EXHIBIT 4.32
==========================================
FIFTH SUPPLEMENTAL INDENTURE
between
BANK ONE CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of August 30, 2000
==========================================
TABLE OF CONTENTS
-----------------
Page
-----
ARTICLE I DEFINITIONS
SECTION 1.1. Definition of Terms............................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.................................. 3
SECTION 2.2. Maturity.......................................................... 4
SECTION 2.3 Form and Payment.................................................. 4
SECTION 2.4. Global Debenture.................................................. 4
SECTION 2.5. Interest.......................................................... 5
ARTICLE III REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event, Investment Company Event or Capital Treatment.......... 6
SECTION 3.2. Optional Redemption by Company.................................... 6
SECTION 3.3. Notice............................................................ 7
SECTION 3.4. No Sinking Fund................................................... 7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.............................. 7
SECTION 4.2. Notice of Extension............................................... 8
ARTICLE V EXPENSES
SECTION 5.1. Payment of Expenses............................................... 8
SECTION 5.2. Payment Upon Resignation or Removal............................... 9
ARTICLE VI FORM OF DEBENTURE
SECTION 6.1. Form of Debenture................................................. 9
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures...................................... 18
ARTICLE VIII MISCELLANEOUS
SECTION 8.1. Ratification of Indenture......................................... 18
SECTION 8.2. Trustee Not Responsible for Recitals.............................. 18
SECTION 8.3. Governing Law..................................................... 18
SECTION 8.4. Separability...................................................... 18
SECTION 8.5. Counterparts...................................................... 19
FIFTH SUPPLEMENTAL INDENTURE, dated as of August 30, 2000 (the "Fifth
-----
Supplemental Indenture"), between BANK ONE CORPORATION, a Delaware corporation
----------------------
(the "Company"), and The Chase Manhattan Bank, as trustee (the "Trustee"), under
------- -------
the Indenture dated as of January 1, 1997 between the Company and the Trustee
(the "Indenture").
---------
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Junior Subordinated Deferrable Interest Debentures due September 1, 2030
(the "Debentures"), the form and substance of such Debentures and the terms,
----------
provisions and conditions thereof to be set forth as provided in the Indenture
and this Fifth Supplemental Indenture;
WHEREAS, BANK ONE Capital III, a Delaware statutory business trust
(the "Trust"), has offered to the public $475,000,000 aggregate liquidation
-----
amount of its 8.750% Preferred Securities (the "Preferred Securities")
--------------------
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $14,691,000 aggregate
liquidation amount of its 8.750% Common Securities, in $489,691,000 aggregate
principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Fifth Supplemental Indenture pursuant to Sections 3.01 and 9.01 of
the Indenture and all requirements necessary to make this Fifth Supplemental
Indenture a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Fifth Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this Fifth Supplemental Indenture;
(b) a term defined anywhere in this Fifth Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this Fifth Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Treatment Event; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Institutional Trustee; (vi) Institutional
Trustee Account; (vii) Investment Company Event; (viii) Preferred Security
Certificate; (ix) Regular Trustees; (x) Special Event; (xi) Tax Event; (xii) the
Trustee and, (xiii) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
---------------
"Bank One Capital Trust" means each of (i) any FCN Capital Trust and
----------------------
(ii) BANK ONE Capital I, BANK ONE Capital II, BANK ONE Capital III, BANK ONE
Capital IV and BANK ONE Capital V, each a Delaware business trust, or any
similar trust created for the purpose of issuing preferred securities in
connection with the issuance of Securities under the Indenture.
"Bank One Guarantee" means any Common Securities Guarantee or
------------------
Preferred Securities Guarantee.
"Comparable Treasury Issue" means with respect to any Redemption Date,
-------------------------
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in
2
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life. If no United
States Treasury security has a maturity which is within a period from three
months before or three months after September 1, 2030, the two most closely
corresponding United States Treasury securities will be used as the Comparable
Treasury Issue, and the Treasury Rate will be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means (a) the average of five Reference
-------------------------
Treasury Dealer Quotations for the Redemption Date, after excluding the highest
and the lowest Reference Treasury Dealer Quotations, or (b) if the Trustee
obtains fewer than five Reference Treasury Dealer Quotations, the average of all
such quotations.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
-------------------
"Declaration" means the Amended and Restated Declaration of Trust of
-----------
BANK ONE Capital III, a Delaware statutory business trust, dated as of August
30, 2000.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
-----------------
"Depositary", with respect to the Debentures, means The Depository
----------
Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
-----------------
Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional Trustee to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Global Debenture" shall have the meaning set forth in Section 2.4.
----------------
"Maturity Date" shall mean September 1, 2030.
-------------
"Non Book-Entry Preferred Securities" shall have the meaning set forth
-----------------------------------
in Section 2.4.
"Optional Redemption Price" shall mean, with respect to any redemption
-------------------------
of the Debentures pursuant to Section 3.2 hereof, an amount in cash equal to the
greater of (1) 100% of the principal amount of the Debentures to be redeemed or
(2) as determined by the Quotation Agent, the sum of the present values of
scheduled payments of principal and interest for the Remaining Life, discounted
to the Redemption Date on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate plus .500%, in each case, plus
accrued and unpaid interest thereon including Compounded Interest and Additional
Sums, if any, to the date of redemption.
"Quotation Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and its successors;
---------------
provided, however, that if the foregoing is no longer a primary United States
Government
3
securities dealer in New York City (a "Primary Treasurer Dealer"), the Company
will substitute another Primary Treasury Dealer in its place.
"Redemption Date" means the date fixed for redemption of the
---------------
Debentures pursuant to Article III hereof.
"Reference Treasury Dealer" means the Quotation Agent and any other
-------------------------
Primary Treasury Dealer selected by the Trustee after consultation with the
Company.
"Reference Treasury Dealer Quotation" means, with respect to each
-----------------------------------
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by a Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding the Redemption Date.
"Remaining Life" means the period of time from the Redemption Date to
--------------
September 1, 2030.
"Special Event Redemption Price" shall mean, with respect to any
------------------------------
redemption of the Debentures pursuant to Section 3.1 hereof, an amount in cash
equal to the greater of (1) 100% of the principal amount of the Debentures to be
redeemed or (2) as determined by the Quotation Agent, the sum of the present
values of scheduled payments of principal and interest for the Remaining Life,
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus .750%, in each
case, plus accrued and unpaid interest thereon, including Compounded Interest
and Additional Sums, if any, to the date of redemption.
"Treasury Rate" means (1) the yield, under the heading which
-------------
represents the average for the week immediately prior to the date of
calculation, appearing in the most recently published statistical release
designated H.15(519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities", for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life will be determined and the Treasury Rate will be interpolated or
extrapolated from these yields on a straight-line basis, rounding to the nearest
month) or (2) if such release (or any successor release) is not published during
the week preceding the calculation date or does not contain such yields, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the Redemption Date.
"Trust Securities" shall mean the Preferred Securities and the Common
----------------
Securities, collectively.
4
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the
"Junior Subordinated Deferrable Interest Debentures due September 1, 2030",
limited in aggregate principal amount to $489,691,000, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 3.03 of the Indenture.
SECTION 2.2. Maturity.
--------
The Maturity Date (which shall constitute the Stated Maturity of
the Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
----------------
Except as provided in Section 2.4, the Debentures shall be issued
in fully registered certificated form without interest coupons in minimum
denominations of $1,000 and in integral multiples thereof. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Company as set forth in the last sentence of Section 5.02 of
the Indenture; provided, however, that payment of interest may be made, at the
-------- -------
option of the Company, by check mailed to the Holder at such address as shall
appear in the Security Register or by wire transfer to an account designated by
a Holder in writing not less than ten days prior to the date of payment. The
Company selects each of the City of New York, New York and the City of Chicago,
Illinois as a Place of Payment for the Debentures and hereby appoints Bank One
Trust Company, N.A. as Securities Registrar for the Debentures. Notwithstanding
the foregoing, so long as the Holder of any Debentures is the Institutional
Trustee, the payment of the principal of and interest (including Compounded
Interest and Additional Sums, if any) on such Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
5
SECTION 2.4. Global Debenture.
----------------
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee in exchange for
a global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
------
Debenture"), to be registered in the name of the Depositary, or its
---------
nominee, and delivered by the Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
Fifth Supplemental Indenture. Payments on the Debentures issued as a
Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-
entry certificated form, the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
-----------------------------------
represent beneficial interests in Debentures presented to the Trustee
by the Institutional Trustee having an aggregate principal amount
equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at
which time such Preferred Security Certificates will be cancelled and
a Debenture, registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture and this Fifth Supplemental Indenture. Upon the
issuance of such Debentures, Debentures with an equivalent aggregate
principal amount that were presented by the Institutional Trustee to
the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
SECTION 2.5. Interest.
--------
6
(a) Each Debenture will bear interest at a rate per annum equal to
8.750% (the "Interest Rate") from August 30, 2000 until the principal thereof
-------------
becomes due and payable, and on any overdue principal at the Interest Rate and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Interest Rate, compounded
semiannually, payable (subject to the provisions of Article Four) semiannually
in arrears on March 1 and September 1 of each year commencing on March 1, 2001
(each such day, an "Interest Payment Date"), to the Person in whose name such
---------------------
Debenture or any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which, in respect of
any Debentures of which the Institutional Trustee is the Holder or in the case
of a Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date (as defined below). Notwithstanding the
foregoing sentence, if the Debentures are no longer in book-entry only form,
except if the Debentures are held by the Institutional Trustee, the regular
record dates shall be the February 15 and August 15 prior to the applicable
Interest Payment Date.
The term "Interest Period" means each period beginning on, and
---------------
including, August 30, 2000, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding Interest
Payment Date. The amount of interest payable for any Interest Period will be
computed for any full semiannual Interest Period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full semiannual
Interest Period for which interest is computed, interest will be computed on the
basis of the actual number of days elapsed in a partial month in such period.
(b) In the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day, in each case with the same force and
effect as if made on such date.
(c) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
---------------
by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will not be less
than the amounts the Trust and the Institutional Trustee would have received had
the Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other governmental charges as a result of such Tax Event. The
payment of such Additional Sums will be subject to the provisions of Section
5.04 of the Indenture.
7
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event, Investment Company Event or Capital Treatment Event
--------------------------------------------------------------
Redemption.
----------
If a Tax Event, an Investment Company Event or a Capital Treatment
Event has occurred and is continuing then, notwithstanding Section 3.2(a) but
subject to Section 3.2(c), the Company shall have the right upon not less than
30 days nor more than 60 days notice to the Holders of the Debentures to redeem
the Debentures, in whole, but not in part, for cash within 90 days following the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event (or, if the approval of the Federal Reserve is then required for such
redemption, on such later date as promptly practicable after such approval is
obtained), (the "90 Day Period") at the Special Event Redemption Price.
SECTION 3.2. Optional Redemption by Company.
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Four of the Indenture, except as otherwise may be
specified in this Fifth Supplemental Indenture, the Company shall have the right
to redeem the Debentures, in whole or in part, at any time, at the Optional
Redemption Price. Any redemption pursuant to this paragraph will be made upon
not less than 30 days nor more than 60 days notice to the Holders of the
Debentures. If the Debentures are only partially redeemed pursuant to this
Section 3.2, the Debentures will be redeemed pro rata or by lot or by any other
--- ----
method utilized by the Securities Registrar; provided, that if at the time of
--------
redemption the Debentures are registered as a Global Debenture, the Depositary
shall determine, in accordance with its procedures, the principal amount of such
Debentures beneficially held by each Holder of Debentures to be redeemed.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or
Section 3.2 shall be subject to the Company obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3.3. Notice.
-------
The Company shall notify the Trustee of the Special Event
Redemption Price or the Optional Redemption Price, as the case may be, with
respect to any foregoing redemption promptly after the calculation thereof.
Except to the extent otherwise expressly specified herein, the Trustee shall not
be responsible for calculating said Special Event Redemption Price or Optional
Redemption Price.
8
SECTION 3.4. No Sinking Fund.
---------------
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
------------------------------------
Subject to Section 3.13 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest by extending the interest payment period of such
Debentures for a period not exceeding 10 consecutive semiannual periods (an
"Extension Period"), during which Extension Period no interest shall be due and
payable; provided that no Extension Period may end on a date other than an
--------
Interest Payment Date or extend beyond the Maturity Date. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to this Section
4.1, will bear interest thereon at the Interest Rate compounded semiannually for
each semiannual period of the Extension Period ("Compounded Interest"). At the
-------------------
end of the Extension Period, the Company shall pay all interest accrued and
unpaid on the Debentures, including any Additional Sums and Compounded Interest
(together, "Deferred Interest") that shall be payable to the Holders of the
-----------------
Debentures in whose names the Debentures are registered in the Security Register
on the record date relating to the Interest Payment Date on which the Extension
Period ends. Before the termination of any Extension Period, the Company may
further defer payments of interest by further extending such period, provided
--------
that such period, together with all such further extensions thereof, shall not
exceed 10 consecutive semiannual periods, or extend beyond the Maturity Date of
the Debentures. Upon the termination of any Extension Period and the payment of
all Deferred Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof.
SECTION 4.2. Notice of Extension.
-------------------
(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the earlier of (i) the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust, but
in any event at least one Business Day before such record date.
9
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to Holders of the
Debentures.
(c) The semiannual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
semiannual periods permitted in the maximum Extension Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Debentures
to the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 8.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
10
SECTION 5.2. Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this Fifth Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee, unless otherwise stated, the
Company shall pay to the Trustee all amounts accrued under Section 8.07 of the
Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts accrued under said
Sections to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
11
No. CUSIP No.
BANK ONE CORPORATION
JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE September 1, 2030
BANK ONE CORPORATION, a Delaware corporation (the "Company", which
-------
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ______________ or registered
assigns, the principal sum of ______________________________ Dollars ($________)
on September 1, 2030 and to pay interest on said principal sum from August 30,
2000, or from the most recent interest payment date to which interest has been
paid or duly provided for, semiannually (subject to deferral as set forth
herein) in arrears on March 1 and September 1 of each year commencing March 1,
2001 (each such date, an "Interest Payment Date") at the rate of 8.750% per
---------------------
annum (the "Interest Rate") until the principal hereof shall have become due and
-------------
payable, and on any overdue principal and premium, if any, at the Interest Rate
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Interest Rate compounded semiannually. The amount of interest payable on any
Interest Payment Date (as defined below) shall be calculated as provided in the
Indenture. In the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the first business day next
preceding such Interest Payment Date. If pursuant to the provisions of the
Indenture the Debentures are no longer represented by a Global Debenture, except
if the Debentures are held by the Institutional Trustee, the regular record date
shall be the close of business on the February 15 and August 15 next preceding
such Interest Payment Date, as applicable. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Securities) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public
12
and private debts; provided, however, that payment of interest may be made, at
-------- -------
the option of the Company, by check mailed to the registered Holder at such
address as shall appear in the Security Register or by wire transfer to an
account designated by a Holder in writing not less than ten days prior to the
date of payment. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Institutional Trustee, the payment of the principal of (and
premium, if any) and interest on this Debenture will be made at such place and
to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed this ___day of _____.
BANK ONE CORPORATION
By:____________________________
Name:
Title: Chairman of the Board
13
Attest:
By:____________________
Name:
Title: Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By__________________________
Authorized Officer
Dated_______________________
14
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), all issued or to be
----------
issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as heretofore supplemented and as
-------
supplemented by the Fifth Supplemental Indenture dated as of August 30, 2000,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
----------
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities. By the terms of the Indenture, the Securities
are issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This Security is
one of the series designated on the face hereof (the "Debentures") and is
----------
limited in aggregate principal amount as specified in said Fifth Supplemental
Indenture.
Upon the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Treatment Event, the Company shall have the right,
subject to certain conditions set forth in the Indenture, to redeem this
Debenture in whole, but not in part, at the Special Event Redemption Price
within 90 days following the occurrence of such Tax Event, Investment Company
Event or Capital Treatment Event (or, if the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") is then
---------------
required, on such later date as promptly as practicable after such approval is
obtained). In addition, the Company shall have the right to redeem this
Debenture, in whole or in part, at any time, at the Optional Redemption Price
(any of the foregoing redemptions an "Optional Redemption"). The "Special Event
------------------- -------------
Redemption Price" means, an amount in cash equal to the greater of (1) 100% of
----------------
the principal amount of the Debentures to be redeemed or (2) as determined by
the Quotation Agent, the sum of the present values of scheduled payments of
principal and interest for the Remaining Life, discounted to the Redemption Date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus .750%, in each case plus accrued and unpaid
interest thereon, including Compounded Interest and Additional Sums, if any, to
the date of redemption. The "Optional Redemption Price" means an amount in cash
-------------------------
equal to the greater of (1) 100% of the principal amount of the Debentures to be
redeemed or (2) as determined by the Quotation Agent, the sum of the present
values of scheduled payments of principal and interest for the Remaining Life,
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus .500%, in each
case plus accrued and unpaid interest thereon, including Compounded Interest and
Additional Sums, if any, to the date of redemption. Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice. If the Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Debentures will be redeemed pro rata or by lot or
--- ----
by any other method utilized by the Securities Registrar; provided that if, at
the time of redemption, the Debentures are registered as a Global Debenture, the
Depositary shall determine the principal amount of such Debentures beneficially
held by each Debentureholder to be redeemed in accordance with its procedures.
15
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by the
Company shall be subject to the prior approval of the Federal Reserve, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
(acting as one class), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities; provided, however, that
no such supplemental indenture shall (i) change the Maturity of the principal
of, or the Stated Maturity of any installment of interest (or premium, if any)
on, any Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligations of the Company to pay
additional amounts pursuant to Section 5.04 of the Indenture, or to reduce the
amount of principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof, or change
the method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date); or (ii) reduce the percentage in principal amount of
the Outstanding Securities of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Indenture or to reduce the
requirements of the Indenture for a quorum at meetings of Holders of Securities;
or (iii) change the obligations of the Company to maintain certain offices or
agencies as required by the Indenture; or (iv) modify any of the provisions of
the Indenture relating to supplemental indentures or the waiver of defaults,
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived, without the consent of
the Holders of each Security then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series affected
thereby, on behalf of all of the Holders of the Securities of such series, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on
16
any of the Securities of such series. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and of any Debenture issued in exchange
therefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 10 consecutive semiannual periods
(an "Extension Period"), at the end of which period the Company shall pay all
----------------
interest then accrued and unpaid (together with interest thereon at the Interest
Rate to the extent that payment of such interest is enforceable under applicable
law); provided that no Extension Period may end on a day other than an Interest
-------- ----
Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period together with all such
further extensions thereof shall not exceed 10 consecutive semiannual periods or
extend beyond the Maturity Date of the Debentures. Upon the termination of any
such Extension Period and the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that by
their terms rank pari passu in all respects with or junior in interest to the
Debentures (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any Bank One Guarantee which is
for the benefit of the holders of Preferred Securities or Common Securities
issued by the Trust, (d) purchases of Common Stock related to the issuance of
Common Stock under any of the Company's benefit plans for its directors,
officers or employees and (e) obligations under any dividend reinvestment and
stock purchase plan).
17
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Company will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York or the City of Chicago, Illinois accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Securities Registrar duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 3.07 of the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures so issued are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.] As provided in the Indenture and subject to
certain limitations herein and therein set forth, Debentures of this series [so
issued] are exchangeable for a like aggregate principal amount of Debentures of
a different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
18
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $489,691,000 may, upon
execution of this Fifth Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication as provided in Sections 3.01 and
3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Fifth Supplemental Indenture,
is in all respects ratified and confirmed, and this Fifth Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 8.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Fifth Supplemental Indenture.
SECTION 8.3. Governing Law.
-------------
This Fifth Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 8.4. Separability.
------------
In case any one or more of the provisions contained in this Fifth
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Fifth
Supplemental Indenture or of the Debentures, but this Fifth Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
19
SECTION 8.5. Counterparts.
------------
This Fifth Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
20
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
BANK ONE CORPORATION
By:
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
Attest:
By:
Name: ▇▇▇▇▇▇ ▇. Renchof
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By:
Name:
Title:
Attest:
By:
21