Preferred Stock of any series unless (i) if
such Preferred Stock has a cumulative dividend ("Cumulative Preferred Stock"),
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 such Preferred Stock for all dividend periods terminating on or
prior to the date of payment of any such dividends on such other series of
preferred shares of the Company, or (ii) if such Preferred Stock is
Noncumulative Preferred Stock, full dividends for the then-current dividend
period on such Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
such payment. When dividends are not paid in full upon Preferred Stock of any
series and any other shares of preferred stock of the Company ranking on a
parity as to dividends with such Preferred Stock, all dividends declared upon
such Preferred Stock and any other preferred shares of the Company ranking on
a parity as to dividends with such Preferred Stock shall be declared pro rata
so that the amount of dividends declared per share on such Preferred Stock and
such other shares shall in all cases bear to each other the same ratio that
the accrued dividends per share on such Preferred Stock (which shall not, if
such Preferred Stock is Noncumulative Preferred Stock, include any
accumulation in respect of unpaid dividends for prior dividend periods) and
such other preferred shares bear to each other. Except as set forth in the
preceding sentence, unless full dividends on the outstanding Cumulative
Preferred Stock of any series have been paid for all past dividend periods and
full dividends for the then-current dividend period on the outstanding
Noncumulative Preferred Stock of any series have been declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payment, no dividends (other than in Common Stock of the Company or other
shares of the Company ranking junior to such Preferred Stock as to dividends
and upon liquidation) shall be declared or paid or set aside for payment, nor
shall any other distribution be made on the Common Stock of the Company or on
any other shares of the Company ranking junior to or on a parity with such
Preferred Stock as to dividends or upon liquidation. Unless full dividends on
the Cumulative Preferred Stock of any series have been paid for all past
dividend periods and full dividends for the then-current dividend period on
the Noncumulative Preferred Stock of any series have been declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payment, no Common Stock or any other shares of the Company ranking junior to
or on a parity with such Preferred Stock as to dividends or upon liquidation
shall be redeemed, purchased or otherwise acquired for any consideration (or
any moneys be paid or made available for a sinking fund for the redemption of
any such shares) by the Company or any subsidiary of the Company except by
conversion into or exchange for shares of the Company ranking junior to such
Preferred Stock as to dividends and upon liquidation.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption pursuant
to a sinking fund or otherwise, in each case upon terms, at the times and at
the redemption prices specified in the applicable Prospectus Supplement and
subject to the rights of holders of other securities of the Company. Preferred
Stock redeemed by the Company will be restored to the status of authorized but
unissued preferred shares.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon
(which shall not, if such Preferred Stock is Noncumulative Preferred Stock,
include any accumulation in respect of unpaid dividends for prior dividend
periods) to the date of redemption. The redemption price may be payable in
cash or other property, as specified in the applicable Prospectus Supplement.
If the redemption price for Preferred Stock of any series is payable only from
the net proceeds of the issuance of capital stock of the Company, the terms of
such Preferred Stock may provide that, if no such capital stock shall have
been issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then due, such
Preferred Stock shall automatically and mandatorily be converted into shares
of the applicable capital stock of the Company pursuant to conversion
provisions specified in the applicable Prospectus Supplement.
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If fewer than all the outstanding shares of Preferred Stock of any series
are to be redeemed, the number of shares to be redeemed will be determined in
a manner designated by the Board of Directors of the Company and such shares
shall be redeemed pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders (with adjustments
to avoid redemption of fractional shares) or by lot or by any other method as
may be determined by the Board of Directors of the Company.
Notwithstanding the foregoing, if any dividends, including any accumulation,
on Cumulative Preferred Stock of any series are in arrears, no Preferred Stock
of such series shall be redeemed unless all outstanding Preferred Stock of
such series is simultaneously redeemed, and the Company shall not purchase or
otherwise acquire any Preferred Stock of such series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of Preferred Stock
of such series pursuant to a purchase or exchange offer provided such offer is
made on the same terms to all holders of the Preferred Stock of such series.
Notice of redemption shall be given by mailing the same to each record
holder of the Preferred Stock to be redeemed, not less than 30 nor more than
60 days prior to the date fixed for redemption thereof, to the respective
addresses of such holders as the same shall appear on the stock books of the
Company. Each notice shall state: (i) the redemption date; (ii) the number of
shares and series of the Preferred Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Preferred Stock
are to be surrendered for payment of the redemption price; (v) that dividends
on the shares to be redeemed will cease to accrue on such redemption date; and
(vi) the date upon which the holder's conversion rights, if any, as to such
shares, shall terminate. If fewer than all the shares of Preferred Stock of
any series held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Preferred Stock to be
redeemed from such holder.
If notice of redemption of any shares of Preferred Stock has been given,
from and after the redemption date for such shares (unless default shall be
made by the Company in providing money for the payment of the redemption price
of such shares), dividends on such shares shall cease to accrue and such
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as shareholders of the Company (except the right to receive
the redemption price) shall cease. Upon surrender in accordance with such
notice of the certificates representing any such shares (properly endorsed or
assigned for transfer, if the Board of Directors of the Company shall so
require and the notice shall so state), the redemption price set forth above
shall be paid out of the funds provided by the Company. If 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.
CONVERSION RIGHTS
The Prospectus Supplement relating to a series of the Preferred Stock that
is convertible will state the terms on which shares of such series are
convertible into the Company's Common Stock, or another series of Preferred
Stock.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of Preferred Stock shall be entitled to
receive out of the assets of the Company available for distribution to
shareholders, before any distribution of assets is made to holders of Common
Stock or any other class or series of shares ranking junior to such Preferred
Stock upon liquidation, liquidating distributions in the amount of the
liquidation preference of such Preferred Stock plus accrued and unpaid
dividends (which shall not, if such Preferred Stock is Noncumulative Preferred
Stock, include any accumulation in respect of unpaid dividends for prior
dividend periods). If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company the amounts payable with respect to
Preferred Stock of any series and any other shares of the Company ranking as
to any such distribution on a parity with such Preferred Stock are not paid in
full, the holders of such Preferred Stock and of such other shares will share
ratably in any such distribution of assets of the Company in proportion to the
full respective preferential amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which they are entitled,
the holders of Preferred Stock of any series will not be entitled to any
further participation in any distribution of assets by the Company.
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VOTING RIGHTS
Except as indicated below or in the applicable Prospectus Supplement, or
except as expressly required by applicable law, the holders of the Preferred
Stock will not be entitled to vote. In the event the Company issues full
shares of any series of Preferred Stock, each such share will be entitled to
one vote on matters on which holders of such series of the Preferred Stock are
entitled to vote. However, as more fully described under "Description of
Depositary Shares" below, if the Company elects to issue Depositary Shares
representing a fraction of a share of a series of Preferred Stock, each such
Depositary Share will, in effect, be entitled to such fraction of a vote,
rather than a full vote, per Depositary Share. Since each full share of any
series of Preferred Stock of the Company shall be entitled to one vote, the
voting power of such series, on matters on which holders of such series and
holders of other series of Preferred Stock are entitled to vote as a single
class, shall depend on the number of shares in such series, not the aggregate
stated value, liquidation preference or initial offering price of the shares
of such series of Preferred Stock.
If the equivalent of six quarterly dividends payable on any series of
Preferred Stock are in default, the number of directors of the Company will be
increased by two and the holders of all outstanding series of Preferred Stock,
voting as a single class without regard to series, will be entitled to elect
such additional two directors until all dividends in default have been paid or
declared and set apart for payment.
The affirmative vote or consent of the holders of at least 66 2/3 percent of
the outstanding shares of Preferred Stock of any series, voting as a class,
will be required for any amendment to the Company's Certificate of
Incorporation (or any certificate supplemental thereto) that will adversely
affect the powers, preferences, privileges or rights of the Preferred Stock of
such series. The affirmative vote or consent of the holders of at least 66 2/3
percent of the outstanding shares of Preferred Stock of any series and any
other series of preferred shares of the Company ranking on a parity with the
Preferred Stock of such series as to dividends or upon liquidation, voting as
a single class without regard to series, will be required to authorize, effect
or validate the creation, authorization or issue of any shares of any class of
stock of the Company ranking prior to the Preferred Stock of such series as to
dividends or upon liquidation, or the reclassification of any authorized stock
of the Company into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or evidencing the right
to purchase any such prior shares.
Subject to such affirmative vote or consent of the holders of the
outstanding shares of Preferred Stock of any series, the Company may, by
resolution of its Board of Directors or as otherwise permitted by law, from
time to time alter or change the preferences, rights or powers of the
Preferred Stock of such series. The holders of the Preferred Stock of such
series shall not be entitled to participate in any such vote if, at or prior
to the time when any such alteration or change is to take effect, provision is
made for the redemption of all the Preferred Stock of such series at the time
outstanding. Nothing in this section shall be taken to require a class vote or
consent in connection with the authorization, designation, increase or
issuance of any shares of any class or series (including additional Preferred
Stock of any series) that rank junior to or on a parity with the Preferred
Stock of such series as to dividends and liquidation rights or in connection
with the authorization, designation, increase or issuance of any bonds,
mortgages, debentures or other obligations of the Company.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, the Company will issue to the public receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of Preferred Stock)
of a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") between
the Company and a bank or trust company selected by the Company having its
principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Preferred Stock
represented by such Depositary Share, to all the rights and preferences of the
Preferred Stock represented thereby (including dividend, voting, redemption,
conversion and liquidation rights).
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The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. Copies of the
forms of Deposit Agreement and Depositary Receipt will be filed as exhibits
to, or incorporated by reference in, the Registration Statement of which this
Prospectus is a part, and the following summary is qualified in its entirety
by reference to such exhibits.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called
for redemption), the owner of the Depositary Shares evidenced thereby is
entitled to delivery at such office, to or upon his order, of the number of
whole shares of Preferred Stock and any money or other property represented by
such Depositary Shares. Partial shares of Preferred Stock will not be issued.
If the Depositary Receipts delivered by the holder evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing a
number of whole shares of Preferred Stock to be withdrawn, the Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares. Holders of shares of Preferred Stock
thus withdrawn will not thereafter be entitled to deposit such shares under
the Deposit Agreement or to receive Depositary Shares therefor. The Company
does not expect that there will be any public trading market for withdrawn
shares of Preferred Stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders. The Depository shall
distribute only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributed shall be added to and treated as part of the next
sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of Preferred Stock held by the Depositary. The Depositary shall
mail notice of redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to the record holders of the Depositary Shares to be
so redeemed at their respective addresses appearing in the Depositary's books.
The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock
held by the Depositary, the Depositary will redeem as of the same redemption
date the number of Depositary Shares representing shares of Preferred Stock so
redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to
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receive the moneys payable upon such redemption and any money or other
property to which the holders of such Depositary Shares were entitled upon
such redemption upon surrender to the Depositary of the Depositary Receipts
evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of the Preferred Stock
represented by such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of the Preferred Stock represented
by such Depositary Shares in accordance with such instructions, and the
Company will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares
representing such Preferred Stock.
TAXATION
Owners of the Depositary Shares will be treated for Federal income tax
purposes as if they were owners of the series of Preferred Stock represented
by such Depositary Shares and, accordingly, will be entitled to take into
account for Federal income tax purposes income and deductions to which they
would be entitled if they were holders of such series of Preferred Stock. In
addition, (i) no gain or loss will be recognized for Federal income tax
purposes upon the withdrawal of Preferred Stock in exchange for Depositary
Shares as provided in the Deposit Agreement, (ii) the tax basis of each share
of Preferred Stock to an exchanging owner of Depositary Shares will, upon such
exchange, be the same as the aggregate tax basis of the Depositary Shares
exchanged therefor and (iii) the holding period for shares of the Preferred
Stock in the hands of an exchanging owner of Depositary Shares who held such
Depositary Shares as a capital asset at the time of the exchange thereof for
Preferred Stock will include the period during which such person owned such
Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the holders of Depositary Shares
will not be effective unless such amendment has been approved by the holders
of at least a majority of the Depositary Shares then outstanding. The Deposit
Agreement may be terminated by the Company or the Depositary only if (i) all
outstanding Depositary Shares have been redeemed or (ii) there has been a
final distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
has been distributed to the holders of Depositary Receipts.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of
the Preferred Stock and any redemption of the Preferred Stock. Holders of
Depositary Receipts will pay other transfer and other taxes and governmental
charges and such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of the Preferred
Stock.
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Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Stock unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Receipts
or other persons believed to be competent and on documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
DESCRIPTION OF EXISTING PREFERRED STOCK AND PREFERRED PURCHASE UNITS
The outstanding Series B Preferred Stock and Series C Preferred Stock of the
Company were issued as of December 1, 1995 as part of the Merger in exchange
for two similar series of preferred stock of First Chicago outstanding at the
effective time of the Merger. The First Chicago preferred stock was originally
issued in February 1983, and February 1984, respectively. The dividend rate on
each series is adjusted quarterly, based on a formula that considers the
interest rates for selected short- and long-term U.S. Treasury securities
prevailing at the time the rate is set. The Company's Series B Convertible
Preferred Stock and Series E Preferred Stock, which also were issued on
December 1, 1995 in connection with the Merger, replace similar series of
preferred stock of First Chicago which were originally issued in March 1993,
and November 1992, respectively. The Series B Convertible Preferred Stock and
Series E Preferred Stock have fixed dividend rates. The Existing Preferred
Stock ranks prior to the Company's Common Stock, both as to dividends and upon
liquidation, but has no general voting rights (except as described under
"Description of the Preferred Stock--Voting Rights"). Each series of the
Existing Preferred Stock ranks pari passu with each other series of the
Existing Preferred Stock with respect to dividends and liquidation rights.
The Series B Preferred Stock is subject to a minimum and maximum annual
dividend rate of 6.00 percent and 12.00 percent, respectively. The annualized
dividend rate for the quarterly period ended February 29, 1996, is 6.0
percent. Shares of this series are redeemable, at the option of the Company,
at their stated value of $100 per share plus accrued and unpaid dividends.
Shares of this series are not convertible into other securities of the
Company.
The Series C Preferred Stock is subject to a minimum and maximum annual
dividend rate of 6.50 percent and 12.50 percent, respectively. The annualized
dividend rate for the quarterly period ended February 29, 1996, is 6.5
percent. Shares of this series are redeemable, at the option of the Company,
at their stated value of $100 per share plus accrued and unpaid dividends.
Shares of this series are not convertible into other securities of the
Company.
The Series E Preferred Stock is represented by depositary shares with each
depositary share representing a one-twenty-fifth interest in a share of Series
E Preferred Stock. The Series E Preferred Stock has an annual dividend rate
equal to $52.8125 ($2.1125 per depositary share), or 8.45 percent, which was
fixed at the date of issue. Shares of this series are redeemable, at the
option of the Company, at any time on or after November 16, 1997 at a
redemption price of $625 per share ($25 per depositary share). Shares of this
series are not convertible into other securities of the Company.
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The Series B Convertible Preferred Stock is represented by depositary shares
with each depositary share representing a one-hundredth interest in a share of
Series B Convertible Preferred Stock. The Series B Convertible Preferred Stock
has an annual dividend rate equal to $287.50 ($2.875 per depositary share), or
5 3/4 percent, which was fixed at the date of issue. Shares of the Company's
Series B Convertible Preferred Stock may be converted into shares of the
Company's Common Stock at a conversion price of $29.6271 per share of Common
Stock (equivalent to a conversion rate of 1.6876 share of Common Stock for
each depositary share) at the option of the stockholder at any time. Resultant
fractional interests are paid in cash. The conversion rate is subject to
adjustment for certain stock dividends, subdivisions, splits and combinations,
certain distributions of assets and debt to holders of Common Stock, certain
reclassifications of Common Stock into other securities and certain
distributions of rights or warrants to purchase Common Stock at a price per
share less than the Common Stock's then market value. Shares of this series
are redeemable, at the option of the Company, on or after April 1, 1997,
through March 30, 2003, at an original redemption price of $5,172.50 ($51.7250
per depositary share), declining over such period to $5,028.75 ($50.2875 per
depositary share), and thereafter at their stated value of $5,000 per share
($50.00 per depositary share) plus accrued and unpaid dividends.
The shares of the outstanding Existing Preferred Stock (or with respect to
the Series E Preferred Stock and the Series B Convertible Preferred Stock, the
outstanding depositary shares representing such stock), are listed on the New
York Stock Exchange. First Chicago Trust Company of New York serves as
transfer agent, registrar and dividend disbursing agent for shares of the
Existing Preferred Stock and the depositary shares representing such stock.
The First National Bank of Chicago also serves as depositary for the shares of
Existing Preferred Stock represented by depositary shares.
In addition, on May 11, 1993, the Company issued 6,000,000 Preferred
Purchase Units each of which consisted of a 30-year subordinated debenture and
a purchase contract requiring the purchase by the holder thereof on May 10,
2023 (or earlier at the Company's election) of the Company's 7 1/2% Preferred
Stock at a purchase price of $25 per share. The Company may redeem any or all
of the Preferred Purchase Units at anytime after May 10, 1998, at par, and, as
a result, some or all of the 7 1/2% Preferred Stock may not be issued by the
Company. The 7 1/2% Preferred Stock would rank prior to the Company's Common
Stock, but would have no voting rights except if the Preferred Purchase Units
were in default or the Certificate of Incorporation was proposed to be amended
in a manner adverse to the holders of the 7 1/2% Preferred Stock. The 7 1/2%
Preferred Stock would rank pari passu with each other series of Existing
Preferred Stock with respect to dividends and liquidation rights. The 7 1/2%
Preferred Stock, if issued, would not be convertible into other securities of
the Company. The shares of preferred stock which could be issued pursuant to
the purchase contracts have been reserved by the Company on its stock records.
DESCRIPTION OF PREFERRED STOCK WARRANTS
The Company may issue Preferred Stock Warrants for the purchase of Preferred
Stock. Preferred Stock Warrants may be issued independently or together with
other Securities offered by any Prospectus Supplement and may be attached to
or separate from such other Securities. Each series of Preferred Stock
Warrants will be issued under one or more warrant agreements (each a
"Preferred Stock Warrant Agreement") to be entered into between the Company
and a bank or trust company, as preferred stock warrant agent which will be
designated in the applicable Prospectus Supplement (the "Preferred Stock
Warrant Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Preferred Stock Warrants. The Preferred Stock Warrant
Agent will act solely as an agent of the Company in connection with the
Preferred Stock Warrants and will not assume any obligation or relationship of
agency or trust for or with any holders of Preferred Stock Warrant
Certificates or beneficial owners of Preferred Stock Warrants. The following
summaries of certain provisions of the form of Preferred Stock Warrant
Agreement and form of certificate representing the Preferred Stock Warrants
(the "Preferred Stock Warrant Certificates") do not purport to be complete and
are subject to and are qualified in their entirety by reference to, all the
provisions of the Preferred Stock Warrant Agreement and the Preferred Stock
Warrant Certificates which Agreement and Certificate will be filed as an
exhibit to or incorporated by reference in the Registration Statement of which
this Prospectus forms a part.
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GENERAL
If Preferred Stock Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Preferred Stock Warrants, including
the following, where applicable: (1) the offering price; (2) the designation,
aggregate number and terms of the series of Preferred Stock purchasable upon
exercise of such Preferred Stock Warrants and minimum number of Preferred
Stock Warrants that are exercisable; (3) the designation and terms of the
series of Preferred Stock with which such Preferred Stock Warrants are being
offered and the number of such Preferred Stock Warrants being offered with
each such Preferred Stock; (4) the date on and after which such Preferred
Stock Warrants and the related series of Preferred Stock will be transferable
separately; (5) the number and stated values of the series of Preferred Stock
purchasable upon exercise of each such Preferred Stock Warrant and the price
at which such number of shares of Preferred Stock of such series may be
purchased upon such exercise; (6) the date on which the right to exercise such
Preferred Stock Warrants shall commence and the date on which such right shall
expire (the "Preferred Stock Warrant Expiration Date"); (7) whether the
Preferred Stock Warrants represented by the Preferred Stock Warrant
Certificates will be issued in registered or bearer form; (8) information with
respect to book-entry procedures, if any; and (9) any other terms of such
Preferred Stock Warrants for the purchase of shares of Preferred Stock.
Preferred Stock Warrant Certificates may be exchanged for new Preferred
Stock Warrant Certificates of different denominations, may (if in registered
form) be presented for registration of transfer, and may be exercised at the
corporate trust office of the Preferred Stock Warrant Agent or any other
office indicated in the applicable Prospectus Supplement. Prior to the
exercise of any Preferred Stock Warrant, a holder thereof shall have no rights
of a holder of shares of the Preferred Stock purchasable upon such exercise,
including the right to receive payment of dividends, if any, on the underlying
Preferred Stock or the right to vote such underlying Preferred Stock.
Prospective purchasers of Preferred Stock Warrants should be aware that
special U.S. Federal income tax, accounting and other considerations may be
applicable to instruments such as Preferred Stock Warrants. The Prospectus
Supplement relating to any issue of Preferred Stock Warrants will describe
such considerations.
EXERCISE OF PREFERRED STOCK WARRANTS
Each Preferred Stock Warrant will entitle the holder thereof to purchase
such number of shares of Preferred Stock at such exercise price as shall be
set forth in, or calculable from, the Prospectus Supplement relating to the
offered Preferred Stock Warrants. After the close of business on the Preferred
Stock Warrant Expiration Date (or such later date to which such Preferred
Stock Warrant Expiration Date may be extended by the Company), unexercised
Preferred Stock Warrants will become void.
Preferred Stock Warrants may be exercised by delivery to the Preferred Stock
Warrant Agent of payment as provided in the applicable Prospectus Supplement
of the amount required to purchase the shares of Preferred Stock purchasable
upon such exercise together with certain information set forth on the reverse
side of the Preferred Stock Warrant Certificate. Preferred Stock Warrants will
be deemed to have been exercised upon receipt of the exercise price, subject
to the receipt, within five business days, of the Preferred Stock Warrant
Certificate evidencing such Preferred Stock Warrants. Upon receipt of such
payment and the Preferred Stock Warrant Certificate properly completed and
duly executed at the corporate trust office of the Preferred Stock Warrant
Agent or any other office indicated in the applicable Prospectus Supplement,
the Company will, as soon as practicable, issue and deliver the shares of
Preferred Stock purchasable upon such exercise. If fewer than all of the
Preferred Stock Warrants represented by such Preferred Stock Warrant
Certificate are exercised, a new Preferred Stock Warrant Certificate will be
issued for the remaining number of Preferred Stock Warrants.
MODIFICATIONS
The Preferred Stock Warrant Agreement and the terms of the Preferred Stock
Warrants may be amended by the Company and the Preferred Stock Warrant Agent,
without the consent of the holders, for the purpose of
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curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent provision contained therein, or in any other manner which the
Company may deem necessary or desirable and which will not materially and
adversely affect the interests of the owners.
The Company and the Preferred Stock Warrant Agent also may modify or amend
the Preferred Stock Warrant Agreement and the terms of the Preferred Stock
Warrants, with the consent of the holders of not less than a majority in
number of the then outstanding unexercised Preferred Stock Warrants affected,
provided that no such modification or amendment that shortens the period of
time during which the Preferred Stock Warrants may be exercised, increases the
exercise price of such Preferred Stock Warrants or otherwise materially and
adversely affects the exercise rights of the holders of the Preferred Stock
Warrants or reduces the number of outstanding Preferred Stock Warrants the
consent of whose holders is required for modification or amendment of the
Preferred Stock Warrant Agreement or the terms of the Preferred Stock Warrants
may be made without the consent of the holders affected thereby.
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS
If at any time there shall be a merger, consolidation, sale, transfer,
conveyance or other disposition of substantially all of the assets of the
Company, then the successor or assuming corporation shall succeed to and be
substituted for the Company in, and the Company will be relieved of any
further obligation under, the Preferred Stock Warrant Agreement or the
Preferred Stock Warrants.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of Common
Stock. Common Stock Warrants may be issued independently or together with
other Securities offered by any Prospectus Supplement and may be attached to
or separate from such Securities. Each series of Common Stock Warrants will be
issued under one or more warrant agreements (each a "Common Stock Warrant
Agreement") to be entered into between the Company and a bank or trust
company, as common stock warrant agent which will be designated in the
applicable Prospectus Supplement (the "Common Stock Warrant Agent"), all as
set forth in the Prospectus Supplement relating to the particular issue of
Common Stock Warrants. The Common Stock Warrant Agent will act solely as an
agent of the Company in connection with the Common Stock Warrants and will not
assume any obligation or relationship of agency or trust for or with any
holders or beneficial owners of Common Stock Warrants. The following summaries
of certain provisions of the form of Common Stock Warrant Agreement and
certificate representing Common Stock Warrants (the "Common Stock Warrant
Certificates") do not purport to be complete and are subject to and are
qualified in their entirety by reference to, all the provisions of the Common
Stock Warrant Agreement and the Common Stock Warrant Certificate which
Agreement and Certificate will be filed as an exhibit to or incorporated by
reference in the Registration Statement which this Prospectus forms a part of.
GENERAL
If Common Stock Warrants are offered, the related Prospectus Supplement will
describe the terms of such Common Stock Warrants, including the following,
where applicable: (1) the offering price; (2) the aggregate number of shares
of Common Stock purchasable upon exercise of such Common Stock Warrants and
minimum number of Common Stock Warrants that are exercisable; (3) the number
of shares of Common Stock with which such Common Stock Warrants are being
offered and the number of such Common Stock Warrants being offered with each
such share of Common Stock; (4) the date on and after which such Common Stock
Warrants and the related shares of Common Stock will be transferable
separately; (5) the number of shares of Common Stock purchasable upon exercise
of each such Common Stock Warrant and the price at which such number of shares
of Common Stock may be purchased upon such exercise; (6) the date on which the
right to exercise such Common Stock Warrants shall commence and the date on
which such right shall expire (the "Common Stock Warrant Expiration Date");
(7) whether the Common Stock Warrants represented by the Common Stock Warrant
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Certificates will be issued in registered or bearer form; (8) information with
respect to book-entry procedures, if any; and (9) any other terms of such
Common Stock Warrants for the purchase of shares of Common Stock which shall
not be inconsistent with the provisions of the Common Stock Warrant
Agreements.
Common Stock Warrant Certificates may be exchanged for new Common Stock
Warrant Certificates of different denominations, may (if in registered form)
be presented for registration of transfer, and may be exercised at the
corporate trust office of the Common Stock Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. Prior to the exercise of
any Common Stock Warrants to purchase Common Stock, holders of such Common
Stock Warrants will not have any rights of holders of shares of the Common
Stock purchasable upon such exercise, including the right to receive payments
of dividends, if any, on the Common Stock purchasable upon such exercise or to
exercise any applicable right to vote.
Prospective purchasers of Common Stock Warrants should be aware that special
U.S. Federal income tax, accounting and other considerations may be applicable
to instruments such as Common Stock Warrants. The Prospectus Supplement
relating to any issue of Common Stock Warrants will describe such
considerations.
EXERCISE OF COMMON STOCK WARRANTS
Each Common Stock Warrant will entitle the holder thereof to purchase such
number of shares of Common Stock at such exercise price as shall be set forth
in, or calculable from, the Prospectus Supplement relating to the Common Stock
Warrants. After the close of business on the Common Stock Warrant Expiration
Date (or such later date to which such Common Stock Warrant Expiration Date
may be extended by the Company), unexercised Common Stock Warrants will become
void.
Common Stock Warrants may be exercised by delivery to the Common Stock
Warrant Agent of payment as provided in the applicable Prospectus Supplement
of the amount required to purchase the shares of Common Stock purchasable upon
such exercise together with certain information set forth on the reverse side
of the Common Stock Warrant Certificate. Common Stock Warrants will be deemed
to have been exercised upon receipt of the exercise price, subject to the
receipt, within five business days, of the Common Stock Warrant Certificate
evidencing such Common Stock Warrants. Upon receipt of such payment and the
Common Stock Warrant Certificate properly completed and duly executed at the
corporate trust office of the Common Stock Warrant Agent or any other office
indicated in the applicable Prospectus Supplement, the Company will, as soon
as practicable, issue and deliver the shares of Common Stock purchasable upon
such exercise. If fewer than all of the Common Stock Warrants represented by
such Common Stock Warrant Certificate are exercised, a new Common Stock
Warrant Certificate will be issued for the remaining amount of Common Stock
Warrants.
MODIFICATIONS
The Common Stock Warrant Agreement and the terms of the Common Stock
Warrants may be amended by the Company and the Common Stock Warrant Agent,
without the consent of the holders, for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective or inconsistent
provision contained therein, or in any other manner which the Company may deem
necessary or desirable and which will not materially and adversely affect the
interests of the owners.
The Company and the Common Stock Warrant Agent also may modify or amend the
Common Stock Warrant Agreement and the terms of the Common Stock Warrants,
with the consent of the holders of not less than a majority in number of the
then outstanding unexercised Common Stock Warrants affected, provided that no
such modification or amendment that shortens the period of time during which
the Common Stock Warrants may be exercised, increases the exercise price of
such Common Stock Warrants or otherwise materially and adversely affects the
exercise rights of the holders of the Common Stock Warrants or reduces the
number of outstanding Common Stock Warrants the consent of whose holders is
required for modification or amendment of the Common Stock Warrant Agreement
or the terms of the Common Stock Warrants may be made without the consent of
the holders affected thereby.
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COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by a
Common Stock Warrant, will be subject to adjustment in certain events,
including: (i) dividends (and other distributions) payable in the Common Stock
on any class of capital stock of the Company; (ii) subdivision, combinations
and reclassifications of Common Stock; (iii) the issuance to all holders of
Common Stock of certain rights or warrants entitling them to subscribe for or
purchase Common Stock, at less than the current market price (as defined in
the Common Stock Warrant Agreement for such series of Common Stock Warrants);
and (iv) the distribution to all holders of Common Stock of evidences of
indebtedness or assets of the Company (including securities, but excluding
those dividends and distributions referred to above and dividends and
distributions paid in cash out of surplus or retained earnings of the Company)
or rights or warrants (excluding those referred to above) of the Company,
subject to the limitation that all adjustments by reason of any of the
foregoing need not be made until they result in a cumulative change in the
exercise price of at least 1%.
In the event that the Company shall distribute or shall have distributed any
rights or warrants to acquire capital stock pursuant to clause (iv) of the
preceding paragraph ("Capital Stock Rights"), pursuant to which separate
certificates representing such Capital Stock Rights are distributed subsequent
to the initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Common Stock Warrants), the subsequent distribution shall be deemed to be
the distribution of such Capital Stock Rights; provided, however, that the
Company may, in lieu of making any adjustment in the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant upon a
distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each holder of such a Common Stock Warrant who
exercises such Common Stock Warrant (or any portion thereof) (a) on or before
the record date for such distribution of separate certificates shall be
entitled to receive upon such exercise shares of Common Stock issued with
Capital Stock Rights and (b) after such record date and prior to the
expiration, redemption or termination of such Capital Stock Rights shall be
entitled to receive upon such exercise, in addition to the shares of Common
Stock issuable upon such exercise, the same number of such Capital Stock
Rights as would a holder of the number of shares of Common Stock that such
Common Stock Warrant so exercised would have entitled the holder thereof to
acquire in accordance with the terms and provisions applicable to the Capital
Stock Rights if such Common Stock Warrant were exercised immediately prior to
the record date for such distribution. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment.
In the event the Company shall effect any capital reorganization or
reclassification of its shares or shall consolidate, merge or engage in a
statutory share exchange with or into any other corporation (other than a
consolidation, merger or share exchange into which the Company is the
surviving corporation) or shall sell or transfer substantially all its assets
to any other corporation for a consideration consisting in whole or in part of
equity securities of such other corporation, the holders of the Common Stock
Warrants then outstanding will be entitled thereafter to exercise such Common
Stock Warrants to acquire the kind and amount of stock and other securities,
cash or property which they would have received in connection with such
transaction had such Common Stock Warrants been exercised immediately prior to
such transaction.
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS
If at any time there shall be a merger, consolidation, sale, transfer,
conveyance or other disposition of substantially all of the assets of the
Company, then the successor or assuming corporation shall succeed to and be
substituted for the Company in, and the Company will be relieved of any
further obligation under, the Common Stock Warrant Agreement or the Common
Stock Warrants.
35
<PAGE>
DESCRIPTION OF THE COMPANY'S COMMON STOCK
GENERAL
The Company is authorized to issue 750,000,000 shares of Common Stock. As of
December 31, 1995, there were outstanding 315,241,109 shares of the Company's
Common Stock.
Holders of the Company's Common Stock are entitled to receive dividends
when, as and if declared by the Board of Directors out of any funds legally
available therefor, and are entitled upon liquidation, after claims of
creditors and preferences of the Company's preferred stock and any other
series of preferred stock hereafter authorized, to receive pro rata the net
assets of the Company.
The holders of the Common Stock are entitled to one vote for each share held
and are vested with all of the voting power except as the Board of Directors
of the Company has provided with respect to the outstanding shares of the
Company's preferred stock or may provide, in the future, with respect to any
other series of preferred stock which it may hereafter authorize.
The shares of Common Stock have non-cumulative voting rights, which means
that the holders of more than 50% of the shares of Common Stock voting for the
election of directors can elect 100% of the directors standing for election at
any meeting if they choose to do so and, in such event, the holders of the
remaining shares voting for the election of directors will not be able to
elect any person or persons to the Board of Directors of the Company at that
meeting.
The Company's Certificate of Incorporation contains specific provisions with
respect to the election of directors, which include the provision that the
Board of Directors of the Company is divided into three classes, each having a
number of directors as nearly equal as possible, and each class being elected
for a three-year term, with one class being elected each year. The Certificate
of Incorporation also includes specific provisions with respect to mergers and
other business combinations. In general, these provisions require that, in the
case of a proposed merger or other business combination involving the Company
and an Interested Stockholder (as defined therein), the approving vote of the
holders of at least a majority of the voting power of all shares of voting
stock held by persons who are not Interested Stockholders or persons
affiliated with Interested Stockholders is required, unless the business
combination has been approved by a majority of directors not affiliated with
the Interested Stockholder or unless certain conditions regarding minimum
price and procedural protections are met with respect to each class of the
Company's then outstanding voting stock. The provisions of the Certificate of
Incorporation also require that the Board of Directors will not approve a
proposal for a business combination or a tender offer until the Board of
Directors has evaluated the proposal in light of its effect on the
stockholders and employees of the Company and the communities served by the
Company. These provisions of the Certificate of Incorporation could be used to
make more difficult a change in control of the Company.
The holders of the Company's Common Stock do not have any preemptive rights
to subscribe for additional shares of capital stock of the Company. The
holders of Common Stock have no conversion rights, the Common Stock is not
subject to redemption by either the Company or a stockholder, and there is no
restriction on the purchase by the Company of shares of Common Stock except
for certain regulatory limits.
The Company's Common Stock is listed on the New York, Chicago and Pacific
Stock Exchanges. First Chicago Trust Company of New York is the transfer
agent, registrar and dividend disbursing agent for the Common Stock.
PLAN OF DISTRIBUTION
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from
time to time), at market prices prevailing at the time of sale, at
36
<PAGE>
prices related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the
Securities offered therein.
The Company may sell Securities directly, through agents designated from
time to time, through underwriting syndicates led by one or more managing
underwriters or through one or more underwriters acting alone. Each Prospectus
Supplement will set forth the terms of the Securities to which such Prospectus
Supplement relates, including the name or names of any underwriters or agents
with whom the Company has entered into arrangements with respect to the sale
of such Securities, the public offering or purchase price of such Securities
and the net proceeds to the Company from such sale, any underwriting discounts
and other items constituting underwriters' compensation, any discounts and
commissions allowed or paid to dealers, if any, any commissions allowed or
paid to agents, and the securities exchange or exchanges, if any, on which
such Securities will be listed. Dealer trading may take place in certain of
the Securities, including Securities not listed on any securities exchange.
Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through
one or more underwriters acting alone. The underwriter or underwriters with
respect to each underwritten offering of Securities will be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth
on the cover page of such Prospectus Supplement. Unless otherwise set forth in
the applicable Prospectus Supplement, the obligations of the underwriters to
purchase the Securities will be subject to certain conditions precedent and
each of the underwriters with respect to a sale of Securities will be
obligated to purchase all of its Securities if any are purchased. Any initial
public offering price and any discounts or concession allowed or reallowed or
paid to dealers may be changed from time to time.
Securities may be offered and sold by the Company through agents designated
by the Company from time to time. Any agent involved in the offer and sale of
any Securities will be named, and any commissions payable by the Company to
such agent will be set forth, in the Prospectus Supplement relating to such
offering. Unless otherwise indicated in such Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
Offers to purchase Securities may be solicited directly by the Company and
sales thereof may be made by the Company directly to institutional investors
or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The terms of any such sales
will be described in the Prospectus Supplement relating thereto.
The anticipated place and time of delivery of Securities will be set forth
in the applicable Prospectus Supplement.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Securities from the Company pursuant to delayed delivery contracts
providing for payment and delivery at a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved
by the Company. Unless otherwise set forth in the applicable Prospectus
Supplement, the obligations of any purchaser under any such contract will not
be subject to any conditions except that (i) the purchase of the Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject, and (ii) if the Securities
are also being sold to underwriters acting as principals for their own
account, the underwriters shall have purchased such Securities not sold for
delayed delivery. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
Any underwriter or agent participating in the distribution of the Securities
may be deemed to be an underwriter, as that term is defined in the Securities
Act, of the Securities so offered and sold and any discounts
37
<PAGE>
or commissions received by them from the Company and any profit realized by
them on the sale or resale of the Securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
Underwriters and agents may be entitled, under agreements entered into with
the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which such underwriters or agents may be
required to make in respect thereof. Certain of any such underwriters and
agents, including their associates, may be customers of, engage in
transactions with and perform services for, the Company and its subsidiaries
in the ordinary course of business.
First Chicago Capital Markets, Inc. ("FCCM"), an affiliate of the Company,
may from time to time act as an agent or underwriter in connection with the
sale of Securities to the extent permitted by applicable law. The
participation of FCCM in the offer and sale of the Securities will comply with
Schedule E of the By-laws of the National Association of Securities Dealers,
Inc. regarding the offer and sale of securities of an affiliate.
This Prospectus and related Prospectus Supplements may be used by FCCM in
connection with offers and sales related to secondary market transactions in
Securities. FCCM, to the extent permitted by law, may act as principal or
agent in such transactions. Such sales will be made at prices related to
prevailing market prices at the time of sale.
LEGAL OPINIONS
Certain legal matters relating to the Securities offered hereby will be
passed upon for the Company by its General Counsel and for any underwriters,
selling agents and certain other purchasers by Cravath, Swaine & Moore,
Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019. Cravath, Swaine
& Moore has represented and continues to represent the Company from time to
time in other matters.
EXPERTS
The consolidated financial statements of NBD incorporated in this Prospectus
by reference from NBD's Annual Report on Form 10-K for the year ended December
31, 1994, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The consolidated financial statements of First Chicago incorporated by
reference in the Annual Report on Form 10-K for the year ended December 31,
1994, incorporated herein by reference have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto, and are incorporated herein by reference in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
report.
The supplemental consolidated financial statements of the Company appearing
in the Current Report on Form 8-K dated December 4, 1995 have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
38
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee.......... $ 637,932
Blue Sky Fees and Expenses................................... 20,000*
Accounting Fees and Expenses................................. 190,000*
Legal Fees and Expenses...................................... 40,000*
Printing and Engraving....................................... 150,000*
Fees and Expenses of Trustees................................ 60,000*
Paying Agent Fees............................................ 25,000*
Rating Agency Fees........................................... 350,000*
Miscellaneous................................................ 50,000*
----------
Total.................................................... $1,522,932*
==========
</TABLE>
- --------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware contains detailed
provisions on indemnification of directors and officers of a Delaware
corporation against expenses, judgments, fines and amounts paid in settlement,
actually and reasonably incurred in connection with litigation.
Article Eighth of the Registrant's Restated Certificate of Incorporation, as
amended, provides for indemnification of directors and officers. The provision
provides that any person shall be indemnified and reimbursed by the Registrant
for expenses and liabilities imposed upon the person in connection with any
action, suit or proceeding, civil or criminal, or threat thereof, in which the
person may be involved by reason of the person being or having been a
director, officer, employee or agent of the Registrant, or of any corporation
or organization which the person served in any capacity at the request of the
Registrant, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful; provided,
however, that no indemnification shall be made in respect of any matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of the person's duty to the Registrant unless
the Court of Chancery of Delaware or the court in which such action or suit
was brought shall determine upon application that such person is fairly and
reasonably entitled to indemnity.
The directors and officers of the Registrant are covered by an insurance
policy, indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
ITEM 16. EXHIBITS.
This Registration Statement includes the following Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S> <C>
1(a) Form of Debt Securities and Warrants Underwriting Agreement*
1(b) Form of Debt Securities Distribution Agreement*
1(c) Form of Preferred Stock Underwriting Agreement**
1(d) Form of Common Stock Underwriting Agreement**
4(a) Form of Indenture dated as of December 1, 1995, between the
Registrant and Marine Midland Bank, as Trustee*
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S> <C>
4(b) Form of Indenture dated as of December 1, 1995, between the
Registrant and The Chase Manhattan Bank (National Associa-
tion), as Trustee*
4(d)(1) Form of Debt Warrant Agreement (for Warrants attached to
Debt Securities, including form of Debt Warrant Certifi-
cate)**
4(d)(2) Form of Debt Warrant Agreement (for Warrants not attached
to Debt Securities, including form of Debt Warrant Certifi-
cate)**
4(e) Form of Foreign Currency Warrant Agreement (including form
of Global Warrant Certificate)**
4(f)(1) Form of Senior Note*
4(f)(2) Form of Subordinated Note*
4(f)(3) Form of Medium-Term Note (Fixed Rate)*
4(f)(4) Form of Medium-Term Note (Floating Rate)*
4(f)(5) Form of Subordinated Medium-Term Note (Fixed Rate)*
4(f)(6) Form of Subordinated Medium-Term Note (Floating Rate)*
4(g) Restated Certificate of Incorporation, as amended
4(h) By-laws of Registrant, as amended [incorporated by refer-
ence to Exhibit 4(b) to the Registrant's Current Report on
Form 8-K dated December 4, 1995, File No. 1-7127]
4(i) Form of Certificate of Designation, Preferences, Rights and
Limitations relating to Preferred Stock**
4(j) Form of Deposit Agreement, with form of Depositary Receipt
as an exhibit thereto**
4(k) Form of Other Warrant Agreement (including form of Other
Warrant Certificate)**
4(l) Form of Stock Index Warrant Agreement (including form of
Stock Index Warrant Certificate)**
4(m) Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate)**
4(n) Form of Preferred Stock Warrant Agreement (including form
of Preferred Stock Warrant Certificate)**
5(a) Form of Opinion of Counsel for the Registrant (including
Consent of Counsel for the Registrant)
12 Computation of the Ratios of Earnings to Fixed Charges*
23(a) Consent of Counsel for the Registrant (included in Exhibit
5(a))
23(b) Consent of Arthur Andersen LLP
23(c) Consent of Arthur Andersen LLP
23(d) Consent of Deloitte & Touche LLP
24 Power of Attorney*
25(a) Form T-1 Statement of Eligibility and Qualification of Ma-
rine Midland Bank, as Trustee under the Indenture dated as
of December 1, 1995*
25(b) Form T-1 Statement of Eligibility and Qualification of The
Chase Manhattan Bank (National Association) as Trustee un-
der the Indenture dated as of December 1, 1995*
</TABLE>
- --------
*Previously filed.
**To be incorporated herein by reference.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933
(other than as provided in Item 512 of Regulation S-K); (ii) to reflect in
the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement (other
than as provided in Item 512 of Regulation S-K). Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of Prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and (iii)
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1
TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF CHICAGO, AND STATE OF ILLINOIS, ON
THE 31ST DAY OF JANUARY, 1996.
First Chicago NBD Corporation
/s/ M. Eileen Kennedy
By___________________________________
M. Eileen Kennedy
Attorney-in-Fact
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS
IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Terence E. Adderley* Director
- ------------------------------------
(Terence E. Adderley)
James K. Baker* Director
- ------------------------------------
(James K. Baker)
John H. Bryan* Director
- ------------------------------------
(John H. Bryan)
Director
- ------------------------------------
(Siegfried Buschmann)
James S. Crown* Director
- ------------------------------------
(James S. Crown)
Maureen A. Fay, O.P.* Director January 31, 1996
- ------------------------------------
(Maureen A. Fay, O.P.)
Charles T. Fisher III* Director
- ------------------------------------
(Charles T. Fisher III)
Donald V. Fites* Director
- ------------------------------------
(Donald V. Fites)
Verne G. Istock* Director and Principal
- ------------------------------------ Executive Officer
(Verne G. Istock)
Thomas H. Jeffs II* Director
- ------------------------------------
(Thomas H. Jeffs II)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Richard A. Manoogian* Director
- ------------------------------------
(Richard A. Manoogian)
Scott P. Marks, Jr.* Director
- ------------------------------------
(Scott P. Marks, Jr.)
William T. McCormick, Jr.* Director
- ------------------------------------
(William T. McCormick, Jr.)
Earl L. Neal* Director
- ------------------------------------
(Earl L. Neal)
James J. O'Connor* Director
- ------------------------------------
(James J. O'Connor)
Thomas E. Reilly, Jr.* Director
- ------------------------------------
(Thomas E. Reilly, Jr.
Patrick G. Ryan* Director January 31, 1996
- ------------------------------------
(Patrick G. Ryan)
Adele Simmons* Director
- ------------------------------------
(Adele Simmons)
Richard L. Thomas* Director
- ------------------------------------
(Richard L. Thomas)
David J. Vitale* Director
- ------------------------------------
(David J. Vitale)
Robert A. Rosholt* Principal Financial Officer
- ------------------------------------
(Robert A. Rosholt)
William J. Roberts* Principal Accounting Officer
- ------------------------------------
(William J. Roberts)
</TABLE>
- --------
*The undersigned, by signing her name hereto, does hereby sign this Amendment
No. 1 to the Registration Statement on behalf of each of the above-
indicated directors and officers of the Registrant pursuant to a power of
attorney signed by such directors and officers.
/s/ M. Eileen Kennedy
-------------------------------------
M. Eileen Kennedy
Attorney-in-Fact
II-5
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION OF
FIRST CHICAGO NBD CORPORATION
(As last amended effective December 30, 1995)
This Restated Certificate of Incorporation of First Chicago NBD
Corporation, originally incorporated in the State of Delaware under the name
National Detroit Corporation pursuant to a certificate of incorporation filed
July 14, 1972, amends the Restated Certificate of Incorporation last amended
effective October 28, 1993 and has been duly adopted in accordance with the
General Corporation Law of Delaware.
FIRST. The name of the corporation is
First Chicago NBD Corporation.
SECOND. The address of its registered office in the State of Delaware is
1209 Orange Street, County of New Castle, Wilmington, Delaware 19801. The name
of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 760,000,000 shares which shall be
divided into two classes as follows:
(a) 10,000,000 shares of Preferred Stock without par value (Preferred
Stock), which shall include, but not be limited to, Preferred Stock with
Cumulative and Adjustable Dividends, Series B; Preferred Stock with Cumulative
and Adjustable Dividends, Series C; 8.45% Cumulative Preferred Stock; and 5 3/4%
Cumulative Convertible Preferred Stock; Series B; and
(b) 750,000,000 shares of Common Stock of the par value of $1.00 per
share (Common Stock).
The designations, voting powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions of the above classes of stock and other general provisions relating
thereto shall be as follows and as set forth in Exhibits A-D attached hereto:
PART I
PREFERRED STOCK
(a) Shares of Preferred Stock may be issued in one or more series at such
time or times and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series shall be of equal rank and
identical in all respects except that the dates from
<PAGE>
which dividends accrue or accumulate with respect thereto may vary.
(b) The Board of Directors is expressly authorized at any time, and from
time to time, to provide for the issuance of shares of Preferred Stock in one or
more series, with such voting powers, full or limited, or without voting powers,
and with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the resolution or resolutions providing for
the issue thereof adopted by the Board of Directors, and as are not stated and
expressed in this Certificate of Incorporation, or any amendment thereto,
including (but without limiting the generality of the foregoing) the following:
(i) The distinctive designation and number of shares comprising such
series, which number may (except where otherwise provided by the Board of
Directors in creating such series) be increased or decreased (but not below the
number of shares then outstanding) from time to time by action of the Board of
Directors.
(ii) The dividend rate or rates on the shares of such series and the
relation which such dividends shall bear to the dividends payable on any other
class of capital stock or on any other series of Preferred Stock, the terms and
conditions upon which and the periods in respect of which dividends shall be
payable, whether and upon what conditions such dividends shall be cumulative
and, if cumulative, the date or dates from which dividends shall accumulate.
(iii) Whether the shares of such series shall be redeemable, and, if
redeemable, whether redeemable for cash, property or rights, including
securities of any other corporation, at the option of either the holder or the
corporation or upon the happening of a specified event, the limitations and
restrictions with respect to such redemption, the time or times when, the price
or prices or rate or rates at which, the adjustments with which and the manner
in which such shares shall be redeemable, including the manner of selecting
shares of such series for redemption if less than all shares are to be redeemed.
(iv) The rights to which the holders of shares of such series shall
be entitled, and the preferences, if any, over any other series (or of any other
series over such series), upon the voluntary or involuntary liquidation,
dissolution, distribution or winding up of the corporation, which rights may
vary depending on whether such liquidation, dissolution, distribution or winding
up is voluntary or involuntary, and, if voluntary, may vary at different dates.
(v) Whether the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund, and, if so, whether and
upon what conditions such purchase, retirement or sinking fund shall be
cumulative or noncumulative, the extent to which and the manner in which such
fund shall be applied to the purchase or redemption of the shares of such series
for retirement or to other corporate purposes and the terms and provisions
relative to the operation thereof.
- 2 -
<PAGE>
(vi) Whether the shares of such series shall be convertible into or
exchangeable for shares of any other class or of any other series of any class
of capital stock of the corporation, and, if so convertible or exchangeable, the
price or prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and conditions of such
conversion or exchange.
(vii) The voting powers, full and/or limited, if any, of the shares
of such series, and whether and under what conditions the shares of such series
(along or together with the shares of one or more other series having similar
provisions) shall be entitled to vote separately as a single class, for the
election of one or more additional directors of the corporation in case of
dividend arrearages or other specified events, or upon other matters.
(viii) Whether the issuance of any additional shares of such series,
or of any shares of any other series, shall be subject to restrictions as to
issuance, or as to the powers, preferences or rights of any such other series.
(ix) Any other preferences, privileges and powers and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of such series, as the Board of Directors may deem advisable and
as shall not be inconsistent with the provisions of this Restated Certificate of
Incorporation.
(c) Unless and except to the extent otherwise required by law or provided
in the resolution or resolutions of the Board of Directors creating any series
of Preferred Stock pursuant to this Part I, the holders of the Preferred Stock
shall have no voting power with respect to any matter whatsoever. In no event
shall the Preferred Stock be entitled to more than one vote in respect of each
share of stock.
(d) Shares of Preferred Stock redeemed, converted, exchanged, purchased,
retired or surrendered to the corporation, or which have been issued and
reacquired in any manner, may, upon compliance with any applicable provisions of
the General Corporation Law of the State of Delaware, be given the status of
authorized and unissued shares of Preferred Stock and may be reissued by the
Board of Directors as part of the series of which they were originally a part or
may be reclassified into and reissued as part of a new series or as a part of
any other series, all subject to the protective conditions or restrictions of
any outstanding series of Preferred Stock.
PART II
COMMON STOCK
(a) Except as otherwise required by law or by any amendment to this
Restated
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Certificate of Incorporation, each holder of Common Stock shall have one vote
for each share of stock held by him on all matters voted upon by the
stockholders.
(b) Subject to the preferential dividend rights, if any, applicable to
shares of Preferred Stock and subject to applicable requirements, if any, with
respect to the setting aside of sums for purchase, retirement or sinking funds
for Preferred Stock, the holders of Common Stock shall be entitled to receive,
to the extent permitted by law, such dividends as may be declared from time to
time by the Board of Directors.
(c) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of Preferred Stock, holders of Common Stock shall be
entitled to receive all of the remaining assets of the corporation of whatever
kind available for distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively. The Board of
Directors may distribute in kind to the holders of Common Stock such remaining
assets of the corporation, or may sell, transfer, or otherwise dispose of all or
any part of such remaining assets to any corporation, trust or entity, or any
combination thereof, and may sell all or any part of the consideration so
received and distribute any balance thereof in kind to holders of Common Stock.
The merger or consolidation of the corporation into or with any other
corporation, or the merger of any other corporation into it, or any purchase or
redemption of shares of stock of the corporation of any class, shall not be
deemed to be a dissolution, liquidation or winding up of the corporation for the
purposes of this paragraph.
(d) Such numbers of shares of Common Stock as may from time to time be
required for such purpose shall be reserved for issuance (i) upon conversion of
any shares of Preferred Stock or any obligation of the corporation convertible
into shares of Common Stock which is at the time outstanding or issuable upon
exercise of any options or warrants at the time outstanding and (ii) upon
exercise of any options or warrants at the time outstanding to purchase shares
of Common Stock.
PART III
GENERAL PROVISIONS
(a) At any meeting of stockholders, the presence in person or by proxy of
the holders of record of a majority of the outstanding shares of stock of the
corporation entitled to be voted at such meeting shall constitute a quorum for
all purposes, except as otherwise provided by this Restated Certificate of
Incorporation or required by applicable law.
(b) Subject to the protective conditions or restrictions of any
outstanding series of Preferred Stock, any amendment to this Restated
Certificate of Incorporation which shall increase or decrease the authorized
capital stock of any class or classes may be adopted by the affirmative
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vote of the holders of a majority of the stock of the corporation entitled to
vote.
(c) No holder of stock of any class of the corporation shall be entitled
as a matter of right to purchase or subscribe for any part of any unissued stock
of any class, or of any additional stock of any class of capital stock of the
corporation, or of any bonds, certificates of indebtedness, debentures, or other
securities, whether or not convertible into stock of the corporation, now or
hereafter authorized, but any such stock or other securities may be issued and
disposed of pursuant to resolution by the Board of Directors to such persons,
firms, corporations or associations and upon such terms and for such
consideration (not less than the par value or stated value thereof) as the Board
of Directors in the exercise of its discretion may determine and may be
permitted by law without action by the stockholders. The Board of Directors may
provide for payment therefor to be received by the corporation in cash, personal
property, real property (or leases thereof) or services. Any and all shares of
stock so issued for which the consideration so fixed has been paid or delivered,
shall be deemed fully paid and not liable to any further call or assessment.
FIFTH. Reserved.
SIXTH. Subject to any provision contained in any resolution of the Board of
Directors adopted pursuant to Part I of Article Fourth of this Certificate of
Incorporation requiring an increase or increases in the number of directors, the
number of directors constituting the Board of Directors shall be that number as
shall be fixed from time to time in the manner provided by Article Eleventh of
this Restated Certificate of Incorporation and by By-laws in conformity
therewith. Election of directors need not be by written ballot unless the By-
laws of the corporation shall so provide.
In addition to all of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter or repeal the By-laws of the
corporation.
Wherever the term "Board of Directors" is used in this Restated Certificate
of Incorporation, such term shall mean the Board of Directors of the
corporation; provided, however, that, to the extent any committee of directors
of the corporation is lawfully entitled to exercise the powers of the Board of
Directors, such committee may exercise any right or authority of the Board of
Directors under this Restated Certificate of Incorporation.
SEVENTH. No contract or transaction between the corporation and one or more
of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
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(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
EIGHTH. (a) The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith in a manner he
reasonably believed to be in or not opposed to the best
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interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of Delaware
or such other court shall deem proper. Any person entitled to indemnification
against expenses under this paragraph (b) shall, to the extent not prohibited by
the laws of Delaware and any other applicable law, also be entitled to
indemnification, and the corporation shall indemnify him, against judgments and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action or suit, upon the same terms and conditions and subject to the
same limitations as provided with respect to expenses.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on merits or otherwise in defense of any action,
suit or proceeding referred to in paragraphs (a) and (b) of this Article or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Article
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum (as defined in the By-laws of the corporation) consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the
stockholders. Notwithstanding the failure or refusal of the directors, counsel
and stockholders to make provision therefor, such indemnification shall be made
if a court of competent jurisdiction makes a determination that the director,
officer, employee or agent has a right to indemnification hereunder in any
specific case upon the application of such director, officer, employee or agent.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation.
(f) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any statute, by-law,
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agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(g) The corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article.
(h) For the purposes of this Article, references to "the corporation"
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation so that any person who is or was
a director, officer, employee or agent of such a constituent corporation or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity.
(i) Neither the corporation nor its directors or officers nor any person
acting on its behalf shall be liable to anyone for any determination as to the
existence or absence of conduct which would provide a basis for making or
refusing to make any payment under this Article or for taking or omitting to
take any other action under this Article, in reliance upon the advice of
counsel.
(j) A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the shareholders of this provision to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the shareholders
of the corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or modification.
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NINTH. The corporation shall have perpetual existence.
TENTH. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by the laws of Delaware, and all rights
conferred herein upon stockholders and directors are granted subject to this
reservation.
ELEVENTH. Board of Directors.
(a) Number, Election and Terms of Directors: The business and affairs of
the corporation shall be managed by or under the direction of a Board of
Directors. The number of the directors of the corporation shall be fixed from
time to time by resolution adopted by the affirmative vote of a majority of the
entire Board of Directors of the corporation, except that the minimum number of
directors shall be fixed at no less than 15 and the maximum number of directors
shall be fixed at no more than 30. The directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly equal in number as possible, of one-third of the total number of
directors constituting the entire Board of Directors. At the 1986 annual
meeting of stockholders, Class I directors shall be elected for a one-year term,
Class II directors for a two-year term and Class III directors for a three-year
term. At each succeeding annual meeting of stockholders beginning in 1987,
successors of the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible.
(b) Stockholder Nomination of Director Candidates: Nominations for
election to the Board of Directors of the corporation at a meeting of
stockholders may be made by the Board of Directors, on behalf of the Board of
Directors by any nominating committee appointed by the Board of Directors, or by
any stockholder of the corporation entitled to vote for the election of
directors at the meeting. Nominations, other than those made by or on behalf of
the Board of Directors, shall be made by notice in writing delivered to or
mailed, postage prepaid, and received by the Secretary of the corporation at
least 60 days but no more than 90 days prior to the anniversary date of the
immediately preceding Annual Meeting of Stockholders. The notice shall set forth
(i) the name and address of the stockholder who intends to make the nomination;
(ii) the name, age, business address and, if known, residence address of each
nominee; (iii) the principal occupation or employment of each nominee; (iv) the
number of shares of stock of the corporation which are beneficially owned by
each nominee and by the nominating stockholder; (v) any other information
concerning the nominee that must be disclosed of nominees in proxy solicitation
pursuant to Regulation 14A of the Securities Exchange Act of 1934 (or any
subsequent provisions replacing such Regulation); and (vi) the executed consent
of each nominee to serve as a director of the corporation, if elected. The
chairman of the meeting of stockholders may, if the facts warrant, determine
that a nomination was not made in accordance with the foregoing procedures, and
if the chairman should so determine, the chairman shall so declare to the
meeting and the
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defective nomination shall be disregarded.
(c) Newly Created Directorships and Vacancies: Newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum, or by a sole remaining director. Any director of any class chosen to
fill a vacancy in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director shall
hold office until the next annual meeting for the year in which his or her term
expires and until such director's successor shall have been elected and
qualified.
(d) Removal: Any director may be removed from office only for cause and
only by the affirmative vote of the holders of at least a majority of the voting
power of all the shares of the corporation entitled to vote generally in the
election of directors, voting together as a single class.
(e) Preferred Stock: Notwithstanding the foregoing paragraphs, whenever
the holders of any one or more classes or series of Preferred Stock issued by
the corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of the Certificate of Incorporation applicable
thereto. The then authorized number of directors of the corporation shall be
increased by the number of additional directors to be elected, and such
directors so elected shall not be divided into classes pursuant to this Article
Eleventh unless expressly provided by such terms.
(f) Amendment or Repeal: Notwithstanding anything contained in this
Certificate of Incorporation or the By-laws of the corporation to the contrary,
the affirmative vote of the holders of at least 80% of the voting power of all
the shares of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend,
repeal or adopt any provision inconsistent with the purpose and intent of this
Article Eleventh.
TWELFTH. Stockholder Action.
Any action required or permitted to be taken by any stockholders of the
corporation must be effected at a duly called annual or special meeting of such
stockholders and may not be effected by any consent in writing by such
stockholders. Except as may be otherwise required by law, special meetings of
stockholders of the corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the Board of Directors.
Notwithstanding anything contained in this Certificate of Incorporation or the
By-laws of the corporation to the contrary, the affirmative vote of at least 80%
of the voting power of all the shares of the corporation entitled to vote
generally in the election of directors, voting together
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as a single class, shall be required to alter, amend or adopt any provision
inconsistent with the purpose and intent of this Article Twelfth.
THIRTEENTH. (a) In addition to any affirmative vote required by law or by
or under this Restated Certificate of Incorporation or the By-laws and except as
otherwise expressly herein provided in this Article Thirteenth, the approval or
authorization of a Business Combination (which together with certain other terms
used in this Article, are hereinafter defined) shall require the affirmative
vote of a majority of the voting power of all the shares of Voting Stock held by
stockholders other than an Interested Stockholder, with which or by or on whose
behalf, directly or indirectly, a Business Combination is proposed, voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage or separate class vote may be otherwise required.
(b) The provisions of paragraph (a) of this Article shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or by or
under any other provision of this Restated Certificate of Incorporation, or the
By-laws of the corporation, or otherwise, if all the conditions specified in
either of the following paragraphs First or Second are met:
First: The Business Combination shall have been approved by a majority
(whether such approval is made prior to or subsequent to the acquisition of
beneficial ownership of the Voting Stock that caused the Interested Stockholder
to become an Interested Stockholder) of the Continuing Directors; or
Second: All of the following conditions shall have been met:
(1) The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration other
than cash to be received per share by holders of Common Stock in such Business
Combination shall be at least equal to the highest amount determined under
subparagraphs (i) and (ii) below:
(i) The highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by or on behalf
on the Interested Stockholder for any shares of Common Stock in connection with
the acquisition by the Interested Stockholder of beneficial ownership of shares
of Common Stock (a) within the two-year period immediately prior to the first
public announcement of the proposed Business Combination (the "Announcement
Date") or (b) in the transaction in which it became an Interested Stockholder,
whichever is higher; and
(ii) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested
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Stockholder (the "Determination Date"), whichever is higher.
All per share prices shall be adjusted to reflect any intervening stock
splits, stock dividends, and reverse stock splits.
(2) The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration other
than cash to be received per share by holders of shares of any class or series
of outstanding Voting Stock, other than Common Stock, shall be at least equal to
the highest amount determined under clauses (i), (ii), and (iii) below.
(i) The highest per share price (including any brokerage commissions,
transfer taxes, and soliciting dealers' fees) paid by or on behalf of the
Interested Stockholder for any share of such class or series of Voting Stock in
connection with the acquisition by the Interested Stockholder of beneficial
ownership of shares of such class or series of Voting Stock (a) within the two-
year period immediately prior to the Announcement Date or (b) in the transaction
in which it became an Interested Stockholder, whichever is higher.
(ii) The Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or on the Determination Date, whichever is
higher; and
(iii) The highest preferential amount per share to which the holders
of shares of such class or series of Voting Stock would be entitled, if any, in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the corporation, regardless of whether the Business Combination to be
consummated constitutes such an event.
All per share prices shall be adjusted for intervening stock splits,
stock dividends, and reverse stock splits.
The provisions of this paragraph Second (2) shall be required to be
met with respect to every class or series of outstanding Voting Stock, whether
or not the Interested Stockholder has previously acquired beneficial ownership
of any shares of a particular class or series of Voting Stock.
(3) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (i)
except as approved by a majority of the Continuing Directors, there shall have
been no failure to declare and pay at the regular date therefor any full
periodic dividends (whether or not cumulative) in accordance with the terms of
any outstanding Preferred Stock; (ii) there shall have been (a) no reduction in
the annual rate of dividend paid on the Common Stock (except as necessary to
reflect any stock split, stock dividend or subdivision of the Common Stock),
except as approved by a majority of the Continuing
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Directors, and (b) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization, or any similar transaction which has the
effect of reducing the number of outstanding shares of Common Stock, unless the
failure so to increase such annual rate is approved by a majority of the
Continuing Directors, and (iii) such Interested Stockholder shall have not
become the beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested Stockholder becoming an
Interested Stockholder and except in a transaction that, after giving effect
thereto, would not result in any increase in the Interested Stockholder's
percentage of beneficial ownership of any class or series of capital stock.
(4) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges, or other financial assistance or any tax credits
or other tax advantages provided by the corporation, whether in anticipation of
or in connection with such Business Combination or otherwise.
(5) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to
stockholders of the corporation at least 30 days prior to the consummation of
such Business Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
(6) Such Interested Stockholder shall not have made any major change
in the corporation's business or equity capital structure without the approval
of a majority of the Continuing Directors.
(c) For the purposes of this Article Thirteenth:
(i) The term "Business Combination" shall mean:
(a) any merger or consolidation of the corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder or (b) any other
company (whether or not such other company is an Interested Stockholder) which
is, or after such merger or consolidation would be, an Affiliate or Associate of
an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
or security arrangement, investment, loan, advance, guarantee, agreement to
purchase, agreement to pay, extension of credit, joint venture participation or
other arrangement (in one transaction or a series of transactions) with or for
the benefit of any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder involving any Substantial Part of the assets, securities
or commitments of the corporation, any Subsidiary or any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder; or
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(c) the adoption of any plan or proposal for the liquidation or dissolution of
the corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
(d) any reclassification of securities (including any reverse stock split), or
recapitalization of the corporation or any merger or consolidation of the
corporation with any of its Subsidiaries or any other transaction (whether or
not with or otherwise involving an Interested Stockholder) that has the effect,
directly or indirectly, of increasing the proportionate share of the outstanding
shares of any class or series of Voting Stock, or any securities convertible
into Voting Stock, or into equity securities of any Subsidiary, that is
beneficially owned by an Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder; or
(e) any agreement, contract, or other arrangement providing for any one or
more of the actions specified in the foregoing clauses (a) through (d).
(ii) The term "Voting Stock" shall mean all outstanding shares of
capital stock of the corporation of whatever class or series which is entitled
to vote under any circumstances in the election of directors of the corporation.
(iii) A "person" shall mean any individual, firm, corporation,
partnership, trust or other entity and shall include any group comprised of any
person and any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting, or disposing of
Voting Stock.
(iv) "Interested Stockholder" shall mean any person (other than the
corporation or any Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of the corporation or any Subsidiary or
any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who or which:
(a) is a person who is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the then outstanding Voting
Stock; or
(b) is an Affiliate or Associate of the corporation and at
any time within the two-year period immediately prior to the date in question
was the beneficial owner of 10% or more of the voting power of the then
outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public
- 14 -
<PAGE>
offering within the meaning of the Securities Act of 1933.
(v) A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has (1) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (2) the right to vote pursuant to any
agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock. For the purposes of
determining whether a person is an Interested Stockholder pursuant to paragraph
(c)(iv) of this Article, the number of shares of capital stock deemed to be
outstanding shall include shares deemed beneficially owned by such person
through application of paragraph (c)(v) of this Article but shall not include
any other shares of Voting Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(vi) An "Affiliate" of, or a person "affiliated" with, a specified
person, is a person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the person specified.
(vii) "Associate" used to indicate a relationship with any person,
means (1) any corporation or organization (other than the corporation or a
majority- owned subsidiary of the corporation) of which such person is an
officer or partner or is, directly or indirectly, the beneficial owner of 10% or
more of any class of equity securities, (2) any trust or other estate in which
such person has a substantial beneficial interest or as to which such person
serves as trustee or in a similar fiduciary capacity, and (3) any relative or
spouse of such person, or any relative of such spouse, who has the same home as
such person.
(viii) "Subsidiary" means any company of which a majority of any
class of equity security is owned, directly or indirectly, by the corporation.
(ix) The term "Substantial Part" shall mean an amount equal to or
greater than an amount equal to fifteen percent of the stockholders' equity of
the corporation as reflected in the most recent fiscal year-end consolidated
balance sheet of the corporation.
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<PAGE>
(x) "Continuing Director" means any member of the Board of Directors
of the corporation (the "Board") while such person is a member of the Board, who
is not an Affiliate or Associate or representative of the Interested Stockholder
and was a member of the Board prior to the time that the Interested Stockholder
became an Interested Stockholder, and any successor of a Continuing Director,
while such successor is a member of the Board, who is not an Affiliate or
Associate or representative of the Interested Stockholder and is recommended to
succeed the Continuing Director by a majority of Continuing Directors then on
the Board.
(xi) "Fair Market Value" means (a) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape
for the New York Stock Exchange, or if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations are
available, the Fair Market Value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good faith and
(b) in the case of property other than cash or stock, the Fair Market Value of
such property on the date in question as determined in good faith by a majority
of Continuing Directors then on the Board.
(xii) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be received"
as used in paragraphs (b) Second (1) and (2) of this Article shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
(d) The Board shall have the power and duty to determine for the purposes
of this Article Thirteenth, on the basis of information known to it after
reasonable inquiry (i) whether a person is an Interested Stockholder; (ii) the
number of shares of Voting Stock beneficially owned by any person; (iii) whether
a person is an Affiliate or Associate of another; (iv) whether the requirements
of paragraph (b) Second of this Article have been met with respect to any
Business Combination; and (v) whether any sale, lease, exchange, mortgage,
pledge, transfer or other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one transaction or
a series of transactions) with or for the benefit of any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder involving any
assets, securities or commitments of the corporation, any Subsidiary, or any
Interested Stockholder, or any Affiliate or Associate of any Interested
Stockholder constitutes a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties.
(e) The Board of Directors shall not approve, adopt or recommend any
proposal to
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<PAGE>
enter into a Business Combination, or any offer of any person, other than the
corporation, to make a tender or exchange offer for any capital stock of the
corporation, unless and until the Board of Directors shall first establish a
procedure for evaluating, and shall have evaluated, the proposal or offer, and
determined that it would be in compliance with all applicable laws and in the
best interests of the corporation and its stockholders. In connection with its
evaluation, the Board of Directors may seek and obtain the advice of independent
investment counsel, may seek and rely upon an opinion of legal counsel and other
independent advisers, and may test such compliance with laws in any state or
federal court or before any state or federal administrative agency which may
have appropriate jurisdiction. In connection with its evaluation as to the best
interests of the corporation and its stockholders, the Board of Directors shall
consider all factors which it deems relevant, or the stockholders might deem
relevant, including without limitation: (i) the adequacy and fairness of the
consideration to be received by the corporation and/or its stockholders
considering the future prospects for the corporation and its business,
historical trading prices of the corporation's capital stock, the price that
might be achieved in a negotiated sale of the corporation as a whole, and
premiums over trading prices which have been proposed or offered with respect to
the securities of other companies in the past in connection with similar offers;
(ii) the business, financial condition and earnings prospects of the acquiring
person or entity and the competence, experience and integrity of the acquiring
person or entity and their or its management, and (iii) the potential social and
economic impact of the offer and its consummation on the communities in which
the corporation and its subsidiaries operate or are located and upon the
corporation, its subsidiaries, and their employees, depositors, and loan and
other customers.
(f) The Board of Directors shall not approve, adopt or recommend any
offer of any person, other than the corporation, to make a tender or exchange
offer for any capital stock of the corporation in which the Fair Market Value
per share of the consideration to be received by one or more stockholders is
substantially more than the Fair Market Value per share of the consideration to
be received by other stockholders holding shares of the same class and series,
or any tender or exchange offer the consummation of which is reasonably likely,
in the good faith determination of the Board of Directors, in one transaction or
a series of transactions, to have that result.
(g) Nothing contained in this Article Thirteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
(h) The fact that any Business Combination complies with the provisions
of paragraph (b) Second of this Article Thirteenth shall not be construed to
impose any fiduciary duty, obligation, or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of the corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
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<PAGE>
(i) Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-laws of the corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this Restated Certificate of
Incorporation or the By-laws of the corporation), the affirmative vote of the
holders of at least 80% of the voting power of all the shares of the Voting
Stock, voting together as a single class, shall be required to alter, amend or
adopt any provisions inconsistent with or to repeal this Article Thirteenth;
provided, however, that if such action has been proposed, directly or
indirectly, on behalf of an Interested Stockholder, it must also be approved by
the affirmative vote of a majority of the voting power of all the shares of
Voting Stock held by stockholders other than such Interested Stockholder.
FOURTEENTH. This Restated Certificate of Incorporation shall be effective
at 12:01 a.m. Eastern Standard Time on December 30, 1995.
IN WITNESS WHEREOF, First Chicago NBD Corporation has caused its corporate
seal to be hereunto affixed and this Restated Certificate of Incorporation to be
signed by M. Eileen Kennedy, its Senior Vice President and Treasurer, and the
same to be attested by Michael Lipsitz, its Assistant Secretary, this 22nd day
of December, 1995.
FIRST CHICAGO NBD CORPORATION
By: _______________________
Senior Vice President and
Treasurer
(Corporate Seal)
ATTEST:
By: __________________________
Assistant Secretary
s:\secur\mxl\fcnbdinc.cer
<PAGE>
Exhibit A
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
RESTATED CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THEREOF, OF THE
PREFERRED STOCK WITH CUMULATIVE AND ADJUSTABLE DIVIDENDS,
SERIES B
(Without Par Value)
OF
FIRST CHICAGO NBD CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of FIRST CHICAGO NBD CORPORATION, formerly
known as NBD BANCORP, INC., a Delaware corporation (hereinafter called the
"Corporation"), at a meeting duly convened and held on July 11, 1995, at which a
quorum was present and acting throughout:
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of the Corporation, by the Restated Certificate of Incorporation,
as amended (the "Certificate of Incorporation") of the Corporation, the Board
hereby provides for and authorizes the issuance of a series of Preferred Stock
of the Corporation to consist of 1,191,000 shares, and hereby fixes the voting
powers, designation, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
(a) Designation.
------------
The designation of the series of Preferred Stock created by this resolution
shall be "Preferred Stock with Cumulative and Adjustable Dividends, Series B"
(hereinafter called this "Series") and the number of shares constituting this
Series is 1,191,000. Shares of this Series shall have a stated value of $100
per share. The number of authorized shares of this Series
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<PAGE>
may be reduced by further resolution duly adopted by the Board and by the filing
of a certificate pursuant to the provisions of the General Corporation Law of
the State of Delaware stating that such reduction has been so authorized, but
the number of authorized shares of this Series shall not be increased.
(b) Dividend Rate.
--------------
(1) Dividend rates on the shares of this Series shall be for each
quarterly dividend period (hereinafter referred to as a "Quarterly Dividend
Period"; and any Quarterly Dividend Period being hereinafter individually
referred to as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which Quarterly 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 Quarterly Dividend Period, at a rate
per annum of the stated value thereof 3.75% below the Applicable Rate (as
defined in paragraph (2) of this Section (b)) in respect of such Quarterly
Dividend Period. Anything to the contrary herein notwithstanding, the dividend
rate for any Quarterly Dividend Period shall in no event be less than 6.00% or,
greater than 12.00% per annum. Such dividends shall be cumulative from December
1, 1995, and shall be payable, when and as declared by the Board, on the last
day of February, May, August and November of each year, commencing the last day
of February, 1996. Each such dividend shall be paid to the holders of record of
shares of this Series 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. 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.
(2) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate or 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 one or more of such
rates cannot be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be the higher of whichever of
such rates can be so determined. In the event that the Corporation determines
in good faith that none of such rates can be determined for any Quarterly
Dividend Period, then the Applicable Rate in effect for the preceding Dividend
Period shall be continued for such Dividend Period.
(3) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly 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 by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately preceding the last day
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<PAGE>
of February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series 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 noninterest-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
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 U.S. Government securities dealers 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 Quarterly
Dividend Period as provided above in this paragraph, 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 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 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 U.S. Government securities dealers
selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly 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 ten calendar days immediately preceding the last day of
A - 3
<PAGE>
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series 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 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 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
Quarterly 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 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 U.S. Government securities dealers
selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly 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 ten calendar days immediately preceding the last day of
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series 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
A - 4
<PAGE>
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 Twenty Year Average Yield shall not be published by any 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 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
Quarterly 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 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 U.S. Government
securities dealers 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 dividend rate with respect to each Quarterly 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 each dividend rate to be
published in a newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it applies and will
cause notice of such dividend rate to be enclosed with the dividend payment
checks next mailed to the holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 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
A - 5
<PAGE>
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); and
(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 20 years).
(9) No full dividends shall be declared or paid or set apart for payment
on Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to this 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 this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon shares of this Series
and any other Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares of
this Series shall not be entitled to any dividend, whether payable in cash,
property or stocks, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(10) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (9) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys 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 this
Series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall have been
paid for all past dividend payment periods.
(11) Dividends payable on each share of this Series for each full
Quarterly Dividend Period shall be computed by dividing the dividend rate for
such Quarterly Dividend Period by
A - 6
<PAGE>
four and applying such rate against the stated value per share of this Series.
Dividends payable on this Series for any period less than a full Quarterly
Dividend Period shall be computed on the basis of a 360 day year consisting of
30 day months.
(c) Redemption.
-----------
(1) The Corporation, at its option, may redeem shares of this Series, as a
whole or in part, at any time or from time to time, at a redemption price of
$100 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 this Series
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board or by any other method as may be determined by
the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
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 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 this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (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 this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board 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 this Series which shall at any time have been redeemed
shall, after such redemption, have 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.
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<PAGE>
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
(d) Conversion or Exchange.
-----------------------
The holders of shares of this Series 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.
(e) Voting.
-------
The shares of this Series shall not have any voting powers either general
or special, except that
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66-2/3% of all of the shares of this Series 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 this Series 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 Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series and all other series of Preferred Stock
ranking on a parity with shares of this Series, either as to dividends or upon
liquidation, 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 this Series and such other series of Preferred Stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating the creation, authorization or issue of any
shares of any class of stock of the Corporation ranking prior to the shares of
this Series as to dividends or upon liquidation, or the reclassification of any
authorized stock of the Corporation into any such prior shares, or
the creation, authorization or issue of any obligation or security convertible
into or evidencing the right to purchase any such prior shares;
A - 8
<PAGE>
(3) If at any time a default in preference dividends on the Preferred
Stock shall exist, the number of directors constituting the Board of Directors
of the Corporation shall be increased by two, and the holders of the Preferred
Stock of all series shall have the right at an annual or special meeting of
stockholders, voting together as a single class without regard to series, to the
exclusion of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall continue
until there are no dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (herein called a "Preferred
Director") 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 a
default in preference dividends shall cease to exist. Any Preferred Director
may be removed by, and shall not be removed except by, the vote of the holders
of record of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at a meeting of the stockholders, or of
the holders of shares of Preferred Stock, called for that purpose. So long as a
default in any preference dividends on the Preferred Stock shall exist, (A) any
vacancy in the office of a Preferred Director may be filled (except as provided
in the following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be reduced by two.
For the purposes hereof, a "default in preference dividends" on the Preferred
Stock shall be deemed to have occurred whenever the amount of accrued dividends
upon any series of the Preferred Stock shall be equivalent to six full quarter-
yearly dividends or more, and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all accrued dividends on all shares
of Preferred Stock of each and every series then outstanding shall have been
paid to the end of the last preceding quarterly dividend period.
(f) Liquidation Rights.
-------------------
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $100 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the
A - 9
<PAGE>
Corporation, shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section (f).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (f), the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
(g) For purposes of this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if such stock is the Corporation's
Preferred Stock with Cumulative and Adjustable Dividends, Series C (Without Par
Value), the Corporation's 8.45% Cumulative Preferred Stock, Series E (Stated
Value $625 per share) or the Corporation's 5 3/4% Cumulative Convertible
Preferred Stock, Series B (Stated Value $5,000 per share), or if the holders of
such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this Series; and
A - 10
<PAGE>
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes."
A - 11
<PAGE>
The foregoing Certificate of Voting Powers, Designation, Preferences and
Relative, Participating, Optional and Other Special Rights and the
Qualifications, Limitations or Restrictions relating to this Series shall be
effective at 12:01 a.m. Eastern Standard Time on December 1, 1995 in accordance
with the provisions of Sections 103 and 151(g) of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, First Chicago NBD Corporation has caused this
certificate to be signed by Verne G. Istock, its Chief Executive Officer, and
the same to be attested by Daniel T. Lis, its Assistant Secretary, this 29th day
of November, 1995.
FIRST CHICAGO NBD CORPORATION
By: \s\ Verne G. Istock
-------------------------
Title: Chief Executive Officer
ATTEST:
By: \s\ Daniel T. Lis
---------------------------
Assistant Secretary
A - 12
<PAGE>
Exhibit B
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
RESTATED CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THEREOF, OF THE
PREFERRED STOCK WITH CUMULATIVE AND ADJUSTABLE DIVIDENDS,
SERIES C
(Without Par Value)
OF
FIRST CHICAGO NBD CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of FIRST CHICAGO NBD CORPORATION, formerly
known as NBD BANCORP, INC., a Delaware corporation (hereinafter called the
"Corporation"), at a meeting duly convened and held on July 11, 1995, at which a
quorum was present and acting throughout:
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of the Corporation, by the Restated Certificate of Incorporation,
as amended (the "Certificate of Incorporation") of the Corporation, the Board
hereby provides for and authorizes the issuance of a series of Preferred Stock
of the Corporation to consist of 713,800 shares, and hereby fixes the voting
powers, designation, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
(a) Designation.
------------
The designation of the series of Preferred Stock created by this resolution
shall be "Preferred Stock with Cumulative and Adjustable Dividends, Series C"
(hereinafter called this "Series") and the number of shares constituting this
Series is 713,800. Shares of this Series
B - 1
<PAGE>
shall have a stated value of $100 per share. The number of authorized shares of
this Series may be reduced by further resolution duly adopted by the Board and
by the filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such reduction has been so
authorized, but the number of authorized shares of this Series shall not be
increased.
(b) Dividend Rate.
--------------
(1) Dividend rates on the shares of this Series shall be for each
quarterly dividend period (hereinafter referred to as a "Quarterly Dividend
Period"; and any Quarterly Dividend Period being hereinafter individually
referred to as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which Quarterly 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 Quarterly Dividend Period, at a rate
per annum of the stated value thereof 1.80% below the Applicable Rate (as
defined in paragraph (2) of this Section (b)) in respect of such Quarterly
Dividend Period. Anything to the contrary herein notwithstanding, the dividend
rate for any Quarterly Dividend Period shall in no event be less than 6.50% or
greater than 12.50% per annum. Such dividends shall be cumulative from December
1, 1995 and shall be payable, when and as declared by the Board, on the last day
of February, May, August and November of each year, commencing the last day of
February, 1996. Each such dividend shall be paid to the holders of record of
shares of this Series 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. 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.
(2) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate or 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 one or more of such
rates cannot be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be the higher of whichever of
such rates can be so determined. In the event that the Corporation determines
in good faith that none of such rates can be determined for any Quarterly
Dividend Period, then the Applicable Rate in effect for the preceding Dividend
Period shall be continued for such Dividend Period.
(3) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly 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 by the Federal Reserve Board during the
B - 2
<PAGE>
Calendar Period immediately prior to the ten calendar days immediately preceding
the last day of February, May, August or November, as the case may be, prior to
the Quarterly Dividend Period for which the dividend rate on this Series 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 noninterest-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
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 U.S. Government securities dealers 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 Quarterly
Dividend Period as provided above in this paragraph, 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 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 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 U.S. Government securities dealers
selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly 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
B - 3
<PAGE>
Period immediately prior to the ten calendar days immediately preceding the last
day of February, May, August or November, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on this Series 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 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 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
Quarterly 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 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 U.S. Government securities dealers
selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly 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 ten calendar days immediately preceding the last day of
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series 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
B - 4
<PAGE>
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 Twenty Year Average Yield shall not be published by any
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
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 Quarterly 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
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 U.S. Government securities dealers 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 dividend rate with respect to each Quarterly 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 each dividend rate to be
published in a newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it applies and will
cause notice of such dividend rate to be enclosed with the dividend payment
checks next mailed to the holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 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
B - 5
<PAGE>
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); and
(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 20 years).
(9) No full dividends shall be declared or paid or set apart for payment
on Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to this 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 this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon shares of this Series
and any other Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares of
this Series shall not be entitled to any dividend, whether payable in cash,
property or stocks, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(10) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (9) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys 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 this
Series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall have been
paid for all past dividend payment periods.
(11) Dividends payable on each share of this Series for each full
Quarterly Dividend
B - 6
<PAGE>
Period shall be computed by dividing the dividend rate for such Quarterly
Dividend Period by four and applying such rate against the stated value per
share of this Series. Dividends payable on this Series for any period less than
a full Quarterly Dividend Period shall be computed on the basis of a 360 day
year consisting of 30 day months.
(c) Redemption.
-----------
(1) The Corporation, at its option, may redeem shares of this Series, as a
whole or in part, at any time or from time to time, at a redemption price of
$100 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 this Series
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board or by any other method as may be determined by
the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
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 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 this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (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 this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board 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 this Series which shall at any time have been redeemed
shall, after such redemption, have 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
B - 7
<PAGE>
by the Board.
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
(d) Conversion or Exchange.
-----------------------
The holders of shares of this Series 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.
(e) Voting.
-------
The shares of this Series shall not have any voting powers either general
or special, except that
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series 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 this Series 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 Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series and all other series of Preferred Stock
ranking on a parity with shares of this Series, either as to dividends or upon
liquidation, 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 this Series and such other series of Preferred Stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating the creation, authorization or issue of any
shares of any class of stock of the Corporation ranking prior to the shares of
this Series as to dividends or upon liquidation, or the reclassification of any
authorized stock of the Corporation into any such prior shares, or
the creation, authorization or issue of any obligation or security convertible
into or evidencing
B - 8
<PAGE>
the right to purchase any such prior shares;
(3) If at any time a default in preference dividends on the Preferred
Stock shall exist, the number of directors constituting the Board of Directors
of the Corporation shall be increased by two, and the holders of the Preferred
Stock of all series shall have the right at an annual or special meeting of
stockholders, voting together as a single class without regard to series, to the
exclusion of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall continue
until there are no dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (herein called a "Preferred
Director") 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 a
default in preference dividends shall cease to exist. Any Preferred Director may
be removed by, and shall not be removed except by, the vote of the holders of
record of the outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at a meeting of the stockholders, or of the
holders of shares of Preferred Stock, called for that purpose. So long as a
default in any preference dividends on the Preferred Stock shall exist, (A) any
vacancy in the office of a Preferred Director may be filled (except as provided
in the following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be reduced by two.
For the purposes hereof, a "default in preference dividends" on the Preferred
Stock shall be deemed to have occurred whenever the amount of accrued dividends
upon any series of the Preferred Stock shall be equivalent to six full quarter-
yearly dividends or more, and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all accrued dividends on all shares
of Preferred Stock of each and every series then outstanding shall have been
paid to the end of the last preceding quarterly dividend period.
(f) Liquidation Rights.
-------------------
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $100 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the
B - 9
<PAGE>
Corporation, nor the merger or consolidation of the Corporation into or with any
other corporation or the merger or consolidation of any other corporation into
or with the Corporation, shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of this Section (f).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (f), the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
(g) For purposes of this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if such stock is the Corporation's
Preferred Stock with Cumulative and Adjustable Dividends, Series B (Without Par
Value), the Corporation's 8.45% Cumulative Preferred Stock, Series E (Stated
Value $625 per share), or the Corporation's 5 3/4% Cumulative Convertible
Preferred Stock, Series B (Stated Value $5,000 per share), or if the holders of
such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in proportion to their respective dividend rates or
B - 10
<PAGE>
liquidation prices, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of this Series; and
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes."
B - 11
<PAGE>
The foregoing Certificate of Voting Powers, Designation, Preferences and
Relative, Participating, Optional and Other Special Rights and the
Qualifications, Limitations or Restrictions relating to this Series shall be
effective at 12:01 a.m. Eastern Standard Time on December 1, 1995 in accordance
with the provisions of Sections 103 and 151(g) of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, First Chicago NBD Corporation has caused this
certificate to be signed by Verne G. Istock, its Chief Executive Officer, and
the same to be attested by Daniel T. Lis, its Assistant Secretary, this 29th day
of November, 1995.
FIRST CHICAGO NBD CORPORATION
By: \s\ Verne G. Istock
-----------------------
Title: Chief Executive Officer
ATTEST:
By: \s\ Daniel T. Lis
---------------------------
Assistant Secretary
B - 12
<PAGE>
Exhibit C
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
RESTATED CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THEREOF, OF THE
8.45% CUMULATIVE PREFERRED STOCK,
SERIES E
(Stated Value $625 per share)
OF
FIRST CHICAGO NBD CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of FIRST CHICAGO NBD CORPORATION, formerly
known as NBD BANCORP, INC., a Delaware corporation (hereinafter called the
"Corporation"), at a meeting duly convened and held on July 11, 1995, at which a
quorum was present and acting throughout:
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of the Corporation, by the Restated Certificate of Incorporation,
as amended (the "Certificate of Incorporation") of the Corporation, the Board
hereby provides for and authorizes the issuance of a series of Preferred Stock
of the Corporation to consist of 160,000 shares, and hereby fixes the voting
powers, designation, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
(a) Designation.
------------
The designation of the series of Preferred Stock created by this resolution
shall be "8.45% Cumulative Preferred Stock, Series E" (hereinafter called this
"Series") and the number of shares constituting this Series is 160,000. Shares
of this Series shall have a stated
C - 1
<PAGE>
value of $625 per share. The number of authorized shares of this Series may be
reduced by further resolution duly adopted by the Board of Directors and by the
filing of a certificate pursuant to the provisions of the General Corporation
Law of the State of Delaware stating that such reduction has been so authorized,
but the number of authorized shares of this Series shall not be increased.
(b) Dividend Rate.
--------------
(1) Shares of this Series shall be entitled to receive dividends at a
fixed annual rate of $52.8125 per share. Such dividends shall be cumulative
from October 1, 1995, and shall be payable, when and as declared by the Board of
Directors, on the first day of January, April, July and October of each year,
commencing the first day of January, 1996. Each such dividend shall be paid to
the holders of record of shares of this Series as they appear on the stock
register of the Corporation on the applicable record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed by the Board of Directors.
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 as may be fixed by the Board of Directors which
shall not exceed 45 days preceding such dividend payment date thereof.
(2) No full dividends shall be declared or paid or set apart for payment
on Preferred Stock of any series ranking, as to dividends, on a parity with this
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 this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon shares of this Series
and any other Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares of
this Series shall not be entitled to any dividend, whether payable in cash,
property or stocks, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (2) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
C - 2
<PAGE>
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys 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 this
Series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall have been
paid for all past dividend payment periods.
(4) Dividends payable on this Series for any period less than a full
quarterly dividend period shall be computed on the basis of a 360 day year
consisting of twelve 30-day months. The amount of dividends payable on shares
of this Series for each full quarterly dividend period shall be computed by
dividing by four the annual rate per share set forth in Section (b)(1).
(c) Redemption.
-----------
(1) The shares of this Series shall not be redeemable prior to November
16, 1997. On and after November 16, 1997, the Corporation, at its option, and
with the prior consent of the Board of Governors of the Federal Reserve System
may redeem shares of this Series, as a whole or in part, at any time or from
time to time, at a redemption price per share of $625, 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 this Series
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 this Series,
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 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 this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (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 this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the
C - 3
<PAGE>
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 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 this Series which shall at any time have been redeemed
shall, after such redemption, have 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.
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
(d) Conversion.
-----------
The holders of shares of this Series 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.
(e) Voting.
-------
The shares of this Series shall not have any voting powers either general
or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66
2/3% of all of the shares of this Series 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 this Series 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 Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then
C - 4
<PAGE>
be required by law, the consent of the holders of at least 66 2/3% of all of the
shares of this Series and all other series of Preferred Stock ranking on a
parity with shares of this Series, either as to dividends or upon liquidation,
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 this
Series and such other series of Preferred Stock shall vote together as a single
class without regard to series, shall be necessary for authorizing, effecting or
validating the creation, authorization or issue of any shares of any class of
stock of the Corporation ranking prior to the shares of this Series as to
dividends or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or evidencing the right to
purchase any such prior shares;
(3) If at any time a default in preference dividends (as defined below) on
the Preferred Stock shall exist, the number of directors constituting the Board
of Directors of the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series shall have the right at an annual or special
meeting of stockholders voting together as a single class without regard to
series, to the exclusion of the holders of Common Stock, to elect two directors
of the Corporation to fill such newly created directorships. Such right shall
continue until there are no dividends in arrears upon the Preferred Stock. Each
director elected by the holders of shares of Preferred Stock (herein called a
"Preferred Director") 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 a default in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except by, the vote of the
holders of record of the outstanding shares of Preferred Stock, voting together
as a single class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for that purpose. So long
as a default in any preference dividends on the Preferred Stock shall exist, (i)
any vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (ii)) by an instrument in writing signed by the
remaining Preferred Director and filed with the Corporation and (ii) in the case
of the removal of any Preferred Director, the vacancy may be filled by the vote
of the holders of the outstanding shares of Preferred Stock, voting together as
a single class without regard to series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed, for all purposes hereof, to be a Preferred
Director. Whenever the term of office of the Preferred Directors shall end and
a default in preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be reduced by two.
For the purposes hereof, a "default in preference dividends" on the Preferred
Stock shall be deemed to have occurred whenever the amount of accrued dividends
upon any series of the Preferred Stock shall be equivalent to six full quarter-
yearly dividends or more, and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all accrued dividends on all shares
of Preferred Stock of each and every
series then outstanding shall have been paid to the end of the last preceding
quarterly dividend period.
C - 5
<PAGE>
(4) A holder of shares of this Series shall be entitled to one vote per
share of the Series held by him when such holder is permitted to vote pursuant
to the foregoing.
(f) Liquidation Rights.
-------------------
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $625 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section (f).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (f), the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
(g) Priority.
---------
For purposes of this resolution, any stock of any class or classes of the
Corporation
C - 6
<PAGE>
shall be deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holder of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if such stock is the Corporation's
Preferred Stock with Cumulative and Adjustable Dividends, Series B (Without Par
Value), Preferred Stock with Cumulative and Adjustable Dividends, Series C
(Without Par Value) or the Corporation's 5 3/4% Cumulative Convertible Preferred
Stock, Series B (Stated Value $5,000 per share), or if the holders of such stock
shall be entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such stock
and the holders of shares of this Series; and
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
(h) Sinking or Retirement Fund.
---------------------------
The shares of this Series shall not be entitled to the benefit of a sinking
or retirement fund to be applied to the purchase or redemption of such stock."
C - 7
<PAGE>
The foregoing Certificate of Voting Powers, Designation, Preferences and
Relative, Participating, Optional and Other Special Rights and the
Qualifications, Limitations or Restrictions relating to this Series shall be
effective at 12:01 a.m. Eastern Standard Time on December 1, 1995 in accordance
with the provisions of Sections 103 and 151(g) of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, First Chicago NBD Corporation has caused this
certificate to be signed by Verne G. Istock, its Chief Executive Officer, and
the same to be attested by Daniel T. Lis, its Assistant Secretary, this 29th day
of November, 1995.
FIRST CHICAGO NBD CORPORATION
By: \s\ Verne G. Istock
-----------------------
Title: Chief Executive Officer
ATTEST:
By: \s\ Daniel T. Lis
---------------------------
Assistant Secretary
C - 8
<PAGE>
Exhibit D
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
RESTATED CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THEREOF, OF THE
5 3/4% CUMULATIVE CONVERTIBLE PREFERRED STOCK,
SERIES B
(Stated Value $5,000 per share)
OF
FIRST CHICAGO NBD CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of FIRST CHICAGO NBD CORPORATION, formerly
known as NBD BANCORP, INC., a Delaware corporation (hereinafter called the
"Corporation"), at a meeting duly convened and held on July 11, 1995, at which a
quorum was present and acting throughout:
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of the Corporation by the Restated Certificate of Incorporation,
as amended (the "Certificate of Incorporation") of the Corporation, the Board
hereby provides for and authorizes the issuance of a series of Preferred Stock
of the Corporation to consist of 40,000 shares, and hereby fixes the voting
powers, designation, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
(a) Designation.
------------
The designation of the series of Preferred Stock created by this resolution
shall be "5 3/4% Cumulative Convertible Preferred Stock, Series B" (hereinafter
called this "Series") and
D - 1
<PAGE>
the number of shares constituting this Series is 40,000. Shares of this Series
shall have a stated value of $5,000 per share. The number of authorized shares
of this Series may be reduced by further resolution duly adopted by the Board of
Directors and by the filing of a certificate pursuant to the provisions of the
General Corporation Law of the State of Delaware stating that such reduction has
been so authorized, but the number of authorized shares of this Series shall not
be increased.
(b) Dividend Rate.
--------------
(1) Shares of this Series shall be entitled to receive dividends at a
fixed annual rate of $287.50 per share. Such dividends shall be cumulative from
October 1, 1995, and shall be payable, when and as declared by the Board of
Directors, on the first day of January, April, July and October of each year,
commencing the first day of January, 1996. Each such dividend shall be paid to
the holders of record of shares of this Series as they appear on the stock
register of the Corporation on the applicable record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed by the Board of Directors.
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 as may be fixed by the Board of Directors which
shall not exceed 45 days prior to such dividend payment date thereof.
(2) No full dividends shall be declared or paid or set apart for payment
on Preferred Stock of any series ranking, as to dividends, on a parity with this
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 this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon shares of this Series
and any other Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares of
this Series shall not be entitled to any dividend, whether payable in cash,
property or stocks, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (2) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to
D - 2
<PAGE>
dividends or upon liquidation, nor shall any Common Stock or any other stock of
the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys 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
this series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this series shall have been
paid for all past dividend payment periods.
(4) Dividends payable on this Series for any period less than a full
quarterly dividend period shall be computed on the basis of a 360 day year
consisting of twelve 30-day months. The amount of dividends payable on shares
of this Series for each full quarterly dividend period shall be computed by
dividing by four the annual rate per share set forth in Section (b)(1).
(c) Redemption.
-----------
(1) The shares of this series shall not be redeemable prior to April 1,
1997. On and after April 1, 1997, the Corporation, at its option, and with the
prior consent of the Board of Governors of the Federal Reserve System may redeem
shares of this Series, as a whole or in part, at any time or from time to time,
at a redemption price as set forth below, plus, in each case, accrued and unpaid
dividends thereon to the date fixed for redemption:
<TABLE>
<CAPTION>
If Redeemed During the
Twelve-Month Period Redemption Price
Beginning on April 1, per share
--------------------- ----------------
<S> <C>
1997 $5,172.50
1998 5,143.75
1999 5,115.00
2000 5,086.25
2001 5,057.50
2002 5,028.75
2003 and thereafter 5,000.00
</TABLE>
(2) In the event that fewer than all the outstanding shares of this series
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 this Series,
notice of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor
D - 3
<PAGE>
more than 60 days prior to the redemption date, to each holder of record of the
shares to be 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 this Series to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (iii) the redemption price; (iv) the then
current Conversion Price (as defined herein), together with a statement that all
conversion rights with respect to the shares of the Series called for redemption
will terminate at the close of business on the fifth Business Day preceding the
redemption date; (v) the place or places where certificates for such shares are
to be surrendered for payment of the redemption price; and (vi) 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 this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice of
the certificates for any shares 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 this Series which shall at any time have been redeemed
shall, after such redemption, have 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.
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; provided, however, that the foregoing shall not prevent the
-------- -------
purchase or acquisition of shares of this Series (i) upon the conversion of
shares of the Series into shares of Common Stock pursuant to Section (d) hereof
or (ii) pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of this Series.
(d) Conversion.
-----------
(1) (A) Subject to the provisions for adjustment hereinafter set forth,
each share of the Series shall be convertible at the option of the holder
thereof, in whole or part, in the manner hereinafter set forth, into fully paid
and nonassessable shares of Common Stock (as hereinafter
D - 4
<PAGE>
defined) at the conversion price, determined as hereinafter provided, in effect
on the date of conversion, each share of the Series being credited at its stated
value; provided that if any shares of the Series are called for redemption, the
conversion rights pertaining thereto will terminate at the close business on the
fifth Business Day preceding the redemption date, unless the Corporation shall
default in providing money for the payment of the redemption price as provided
in Section (c) hereof. The price at which shares of Common Stock shall be
delivered upon conversion of the shares of the Series (hereinafter referred to
as the "Conversion Price") shall be initially $29.6271 per share of Common
Stock. The Conversion Price shall be adjusted in certain instances as provided
in paragraph (2) of this Section (d).
(B) Any holder of shares of the Series desiring to convert such stock into
shares of Common Stock shall surrender the certificate or certificates for the
shares of the Series being converted, duly endorsed or assigned to the
Corporation or in blank, at the principal office of the Corporation for that
purpose, accompanied by a written notice of conversion specifying the number of
shares of the Series to be converted and the name or names in which such holder
wishes the certificate or certificates for shares of Common Stock to be issued;
in case such notice shall specify a name or names other than that of such
holder, such notice shall be accompanied by payment of all transfer taxes
payable upon the issue of shares of Common Stock in such name or names. In case
less than all of the shares of the Series represented by a certificate are to be
converted by a holder, upon such conversion the Corporation shall issue and
deliver or cause to be issued and delivered to such holder a certificate or
certificates for the shares of the Series not so converted. The holders of
shares of the Series at the close of business on a dividend payment record date
shall be entitled to receive the dividend payable on such shares of the Series
(except shares of the Series redeemed on a redemption date between such record
date and the dividend payment date) on the corresponding dividend payment date
notwithstanding the subsequent conversion thereof or the Corporation's default
in payment of the dividend due on such dividend payment date. However, shares
of the Series surrendered for conversion during the period from the close of
business on any dividend payment record date for the Series to the opening of
business on the corresponding dividend payment date (except shares of the Series
called for redemption on a redemption date after the dividend payment record
date and on or before the fifth business day following the dividend payment
date) must be accompanied by payment of an amount equal to the dividend payable
on such shares of the Series on such dividend payment date. A holder of shares
of the Series on a dividend payment record date who (or whose transferee)
converts shares of the Series on a dividend payment date will receive the
dividend payable on such shares of the Series by the Corporation on such date,
and the converting holder need not include payment in the amount of such
dividend upon surrender of shares of the Series for conversion. Except as
provided above, no payment or adjustment will be made on account of accrued or
unpaid dividends upon the conversion of shares of the Series.
(C) As promptly as practicable after the surrender of certificates for
shares of the Series as aforesaid, the Corporation shall issue and shall deliver
at such office to such holder, or on his or her written order, a certificate or
certificates for the number of full shares of Common
D - 5
<PAGE>
Stock issuable upon the conversion of such share in accordance with the
provisions of this Section (d), and any fractional interest in respect of a
share of Common Stock arising upon such conversion shall be promptly settled as
provided in paragraph (11) of this Section (d).
(D) Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for shares
of the Series shall have been surrendered and such notice (and if applicable,
payment of an amount equal to the dividend payable on such shares) received by
the Corporation as aforesaid; the shares of the Series so surrendered for
conversion shall no longer be deemed to be outstanding and all rights with
respect to such shares of the Series shall cease, except the right of the
holders thereof to receive full shares of Common Stock in exchange therefor and
payment for any fractional shares; and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby at such time on such date
and such conversion shall be at the Conversion Price in effect at such time on
such date, unless the stock transfer books of the Corporation shall be closed on
that date, in which event such person or persons shall be deemed to have become
such holder or holders of record at the close of business on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such shares shall have been
surrendered and such notice received by the Corporation. All shares of Common
Stock delivered upon conversion of shares of the Series will upon delivery be
duly and validly issued and fully paid and nonassessable.
(2) The Conversion Price shall be adjusted from time to time as follows:
(A) In case the Corporation shall pay or make a dividend or other
distribution on any class of capital stock of the Corporation in shares of
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 (i) such number
of shares and (ii) the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately after the
opening of business on the date following the date fixed for such determination.
(B) In case the Corporation shall issue rights or warrants to all holders
of its shares of Common Stock entitling them to subscribe for or purchase Common
Stock at a price per share less than the current market price per share
(determined as provided in paragraph (3)) of the Common Stock on the date fixed
for the determination of stockholders entitled to receive such rights or
warrants, the Conversion Price in effect at the opening of business on the date
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 sum of
(i) the number of
D - 6
<PAGE>
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus (ii) the number of shares of Common Stock which the
aggregate 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 sum of (x) the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus (y) 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 date following the date fixed for such
determination.
(C) In case the Corporation shall, by dividend or otherwise, distribute to
all holders of shares of Common Stock evidences of indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2)(B), any dividend or distribution paid in cash out of the surplus
or retained earnings of the Corporation and any dividend or distribution
referred to in paragraph (2)(A)), the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the 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 paragraph (3)) of the Common Stock on the date fixed
for such determination, less the then fair market value (as determined by the
Board of Directors of the Corporation, whose determination shall be conclusive)
of the portion of the assets or evidences of indebtedness so distributed
allocable to one share of Common Stock, and the denominator shall be such
current market price per share of 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. Notwithstanding the foregoing, in the event that the Corporation
shall distribute or shall have distributed any rights or warrants to acquire
capital stock ("Rights") pursuant to this subparagraph (C), the distribution of
separate certificates representing the Rights subsequent to their initial
distribution (whether or not the initial distribution of the Rights shall have
occurred prior to the date of the issuance of the Series) shall be deemed to be
the distribution of the Rights for purposes of this subparagraph (C); provided
that the Corporation may, in lieu of making any adjustment pursuant to this
subparagraph (C) upon a distribution of separate certificates representing the
Rights, make proper provision so that each holder of the Series who converts the
shares of this Series (or any portion hereof) (i) on or before the record date
for such distribution of separate certificates shall be entitled to receive upon
conversion shares of Common Stock issued with Rights and (ii) after such record
date and prior to the expiration, redemption or termination of the Rights shall
be entitled to receive upon conversion, in addition to the shares of Common
Stock issuable upon conversion, the same number of Rights as would a holder of
the number of shares of Common Stock that the shares of such Series so converted
would have entitled the holder thereof to purchase in accordance with the terms
and provisions applicable to the Rights if the shares of such Series were
converted immediately prior to the record date for such distribution. Common
Stock owned by or held for the account of the Corporation or any majority owned
subsidiary shall not be deemed outstanding for the purpose of any adjustment
required under this subparagraph (C).
D - 7
<PAGE>
(D) In case the outstanding shares of Common Stock shall be subdivided
into a greater number of shares, the Conversion Price in effect at the opening
of business on the date following the date upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller number of shares,
the Conversion Price in effect at the opening of business on the date following
the date 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 date upon
which such subdivision or combination becomes effective.
(E) The reclassification of Common Stock into securities other than Common
Stock (other than any reclassification upon a consolidation or merger to which
paragraph (6) applies) shall be deemed to involve (i) 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 paragraph (2)(C)),
and (ii) 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 becomes 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 paragraph
(2)(D) of this Section (d)).
(3) For the purpose of any computation under paragraphs (2)(B) and 2(C),
the current market price per share of Common Stock on any day shall be deemed to
be the average of the daily Closing Prices (as hereinafter defined) per share of
Common Stock for the 30 consecutive Trading Days (as hereinafter defined) ending
on the fifth Trading Day before the day in question.
(4) Notwithstanding the provisions of paragraph (2) above, no adjustment
in the Conversion Price shall be required unless such adjustment (plus any
adjustments not previously made by reason of this paragraph (4)) would require
an increase or decrease of at least 1% in such price; provided, however, that
-------- -------
any adjustments which by reason of this paragraph (4) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. Notwithstanding any other provisions of this Section (d), the
Corporation shall not be required to make any adjustment of the Conversion Price
for the issuance of any shares of Common Stock pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in shares of
Common Stock under such plan. All calculations under this Section (d) shall be
made to the nearest 1/100 of a cent (with $.00005 being rounded upward) or to
the nearest 1/10,000 of a share (with .00005 of a share being rounded upward),
as the case may be.
D - 8
<PAGE>
(5) The Corporation may make such reductions in the Conversion Price, in
addition to those required by this Section (d), as it considers to be advisable
in order to avoid or diminish any income tax to any holder of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Corporation shall have
the power to resolve any ambiguity or correct any error in this Section (d) and
its actions in so doing shall be final and conclusive.
(6) In case the Corporation shall effect any capital reorganization of the
Common Stock (other than a subdivision, combination, capital reorganization or
reclassification provided for in paragraph (2)) or shall consolidate, merge or
engage in a statutory share exchange with or into any other corporation (other
than a consolidation, merger or share exchange in which the Corporation is the
surviving corporation and each share of Common Stock outstanding immediately
prior to such consolidation or merger is to remain outstanding immediately after
such consolidation or merger) or shall sell or transfer all or substantially all
its assets to any other corporation, lawful provision shall be made as a part of
the terms of such transaction whereby the holders of shares of the Series shall
receive upon conversion thereof, in lieu of each share of Common Stock which
would have been issuable upon conversion of such stock if converted immediately
prior to the consummation of such transaction, the same kind and amount of stock
(or other securities, cash or property, if any) as may be issuable or
distributable in connection with such transaction with respect to each share of
Common Stock outstanding at the effective time of such transaction subject to
subsequent adjustments for subsequent stock dividends and distributions,
subdivisions or combinations of shares, capital reorganizations,
reclassification, consolidations, mergers or share exchanges, as nearly
equivalent as possible to the adjustments provided for in this Section (d).
(7) Whenever the Conversion Price is adjusted as herein provided:
(A) the Corporation shall compute the adjusted Conversion Price and shall
cause to be prepared a certificate signed by the chief financial or accounting
officer of the Corporation setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based and
the computation thereof and such certificate shall forthwith be filed with each
transfer agent for the Series; and
(B) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall, as soon as practicable, be
mailed to the holders of record of outstanding shares of the Series.
(8) In case:
(A) the Corporation shall declare a dividend or other distribution on the
Common Stock other than in cash out of its surplus or retained earnings;
D - 9
<PAGE>
(B) the Corporation shall authorize the granting to the holders of the
Common Stock of rights or warrants entitling them to subscribe for or purchase
any shares of capital stock of any class or of any other rights;
(C) of any reclassification of the Common Stock (other than a subdivision
or combination of outstanding shares of Common Stock), or of any consolidation,
merger or share exchange to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required, or of the sale or
transfer of all or substantially all the assets of the Corporation; or
(D) of the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation;
then the Corporation shall cause to be mailed to each transfer agent for the
Series and to the holders of record of the outstanding shares of the Series, at
least 20 days (or 10 days in any case specified in paragraph (A) or (B) above)
prior to the applicable record or effective date hereinafter specified, a notice
stating (i) the date as of which the holders of record of shares of Common Stock
to be entitled to such dividend, distribution, rights or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, liquidation, dissolution or winding up
is expected to become effective and the date as of which it is expected that
holders of record of Common Stock shall be entitled to exchange their shares for
securities or other property, if any, deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, liquidation, dissolution
or winding up. Such notice shall also state whether such transaction will
result in any adjustment in the Conversion Price applicable to the Series and,
if so, shall state what the adjusted Conversion Price will be and when it will
become effective. Neither the failure to give the notice required by this
paragraph (8), nor any defect therein, to any particular holder shall affect the
sufficiency of the notice or the legality or validity of the proceedings
described in paragraphs (8)(A) through (8)(D).
(9) Any shares of this Series which shall at any time have been converted
shall, after such conversion, have the status as 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. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock for the purpose of issuance upon conversion
of shares of the Series, the full number of shares of Common Stock then issuable
upon the conversion of all shares of the Series then outstanding and shall take
all action necessary so that shares of Common Stock so issued will be validly
issued, fully paid and nonassessable; provided, however, that nothing contained
herein shall preclude the Corporation from satisfying its obligations in respect
of the conversion of the shares by delivery of purchased shares of Common Stock
which are held in the treasury of the Corporation.
D - 10
<PAGE>
(10) The Corporation will pay any and all stamp or similar taxes that may
be payable in respect of the issuance or delivery of shares of Common Stock on
conversion of shares of the Series. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of shares of Common Stock in a name other than that
in which the shares of the Series so converted were registered, and no such
issuance or delivery shall be made unless and until the person requesting such
issuance has paid to the Corporation the amount of any such tax or has
established to the satisfaction of the Corporation that such tax has been paid.
(11) No fractional shares or scrip representing fractional shares of
Common Stock shall be issued upon the conversion of shares of the Series. If
any such conversion would otherwise require the issuance of such a fractional
share (determined to the extent of four decimal places after taking into account
all shares of the Series being converted into Common Stock by the holder), an
amount equal to such fraction multiplied by the Closing Price per share of
Common Stock for the day of conversion shall be paid to the holder in cash by
the Corporation. Any share of the Series may be converted, at the request of
its holder, in part into Common Stock. If a part of a share of the Series is
converted, then the Corporation will convert such shares into the requested
shares of Common Stock (subject to this paragraph (11)) and issue a fractional
share of the Series evidencing the remaining interest of such holder.
(12) Notwithstanding anything elsewhere contained herein, any funds which
at any time shall have been deposited by the Corporation or on its behalf with
any paying agent for the purpose of paying dividends on, or the redemption price
of, any shares of the Series and which shall not be required for such purposes
because of the conversion of such shares shall after such conversion be repaid
to the Corporation by the paying agent.
(13) In any case in which paragraph (2) of this Section (d) provides that
an adjustment shall become effective on the day next following a record date for
an event, the Corporation may defer until the occurrence of such event (a)
issuance to the holder of any share of this Series converted after such record
date and before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (B) paying to such holder any amount in
cash in lieu of any fraction pursuant to paragraph (11) of this Section (d).
(14) If any action or transaction would require adjustment of the
Conversion Price pursuant to more than one paragraph of this Section (d), only
one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value.
(15) If the Corporation shall take any action affecting the Common Stock,
other than action described in this Section (d), that in the opinion of the
Board of Directors would
D - 11
<PAGE>
materially adversely affect the conversion rights of the holders of the shares
of the Series, the Conversion Price for the Series may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the Board
of Directors may determine to be equitable in the circumstances.
(16) The certificate of any independent firm of public accountants of
recognized standing selected by the Board shall be presumptive evidence of the
correctness of any computation made under this Section (d).
(17) For purposes of this resolution, the following terms shall have the
following meanings:
(i) "Closing Price" shall mean the last sale price as shown on the New
York Stock Exchange Composite Transactions Tape, or in case no such sale takes
place on such day, the average of the closing bid and asked prices on the New
York Stock Exchange, or, if the Common Stock is not 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 it is 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 as furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors for such purposes
(other than the Corporation or a subsidiary thereof).
(ii) "Common Stock" shall mean the Corporation's Common Stock, $1.00 par
value per share, as the same exists at the date of filing of the Certificate of
Designation relating to this Series or any other class of stock resulting from
successive changes or reclassification of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par value to
par value.
(iii) "Trading Day" shall mean a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a day which is a
Business Day.
(iv) "Business Day" shall mean a day which is not a Saturday, Sunday or
other day on which commercial banking institutions in the City of Chicago,
Illinois or The City of New York, New York are authorized or obligated by law or
executive order to close.
(e) Voting.
-------
D - 12
<PAGE>
The shares of this Series shall not have any voting powers either general
or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66
2/3% of all of the shares of this Series 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 this Series 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 Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66
2/3% of all of the shares of this Series and all other series of Preferred Stock
ranking on a parity with shares of this Series, either as to dividends or upon
liquidation, 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 this Series and such other series of Preferred Stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating the creation, authorization or issue of any
shares of any class of stock of the Corporation ranking prior to the shares of
this Series as to dividends or upon liquidation, or the reclassification of any
authorized stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares;
(3) If at any time a default in preference dividends (as defined below) on
the Preferred Stock shall exist, the number of directors constituting the Board
of Directors of the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series shall have the right at an annual or special
meeting of stockholders, voting together as a single class without regard to
series, to the exclusion of the holders of Common Stock, to elect two directors
of the Corporation to fill such newly created directorships. Such right shall
continue until there are no dividends in arrears upon the Preferred Stock. Each
director elected by the holders of shares of Preferred Stock (herein called a
"Preferred Director") 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 a default in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except by, the vote of the
holders of record of the outstanding shares of Preferred Stock, voting together
as a single class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for that purpose. So long as
a default in any preference dividends on the Preferred Stock shall exist, (i)
any vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (ii)) by an instrument in writing signed by the
D - 13
<PAGE>
Preferred Director and filed with the Corporation and (ii) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be reduced by two.
For the purposes hereof, a "default in preference dividends" on the Preferred
Stock shall be deemed to have occurred whenever the amount of accrued dividends
upon any series of the Preferred stock shall be equivalent to six full quarter-
yearly dividends or more, and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all accrued dividends on all shares
of Preferred Stock of each and every series then outstanding shall have been
paid to the end of the last preceding quarterly dividend period.
(4) A holder of shares of this Series shall be entitled to one vote per
share of the Series held by him when such holder is permitted to vote pursuant
to the foregoing.
(f) Liquidation Rights.
-------------------
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $5,000 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section (f).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (f), the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless
D - 14
<PAGE>
proportionate distributive amounts shall be paid on account of the shares of
this Series, ratably, in proportion to the full distributable amounts for which
holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
(g) Priority. For purposes of this resolution, any stock of any class or
--------
classes of the Corporation shall be deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holder of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if such stock is the Corporation's
Preferred Stock with Cumulative and Adjustable Dividends, Series B (Without Par
Value), Preferred Stock with Cumulative and Adjustable Dividends, Series C
(Without Par Value), or the Corporation's 8.45% Cumulative Preferred Stock,
Series E (Stated Value $625 per share), or if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such stock
and the holders of shares of this Series; and
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
(h) Sinking or Retirement Fund.
---------------------------
The shares of this Series shall not be entitled to the benefit of a sinking
or retirement fund to be applied to the purchase or redemption of such stock."
D - 15
<PAGE>
The foregoing Certificate of Voting Powers, Designation, Preferences and
Relative, Participating, Optional and Other Special Rights and the
Qualifications, Limitations or Restrictions relating to this Series shall be
effective at 12:01 a.m. Eastern Standard Time on December 1, 1995 in accordance
with the provisions of Sections 103 and 151(g) of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, First Chicago NBD Corporation has caused this
certificate to be signed by Verne G. Istock, its Chief Executive Officer, and
the same to be attested by Daniel T. Lis, its Assistant Secretary, this 29th day
of November, 1995.
FIRST CHICAGO NBD CORPORATION
By: \s\ Verne G. Istock
-----------------------
Title: Chief Executive Officer
ATTEST:
By: \s\ Daniel T. Lis
---------------------------
Assistant Secretary
D - 16
<PAGE>
[First Chicago NBD Letterhead]
Exhibit 5(a) and 23(a)
JANUARY 31, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: First Chicago NBD Corporation
Form S-3 Registration Statement (No. 33-65431)
----------------------------------------------
Ladies and Gentlemen:
I am Executive Vice President, General Counsel and Secretary of First
Chicago NBD Corporation, a Delaware corporation (the "Company"), and in such
capacity, I, or members of my staff subject to my supervision, have represented
the Company in connection with the Company's Registration Statement on Form S-3
concurrently being filed with the Securities and Exchange Commission (the
"Registration Statement") relating to (i) debt securities which may be either
senior (the "Senior Securities") or subordinated (the "Subordinated Securities")
(collectively, the "Debt Securities"), either of which may be convertible or
exchangeable into the Company's common stock, $1 par value per share (the
"Common Stock"), the Company's preferred stock (the "Preferred Stock"), other
Debt Securities, Debt Warrants (as defined herein), Preferred Stock Warrants (as
defined herein) or Common Stock Warrants (as defined herein), (ii) warrants to
purchase Debt Securities (the "Debt Warrants"), (iii) currency warrants (the
"Currency Warrants"), (iv) stock-index warrants (the "Stock-Index Warrants"),
(v) warrants relating to other indices (the "Other Warrants"), (vi) shares of
Preferred Stock which may be convertible into shares of Common Stock or
exchangeable for Debt Securities, (vii) shares of Preferred Stock represented by
depositary shares (the "Depositary Shares"), (viii) warrants to purchase shares
of Preferred Stock (the "Preferred Stock Warrants"), and (ix) warrants to
purchase shares of Common Stock (the "Common Stock Warrants"). The Debt
Warrants, Currency Warrants, Stock-Index Warrants, Other Warrants, Preferred
Stock Warrants and Common Stock Warrants are referred to herein collectively as
the "Warrants"; the Debt Securities, Warrants, shares of Preferred Stock,
Depositary Shares and shares of Common Stock are referred to herein collectively
as the "Offered Securities".
The Offered Securities will be sold or delivered from time to time as set
forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the Prospectus (the
"Prospectus Supplement"). The Senior
<PAGE>
CONTINUING OUR LETTER OF JANUARY 31, 1996
SHEET NO. 2
Securities will be issued under an Indenture dated as of December 1, 1995,
between the Company and Marine Midland Bank, as trustee, (the "Senior
Indenture"). The Subordinated Securities will be issued under an Indenture
dated as of December 1, 1995, between the Company and The Chase Manhattan Bank
(National Association) (the "Subordinated Indenture"). The Senior Indenture and
Subordinated Indenture are exhibits to the Registration Statement.
I have reviewed such corporate records and other documents and have made
such further examinations and inquiries as I have deemed necessary to enable me
to express the opinions set forth herein.
Based on the foregoing, and subject to the qualifications and limitations
stated herein, it is my opinion that:
(i) upon the issuance, authentication and delivery of the Debt Securities
in accordance with the provisions of the applicable Senior Indenture or
Subordinated Indenture, as the case may be, against payment therefor, the Debt
Securities will constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect and
to general principles of equity;
(ii) upon the due execution of the debt warrant agreement and the issuance,
authentication and delivery of the Debt Warrants in accordance with the
provisions of such debt warrant agreement against payment therefor, the Debt
Warrants will constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect and
to general principles of equity;
(iii) upon the due execution of the currency warrant agreement and the
issuance, authentication and delivery of the Currency Warrants in accordance
with the provisions of such currency warrant agreement against payment therefor,
the Currency Warrants will constitute legal, valid and binding obligations of
the Company enforceable in accordance with their terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity;
(iv) upon the due execution of the stock-index warrant agreement and the
issuance, authentication and delivery of the Stock-Index Warrants in
<PAGE>
CONTINUING OUR LETTER OF JANUARY 31, 1996
SHEET NO. 3
accordance with the provisions of such stock-index warrant agreement against
payment therefor, the Stock-Index Warrants will constitute legal, valid and
binding obligations of the Company enforceable in accordance with their terms
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of equity;
(v) opon the due execution of the warrant agreement and the issuance,
authentication and delivery of the Other Warrants in accordance with the
provisions of such warrant agreement against payment therefor, the Other
Warrants will constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect and
to general principles of equity;
(vi) upon the due execution of the preferred stock warrant agreement and
the issuance, authentication and delivery of the Preferred Stock Warrants in
accordance with the provisions of such preferred stock warrant agreement against
payment therefor, the Preferred Stock Warrants will constitute legal, valid and
binding obligations of the Company enforceable in accordance with their terms
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of equity;
(vii) upon the due execution of the common stock warrant agreement and the
issuance, authentication and delivery of the Common Stock Warrants in accordance
with the provisions of such common stock warrant agreement against payment
therefor, the Common Stock Warrants will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their terms subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity;
(viii) upon designation of the preferences and relative, participating,
optional and other special rights, and qualifications, limitations or
restrictions of the Preferred Stock by the Company's Board of Directors or by a
duly authorized committee thereof, and thereafter upon proper filing with the
Secretary of State of the State of Delaware of a Certificate of Designations
relating to the Preferred Stock and when such shares of Preferred Stock are
issued and sold as contemplated in the Registration Statement and in accordance
with their respective terms, such shares of Preferred Stock will be legally
issued, fully paid and
<PAGE>
CONTINUING OUR LETTER OF JANUARY 31, 1996
SHEET NO. 4
nonassessable;
(ix) when the deposit agreement relating to the issuance of the Depositary
Shares has been duly authorized, executed and delivered by the Company and the
applicable depositary, the depositary receipts evidencing the Depositary Shares
have been duly executed and delivered by the applicable depositary and duly
countersigned by a registrar and the depositary pursuant to the terms of the
Deposit Agreement as contemplated in the Registration Statement, the Depositary
Shares will be legally issued, valid and binding obligations of the Company
entitled to the benefits of the deposit agreement; and
(x) when issued in accordance with their respective terms and the terms of
the Debt Securities, Preferred Stock or Common Stock Warrants which are
convertible, exchangeable or exercisable, as the case may be, into such shares
of Common Stock, the shares of the Common Stock will be legally issued, fully
paid and nonassessable.
I am a member of the Bar of the State of Illinois, and I do not express any
opinion herein concerning any law other than the law of the State of Illinois,
the federal law of the United States and the Delaware General Corporation Law.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name whenever it appears in such
Registration Statement, including the Prospectus and any Prospectus Supplement
constituting a part hereof, as originally filed or as subsequently amended.
Very truly yours,
Sherman I. Goldberg
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To First Chicago NBD Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 17, 1995,
on the consolidated financial statements of First Chicago Corporation,
incorporated by reference in the Annual Report on Form 10-K of First Chicago
Corporation for the year ended December 31, 1994, and to the reference to our
Firm under the caption "Experts" included in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
January 29, 1996
<PAGE>
EXHIBIT 23(C)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To First Chicago NBD Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated December 1, 1995,
on the supplemental consolidated financial statements of First Chicago NBD
Corporation, included in the Current Report on Form 8-K of First Chicago NBD
Corporation dated December 4, 1995, and to the reference to our Firm under the
caption "Experts" included in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
January 29, 1996
<PAGE>
EXHIBIT 23(D)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 33-65431 of First Chicago NBD Corporation on Form
S-3 of our report dated January 17, 1995, appearing in the Annual Report on
Form 10-K of NBD Bancorp, Inc. for the year ended December 31, 1994, and
appearing in the Current Report on Form 8-K of First Chicago Corporation dated
July 21, 1995. We also consent to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Detroit, Michigan
January 30, 1996
