<PAGE>
As filed with the Securities and Exchange Commission on October __, 1995
Registration No. 33-61667
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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FIRST BANK SYSTEM, INC.
(Exact name of registrant as specified in its charter)
Delaware 41-0255900
(State or other jurisdiction (I.R.S Employer
of incorporation or organization) Identification No.)
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
(612) 973-1111
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Lee R. Mitau Copy to:
First Bank System, Inc. Patrick F. Courtemanche
First Bank Place Dorsey & Whitney P.L.L.P.
601 Second Avenue South 220 South Sixth Street
Minneapolis, Minnesota 55402-4302 Minneapolis, Minnesota 55402
(612) 973-1111 (612) 340-2780
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. / /
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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/
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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 statement number of
the earlier effective registration statement for the same offering.
/ / ___________
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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. / / ___________
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If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
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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 SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED OCTOBER 10, 1995
FIRST BANK SYSTEM, INC.
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41,000 SHARES
OF
COMMON STOCK
($1.25 PAR VALUE)
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This Prospectus relates to an aggregate of 41,000 shares (the "Shares") of
common stock, par value $1.25 per share (the "Common Stock"), of First Bank
System, Inc., a Delaware corporation (the "Company" or "FBS"), reserved for
issuance upon exercise of warrants (the "Warrants") to be issued by the Company
pursuant to the settlement of a class action lawsuit (the "Class Action")
entitled PHILLIP DISMUKE, ET AL. V. EDINA REALTY, INC. filed in Minnesota State
Court, Hennepin County, Court File No. 92-8716. Each Warrant entitles the
holder thereof to purchase Shares at an exercise price of $40.50 per share,
subject to certain adjustments, at any time, until the expiration of the
Warrants at 5:00 p.m. New York time on May 17, 2005.
Assuming the Warrants are exercised in full at their initial exercise
price, the Company will receive proceeds in the amount of $1,660,500 before
deducting estimated expenses of $67,000. See "Use of Proceeds." The Company
will pay all expenses with respect to this offering.
The Common Stock is traded on the New York Stock Exchange. On August 7,
1995, the closing price of the Common Stock on the New York Stock Exchange was
$43.375 per share.
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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 SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS, DEPOSITS
OR OTHER OBLIGATIONS OF ANY BANK OR SAVINGS ASSOCIATION
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION,
BANK INSURANCE FUND, SAVINGS ASSOCIATION INSURANCE FUND
OR ANY OTHER GOVERNMENTAL AGENCY.
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No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the offer contained herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any securities offered hereby in any
jurisdiction in which it is not lawful or to any person to whom it is not lawful
to make any such offer or solicitation. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any circumstances, create any
implication that information herein is correct as of any time subsequent to the
date hereof.
The date of this Prospectus is October __, 1995.
<PAGE>
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, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information concerning the Company can be inspected and
copied at the public reference facilities of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's regional offices at
7 World Trade Center, Suite 1300, New York, New York 10048 and CitiCorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the Common Stock of the Company is listed on the New York Stock
Exchange, and reports, proxy statements and other information concerning the
Company can also be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
The Company has filed a registration statement on Form S-3 (together with
all amendments and exhibits thereto, including documents and information
incorporated by reference, the "Registration Statement") with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), relating to
the Shares. This Prospectus does not contain all the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement. Statements contained in
this Prospectus as to the contents of any document are not necessarily complete,
and in each instance reference is made to such document itself, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company which have been filed with the
Commission are hereby incorporated by reference in this Prospectus: (a) the
Company's Annual Report on Form 10-K for the year ended December 31, 1994; (b)
the Company's Quarterly Report on Form 10-Q for the quarters ended March 31,
1995 and June 30, 1995; (c) the Company's Current Reports on Form 8-K filed
March 3, 1995 (as amended by Amendment No. 1 on Form 8-K/A filed March 7, 1995),
filed April 13, 1995, filed April 25, 1995, filed July 6, 1995, filed
August 18, 1995 (as amended by Amendment No. 1 on Form 8-K/A filed August 30,
1995) and filed September 11, 1995; (d) the Company's Current Report on Form
8-K/A filed February 13, 1995 (constituting Amendment No. 4 to the Current
Report on Form 8-K filed August 5, 1994); and (e) the description of the
Company's Common Stock contained in Item 1 of the Company's Registration
Statement on Form 8-A dated March 19, 1984, as amended in its entirety by that
Form 8 Amendment dated February 26, 1993, and that Form 8-A/A-2 dated October 6,
1994, and any amendment or report filed for the purpose of updating such
description filed subsequent to the date of this Prospectus and prior to the
termination of the offering described herein; and the description of the rights
to purchase preferred stock contained in Item 1 of the Company's Registration
Statement on Form 8-A dated December 21, 1988, as amended by that Form 8
Amendment dated June 11, 1990, and as amended in its entirety by that Form 8
Amendment dated February 26, 1993, and any amendment or report filed for the
purpose of updating such description filed subsequent to the date of this
Prospectus and prior to the termination of the offering described herein.
All documents filed by the Company 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 Common Stock shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained herein or
in a document all or part of which is 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
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.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated herein by reference
(excluding exhibits unless specifically incorporated therein). Requests for
such copies should be directed to
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<PAGE>
Karin E. Glasgow, First Bank System, Inc., First Bank Place, 601 Second
Avenue South, Minneapolis, Minnesota 55402-4302, telephone number (612) 973-
1111.
FIRST BANK SYSTEM, INC.
GENERAL
The Company is a regional bank holding company headquartered in
Minneapolis, Minnesota. The Company is comprised of eight banks, a savings
association and other financial companies with 350 offices primarily in the 11
states of Minnesota, Colorado, North Dakota, South Dakota, Montana, Illinois,
Wisconsin, Iowa, Kansas, Nebraska and Wyoming. Through its subsidiaries, the
Company provides commercial and agricultural finance, consumer banking, trust,
capital markets, treasury management, investment management, data processing,
leasing, mortgage banking and brokerage services. At September 30 1995, the
Company and its consolidated subsidiaries had consolidated assets of $33.0
billion, consolidated deposits of $21.9 billion and shareholders'
equity of $2.7 billion.
The subsidiary banks of the Company engage in general commercial banking
business, principally in domestic markets, and provide banking and ancillary
services to individuals, businesses, institutional organizations, governmental
entities and other financial institutions. The largest subsidiary bank, First
Bank National Association ("FBNA"), had assets of $15.4 billion at September 30,
1995.
The Company is a legal entity separate and distinct from its banking and
non-banking affiliates. The principal sources of the Company's income are
dividends, interest and fees from FBNA and the other banking and non-banking
affiliates. Certain restrictions exist regarding the extent to which bank and
thrift subsidiaries may transfer funds to the Company in the form of dividends,
loans or advances. Federal law prevents the Company and its nonbank
subsidiaries from borrowing from bank and thrift subsidiaries unless the loans
are secured by various types of collateral. Further, these secured loans that
may be made by bank and thrift subsidiaries to the Company or any individual
affiliate are generally limited to 10 percent of the bank's or thrift's equity
and 20 percent of the bank's or thrift's equity for loans to all affiliates and
the Company in the aggregate. In addition, payment of dividends to the Company
by its subsidiary banks and thrift is subject to review by regulatory agencies
and is subject to various statutory limitations and in certain circumstances
requires approval by regulatory agencies.
The Company was incorporated under Delaware law in 1929 and has functioned
as a multi-bank holding company since that time. Its principal executive offices
are located at First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota
55402-4302 (telephone (612) 973-1111). For further information concerning the
Company, see the Company documents incorporated by reference herein as described
under "Incorporation of Certain Documents by Reference."
RECENT DEVELOPMENTS
The Company reported third quarter 1995 net income of $145.7 million, an
increase of $33.2 million, or 30 percent, from the third quarter of 1994. On a
per share basis, earnings increased 35 percent to $1.08, compared with $.80 for
the year-earlier quarter. The Company's net income for the first nine months
was $417.4 million, or $3.05 per share, compared with $340.3 million, or $2.43
per share, for the first nine months of 1994.
Return on average assets and return on average common equity in the third
quarter of 1995 were 1.76 percent and 21.2 percent, respectively, compared with
1.32 percent and 16.5 percent in the third quarter of 1994. The net interest
margin on a taxable-equivalent basis strengthened 11 basis points from the third
quarter of 1994 to 4.85 percent. The efficiency ratio, the ratio of expenses to
revenues, continued to improve, to 53.9 percent from 57.9 percent for the third
quarter of 1994.
Strong third quarter results reflected noninterest income growth, ongoing
expense control, and effective capital management. Third quarter noninterest
income was $216.5 million, an increase of $46.2 million, or 27 percent, from
the same quarter of 1994. The increase was primarily due to a $31 million gain
on the sale of 63 branches, a $13.5 million increase (27 percent) in credit card
fees, and a $3.9 million increase (10 percent) in trust fees. Third quarter
noninterest expense totaled $311.1 million, a decrease of $1.5 million, or 0.5
percent, from the third quarter of 1994. In the third quarter, the Company
expensed unamortized software costs of approximately $23 million, primarily
related to a change in the Company's policy to expense software costs, and also
recorded a charge of approximately $8 million to write off miscellaneous other
assets. In addition, the Company received an FDIC premium rebate of
approximately $10 million. Net interest income on a taxable-equivalent basis
was $360.5 million, a decrease of $6.5 million, or 2 percent compared with the
third quarter of 1994. This decrease was primarily attributable to a $1.2
billion (4 percent) decrease in total earning assets, an increase in funding
costs, and the repurchase of common stock. The provision for credit losses for
the quarter was up $4.0 million, or 15 percent, to $31.0 million from third
quarter 1994.
Nonperforming assets declined to $166.9 million at September 30, 1995, down
$65.4 million, or 28 percent, from $232.3 million at December 31, 1994. The
ratio of the allowance for credit losses to nonperforming loans at quarter-end
was 400 percent compared with 283 percent at the end of 1994.
On September 7, 1995, the Company announced that it will seek a buyer for
most of its mortgage banking company and that it will instead deliver mortgage
loan products through bank branches and telemarketing.
On September 20, 1995, the Company announced an agreement to sell its Edina
Realty and Equity Title Services operations to a local investor group.
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<PAGE>
USE OF PROCEEDS
Assuming that all of the Warrants are exercised in full at their initial
exercise price, the Company will receive proceeds of approximately $1,660,500,
before deducting expenses payable by the Company estimated at $67,000. Any
proceeds to the Company from the sale of any Shares upon exercise of the
Warrants will be used for working capital and other general corporate purposes.
DESCRIPTION OF WARRANTS AND
PLAN OF DISTRIBUTION
On January 24, 1995, the Company completed its merger with Metropolitan
Financial Corporation ("MFC"), a publicly held regional financial services
holding company headquartered in Minneapolis, Minnesota (the "Merger"). Prior
to the Merger, Edina Realty, Inc. ("Edina"), a wholly owned subsidiary of MFC,
agreed to settle the Class Action, and Edina and MFC executed an Amended
Settlement Agreement dated as of February 8, 1994, which, among other things,
provided for the distribution to class members of warrants to purchase stock of
MFC. On July 21, 1994, the Company signed a definitive agreement to acquire
MFC. On October 12, 1994, Edina and MFC executed an Addendum to the February 8,
1994, Amended Settlement Agreement, which provided for the issuance of warrants
to purchase shares of common stock of the Company instead of warrants to
purchase shares of common stock of MFC subject to the completion of the Merger.
The Company has issued the Warrants as part of the Class Action
settlement. The Shares offered hereby are being offered by the Company to
holders of Warrants. The Company will reserve 50,000 shares of Common Stock
for issuance upon exercise of the Warrants.
The Warrants were issued in fully registered, certificated form ("Warrant
Certificates") under the provisions of a Warrant Agreement dated as of
October 2, 1995 (the "Warrant Agreement"), between the Company and First
Chicago Trust Company of New York, as Warrant Agent (the "Warrant Agent").
Each Warrant entitles the registered holder thereof (the "Warrantholder")
to purchase one share of Common Stock until May 17, 2005. A Warrantholder may
exercise a Warrant by surrendering the Warrant Certificate, with the form of
election to purchase set forth thereon properly completed and executed, together
with payment of the exercise price at the office or agency maintained by the
Company for that purpose (initially the corporate trust office of the Warrant
Agent but is subject to change by the Company). Payment of the aggregate
Exercise Price shall be made by certified or official bank check. The Warrant
Agent will return a certificate evidencing the number of Shares issued upon
exercise of the Warrant, together with a new Warrant Certificate if less than
all of the Shares covered by the Warrant Certificate are being purchased. The
Warrant Agreement provides that, upon the occurrence of certain
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<PAGE>
events, the Exercise Price may, subject to certain conditions, be adjusted.
When delivered, Shares shall be fully paid and nonassessable.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value (as determined pursuant to the Warrant Agreement) of a full Warrant or a
full Share, as the case may be.
The outline above is subject to the provisions of the Warrants and the
Warrant Agreement. Copies of the form of Warrant Certificate and the Warrant
Agreement have been filed as exhibits to the Registration Statement of which
this Prospectus is a part and reference is made to such exhibits for a detailed
description of the provisions thereof summarized above.
EXPERTS
The consolidated financial statements of the Company for the year ended
December 31, 1994, appearing in the Company's Current Report on Form 8-K filed
March 3, 1995, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
The consolidated financial statements of FirsTier Financial, Inc. and
subsidiaries appearing in the Current Report on Form 8-K of the Company filed
on August 18, 1995, as amended by the Current Report on Form 8-K/A of the
Company filed August 30, 1995, have been audited by Arthur Andersen LLP,
independent public accountants, as set forth in their report thereon included
therein. Such consolidated financial statements are incorporated herein by
reference in reliance upon the authority of said firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the Shares offered hereby has been passed upon for the
Company by Dorsey & Whitney P.L.L.P., 220 South Sixth Street, Minneapolis,
Minnesota 55402. The Dorsey & Whitney P.L.L.P. firm and certain of its members
are indebted to and have other banking and trust relationships with certain
banking subsidiaries of the Company.
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<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee . . . . . . . . $ 573
Listing Fees . . . . . . . . . . . . 14,750
Accounting Fees and Expenses . . . . 3,000
Legal Fees and Expenses. . . . . . . 30,000
Printing . . . . . . . . . . . . . . 15,000
Miscellaneous. . . . . . . . . . . . 3,677
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Total. . . . . . . . . . . . $67,000
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</TABLE>
All fees and expenses other than the SEC registration fee are estimated.
The expenses listed above will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, the directors and officers of First Bank System,
Inc. (the "Company") are entitled, under certain circumstances, to be
indemnified by the Company against all expenses and liabilities incurred or
imposed upon them as a result of suits brought against them as such directors
and officers, if they act in good faith and in a manner they reasonably believe
to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, have no reasonable cause to believe their
conduct was unlawful, except that no indemnification shall be made against
expenses in respect of any claim, issue or matter as to which they shall have
been adjudged to be liable to the Company, unless and only to the extent that
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, they are fairly and reasonably entitled to be
indemnified for such expenses which such court shall deem proper. Any such
indemnification may be made by the Company only as authorized in each specific
case upon a determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable
statutory standard of conduct.
Article Ninth of the Company's Restated Certificate of Incorporation, as
amended, provides that a director shall not be liable to the Company or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
the Delaware statutory provisions making directors personally liable for
unlawful dividends or unlawful stock repurchases or redemptions or (iv) for any
transaction from which the director derived an improper personal benefit.
The Bylaws of the Company provide that the officers and directors of the
Company and certain others shall be indemnified substantially to the same extent
as permitted by Delaware Law.
The Company maintains a standard policy of officers' and directors'
liability insurance.
ITEM 16. LIST OF EXHIBITS
4.1 Specimen certificate representing the Common Stock of the Company
(incorporated by reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-3, dated January 7, 1991, File No.
33-38268).
4.2 Restated Certificate of Incorporation of the Company, as amended to
date (incorporated by reference to Exhibit 2.1 to the Company's Form
8-A/A-2, dated October 6, 1994, File No. 1-6880).
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<PAGE>
4.3 Certificate of Designation for First Bank System, Inc. Series 1990A
Preferred Stock. (Incorporated by reference to Exhibit 4.4 to
Amendment No. 1 to the Company's Registration Statement on Form S-3,
File No. 33-42650).
4.4 Certificate of Designation for First Bank System, Inc. Series 1991A
Convertible Preferred Stock. (Incorporated by reference to Exhibit
4.3 to the Company's Registration Statement on Form S-4, File No.
33-50700).
4.5 Certificate of Designation for First Bank System, Inc. Series A
Junior Participating Preferred Stock, as amended. (Incorporated by
reference to Exhibit 2.4 to the Registrant's Form 8-A/A-2 dated
October 6, 1994, File No. 1-6880.)
4.6 Bylaws of the Company, as amended to date (incorporated by reference
to Exhibit 3B to the Company's Annual Report on Form 10-K for the
year ended December 31, 1993, File No. 1-6880).
4.7 Rights Agreement dated as of December 21, 1988 between the Company
and Morgan Shareholder Services Trust Company (now known as First
Chicago Trust Company of New York) (incorporated by reference to
Exhibit 1 to the Company's Current Report on Form 8-K filed
January 5, 1989, File No. 1-6880).
4.8 Amendment No. 1, dated as of May 30, 1990, to Rights Agreement
(incorporated by reference to Exhibit 4(a) to the Company's Current
Report on Form 8-K dated June 5, 1990, File No. 1-6880).
4.9 Amendment No. 2, dated as of February 17, 1993, to Rights Agreement
(incorporated by reference to Exhibit 4(a) to the Company's Current
Report on Form 8-K filed March 1, 1993, File No. 1-6880).
4.10 Stock Purchase Agreement, dated as of May 30, 1990, among Corporate
Partners, L.P., Corporate Offshore Partners, L.P., The State Board
of Administration of Florida and First Bank System, Inc. (without
exhibits). (Incorporated by reference to Exhibit 4.8 to Amendment
No. 1 to the Company's Registration Statement on Form S-3, File No.
33-42650).
4.11 First Amendment, dated as of June 30, 1990, to Stock Purchase
Agreement among Corporate Partners, L.P., Corporate Offshore
Partners, L.P., The State Board of Administration of Florida and
First Bank System, Inc. (Incorporated by reference to Exhibit 4.9 to
Amendment No. 1 to the Company's Registration Statement on Form S-3,
File No. 33-42650).
4.12 Second Amendment, dated as of July 18, 1990, to Stock Purchase
Agreement among Corporate Partners, L.P., Corporate Offshore
Partners, L.P., The State Board of Administration of Florida and
First Bank System, Inc. (Incorporated by reference to Exhibit 4.10
to Amendment No. 1 to the Company's Registration Statement on Form
S-3, File No. 33-42650).
4.13 Stock Purchase Agreement, dated as of May 30, 1990, between The
State Board of Administration of Florida and First Bank System, Inc.
(without exhibits). (Incorporated by reference to Exhibit 4.11 to
Amendment No. 1 to the Company's Registration Statement on Form S-3,
File No. 33-42650).
4.14 Form of Periodic Stock Purchase Right. (Incorporated by reference to
Exhibit 4.12 to Amendment No. 1 to the Company's Registration
Statement on Form S-3, File No. 33-42650).
4.15 Form of Risk Event Warrant. (Incorporated by reference to
Exhibit 4.13 to Amendment No. 1 to the Company's Registration
Statement on Form S-3, File No. 33-42650).
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<PAGE>
4.16 Registration Rights Agreement, dated as of July 18, 1990, among
Corporate Partners, L.P., Corporate Offshore Partners, L.P., The
State Board of Administration of Florida and First Bank System, Inc.
(Incorporated by reference to Exhibit 4.14 to Amendment No. 1 to the
Company's Registration Statement on Form S-3, File No. 33-42650).
4.17 Registration Rights Agreement, dated as of July 18, 1990, between
The State Board of Administration of Florida and First Bank System,
Inc. (Incorporated by reference to Exhibit 4.14 to Amendment No. 1
to the Company's Registration Statement on Form S-3, File No. 33-
42650).
4.18 Warrant Agreement, dated as of October 2, 1995, between the
Company and First Chicago Trust Company of New York as Warrant
Agent.*
4.19 Form of Warrant Certificate.*
5 Opinion of Dorsey & Whitney P.L.L.P. regarding legality.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Arthur Andersen LLP.*
23.3 Consent of Dorsey & Whitney P.L.L.P. (included in Exhibit 5 to this
Registration Statement).*
24 Powers of Attorney.**
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* Filed herewith.
** Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change to such information
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high 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 320% change in the "maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change in the information set forth in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
II-3
<PAGE>
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the 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
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-4
<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 to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Minneapolis, State of Minnesota, on October 10,
1995.
FIRST BANK SYSTEM, INC.
By /s/ John F. Grundhofer
----------------------------------------------
John F. Grundhofer
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment to
the registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE AND TITLE DATE
/s/ John F. Grundhofer
_____________________________________________ October 10, 1995
John F. Grundhofer,
Chairman, President, Chief Executive Officer
and Director (principal executive officer)
/s/ Richard A. Zona
_____________________________________________ October 10, 1995
Richard A. Zona,
Vice Chairman and Chief Financial
Officer (principal financial officer)
/s/ David J. Parrin
_____________________________________________ October 10, 1995
David J. Parrin,
Senior Vice President and Controller
(principal accounting officer)
____________________________________________
Roger L. Hale, Director
*
____________________________________________ October 10, 1995
Delbert W. Johnson, Director
*
____________________________________________ October 10, 1995
John H. Kareken, Director
II-5
<PAGE>
*
____________________________________________ October 10, 1995
Richard L. Knowlton, Director
____________________________________________
Jerry W. Levin, Director
*
____________________________________________ October 10, 1995
Kenneth A. Macke, Director
*
____________________________________________ October 10, 1995
Marilyn C. Nelson, Director
*
____________________________________________ October 10, 1995
Edward J. Phillips, Director
*
____________________________________________ October 10, 1995
James J. Renier, Director
*
____________________________________________ October 10, 1995
S. Walter Richey, Director
*
____________________________________________ October 10, 1995
Richard L. Robinson, Director
*
____________________________________________ October 10, 1995
Richard L. Schall, Director
*
____________________________________________ October 10, 1995
Lyle E. Schroeder, Director
* By /s/ David J. Parrin
_______________________________________
David J. Parrin
Pro se and as Attorney-in-Fact
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit Form of Filing
- ------- ---------------------- --------------
4.18 Warrant Agreement, dated as of October 2,
1995, between the Company and First Chicago
Trust Company of New York as Warrant Agent. Electronic Transmission
4.19 Form of Warrant Certificate . . . . . . . . Electronic Transmission
5. Opinion of Dorsey & Whitney P.L.L.P.
regarding legality. . . . . . . . . . . . . Electronic Transmission
23.1 Consent of Ernst & Young LLP. . . . . . . . Electronic Transmission
23.2 Consent of Arthur Andersen LLP. . . . . . . Electronic Transmission
23.3 Consent of Dorsey & Whitney P.L.L.P.
(included in Exhibit 5 to this Registration
Statement). . . . . . . . . . . . . . . . . Electronic Transmission
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
FIRST BANK SYSTEM, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
as Warrant Agent
----------------------------
WARRANT AGREEMENT
Dated as of October 2, 1995
-----------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS*
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Appointment of Warrant Agent. . . . . . . . . . . . . . . . 1
Section 2. Form of Warrant Certificates. . . . . . . . . . . . . . . . 1
Section 3. Execution and Countersignature of Warrant Certificates. . . 2
Section 4. Registration. . . . . . . . . . . . . . . . . . . . . . . . 3
Section 5. Registration of Transfers and Exchanges . . . . . . . . . . 3
Section 6. Duration and Exercise of Warrants and Residual Value. . . . 4
Section 7. Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . 6
Section 8. Mutilated or Missing Warrant Certificates . . . . . . . . . 7
Section 9. Reservation of Shares . . . . . . . . . . . . . . . . . . . 7
Section 10. Obtaining of Governmental Approvals and Stock Exchange
Listings. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 11. Adjustments of Exercise Price and Number of Shares
Purchasable or Number of Warrants . . . . . . . . . . . . . 8
Section 12. Fractional Warrants and Fractional Shares . . . . . . . . . 15
Section 13. Notices to Warrantholders Upon Adjustment of Exercise
Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 14. Warrant Certificate Holder Not Deemed a Stockholder . . . . 19
Section 15. Merger, Consolidation or Change of Name of Warrant Agent. . 19
Section 16. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 20
Section 17. Disposition of Proceeds of Exercise of Warrants . . . . . . 23
Section 18. Change of Warrant Agent . . . . . . . . . . . . . . . . . . 23
Section 19. Identity of Transfer Agent. . . . . . . . . . . . . . . . . 24
Section 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 21. Supplements and Amendments. . . . . . . . . . . . . . . . . 26
Section 22. Delivery of Prospectuses. . . . . . . . . . . . . . . . . . 26
Section 23. Successors. . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 24. Termination . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 25. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 27
Section 26. Benefits of This Agreement. . . . . . . . . . . . . . . . . 27
Section 27. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 27
Section 28. Captions. . . . . . . . . . . . . . . . . . . . . . . . . . 28
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Exhibit A. Form of Warrant Certificate . . . . . . . . . . . . . . . . A-1
- ----------
* This Table of Contents does not constitute a part of this Agreement or have
any bearing upon the interpretation of any of its terms or provisions.
- i -
<PAGE>
WARRANT AGREEMENT dated as of October 2, 1995, between First Bank
System, Inc., a Delaware corporation (the "Company"), and First Chicago Trust
Company of New York, a corporation duly organized and existing under the laws
of the State of New York, as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue a maximum of 50,000 warrants
entitling the holders thereof to purchase an aggregate of a maximum of 50,000
shares of its common stock, $1.25 par value (the "Common Stock") (such shares
being hereinafter referred to as the "Shares"); such warrants being herein
referred to as the "Warrants" and the certificates evidencing the Warrants
being hereinafter referred to as "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, replacement and exercise of Warrant
Certificates and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. FORM OF WARRANT CERTIFICATES. The Warrant Certificates to be
delivered pursuant to this Agreement shall be in registered form only and shall
be substantially in the form set forth in Exhibit A attached hereto.
-1-
<PAGE>
SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES.
Warrant Certificates shall be signed on behalf of the Company by the person who,
at the date of such execution, shall be its President, Chief Executive Officer,
or a Vice President and by its Secretary or an Assistant Secretary, and such
execution shall be under the Company's corporate seal. Each such signature upon
the Warrant Certificates may be in the form of a facsimile signature of the
present or any future President, Chief Executive Officer, Vice President,
Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on
the Warrant Certificates, and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been President, Chief Executive
Officer, a Vice President, Secretary or an Assistant Secretary on the date of
such adoption and use by the Company. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed, or whose
facsimile signature shall have been imprinted by or at the Company's order on,
any of the Warrant Certificates shall cease to be such officer before the
Warrant Certificates so signed or imprinted shall have been countersigned by the
Warrant Agent or disposed of by the Company, such Warrant Certificates
nevertheless may be countersigned and delivered or disposed of as though such
person had not ceased to be such officer of the Company.
In connection with the initial issuance of the Warrant Certificates, upon
receipt of Warrant Certificates executed by the Company and a written order of
the Company executed by its President, Chief Executive Officer or a Vice
President and
-2-
<PAGE>
by its Secretary or an Assistant Secretary (a "Company Order"), the Warrant
Agent shall countersign and deliver Warrant Certificates in accordance with the
instructions contained in such order.
At any time and from time to time after the execution and delivery of this
Warrant Agreement, the Company may deliver Warrant Certificates executed by the
Company to the Warrant Agent, together with a Company Order for the
countersignature and delivery by the Warrant Agent of such Warrant Certificates,
and the Warrant Agent in accordance with such Company Order shall countersign
and deliver such Warrant Certificates as in this Warrant Agreement provided and
not otherwise.
Warrant Certificates shall be dated the date of countersignature by the
Warrant Agent.
SECTION 4. REGISTRATION. Warrant Certificates distributed as provided in
Section 11 shall be registered in the names of the record holders of the Warrant
Certificates to whom they are to be distributed.
The Company and the Warrant Agent may deem and treat the registered holder
of a Warrant Certificate as the absolute owner thereof for all purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES. The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificates upon the records to be maintained by it for that purpose (the
"Warrant Register"), upon surrender thereof to the Warrant Agent at its office
maintained for the
-3-
<PAGE>
purpose of registration of the issuance, exchange, transfer or exercise of the
Warrants at the location specified in Section 20 of this Agreement (the "Warrant
Agent Office"), accompanied (if so required by the Warrant Agent or by the
Company) by a written instrument or instruments of transfer in form satisfactory
to the Warrant Agent or the Company, as the case may be, duly executed by the
registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate or Warrant Certificates of
like tenor and representing in the aggregate a like number of Warrants shall be
issued to the transferee.
Warrant Certificates may be exchanged at the option of the holders thereof,
when surrendered to the Warrant Agent at the Warrant Agent Office, for a new
Warrant Certificate or new Warrant Certificates of like tenor and representing
in the aggregate a like number of Warrants.
Warrant Certificates surrendered for exchange, transfer or exercise shall
be canceled by the Warrant Agent. Such canceled Warrant Certificates shall then
be disposed of by the Warrant Agent in a manner satisfactory to the Company.
SECTION 6. DURATION AND EXERCISE OF WARRANTS AND RESIDUAL VALUE. The
Warrants shall expire at 5:00 p.m. New York time on May 17, 2005 (such date
of termination being herein referred to as the "Termination Date"). Each
Warrant may be exercised on any Business Day (as hereinafter defined) during
the period commencing at the opening of business on the date on or after May
18, 1995, that Warrants are first issued pursuant to this Agreement (or the
next day thereafter on which banks in New York City are not required or
authorized to be closed (a "Business Day") if the date of such issuance is
not a Business Day) and ending at
-4-
<PAGE>
the close of business on the Termination Date (or the next preceding Business
Day if the Termination Date is not a Business Day) (the "Exercise Period").
Subject to the provisions of this Agreement, during the Exercise Period the
holder of each Warrant shall have the right to purchase from the Company (and
the Company shall issue and sell to such holder) one (or such other number as
shall be determined by adjustment pursuant to the provisions of Section 11
hereof) fully paid and nonassessable whole Share at an exercise price of
$40.50 per share (such exercise price as the same may be adjusted from time
to time pursuant to the provisions of Section 11 hereof, being herein referred
to as the "Exercise Price") upon the surrender on any Business Day during such
Exercise Period to the Warrant Agent at the Warrant Agent Office of the Warrant
Certificate evidencing such Warrant, with the form of election to purchase on
the reverse thereof duly filled in and signed, and upon payment to the Warrant
Agent for the account of the Company of the Exercise Price in lawful money of
the United States of America. Payment of the aggregate Exercise Price shall be
made by certified or official bank check. The Warrants evidenced by a Warrant
Certificate shall be exercisable during the Exercise Period, at the election of
the registered holder thereof, either as an entirety or from time to time for
part of the number of Warrants specified in the Warrant Certificate. In the
event that less than all the Warrants evidenced by a Warrant Certificate
surrendered upon the exercise of Warrants are exercised at any time prior to the
close of business on the Termination Date, a new Warrant Certificate or
Certificates will be issued for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered.
-5-
<PAGE>
Subject to Section 7, upon such surrender of a Warrant Certificate and
payment of the Exercise Price, the Warrant Agent shall requisition from the
transfer agent for the Shares for issuance and delivery to or upon the written
order of the registered holder of such Warrant Certificate and in such name or
names as such registered holder may designate a certificate or certificates for
the Share or Shares issuable upon such exercise. Such certificate shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become the holder of record of such Share or Shares as
of the date of the surrender of such Warrant Certificate and payment of the
Exercise Price.
SECTION 7. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes attributable to the issuance of Warrant Certificates or the issuance of
Shares upon the exercise of Warrants; PROVIDED, HOWEVER, that the Company shall
not be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Warrant Certificates, or in respect of the
issue of any certificates for Shares upon exercise of Warrants, in a name other
than that of the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 8. MUTILATED OR MISSING WARRANT CERTIFICATES. In case any of the
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue, and the Warrant Agent shall, upon the order of the
Company,
-6-
<PAGE>
countersign and deliver, in exchange and substitution for and upon cancellation
of the mutilated Warrant Certificate, or in lieu of and substitution for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like
tenor and representing an equivalent number of Warrants, but only upon receipt
of evidence satisfactory to the Company and the Warrant Agent of such loss,
theft or destruction of such Warrant Certificate and indemnity or bond, if
requested, also satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such sums as the Company may require to cover any fees and expenses (including
the fees and expenses of the Warrant Agent) in connection therewith.
SECTION 9. RESERVATION OF SHARES. The Company will at all times through
the close of business on the Termination Date reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock, for the purpose of enabling it to satisfy any obligation to issue
Shares upon exercise of Warrants, the number of Shares deliverable upon the
exercise of all outstanding Warrants.
Before taking any action which would cause an adjustment pursuant to
Section 11 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action which may, in the opinion of its counsel (which may be counsel
employed by the Company), be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Shares at the Exercise Price as so
adjusted.
-7-
<PAGE>
The Company represents and warrants that all Shares issued upon exercise of
the Warrants will, upon issuance in accordance with the terms of this Agreement,
be duly authorized, validly issued, fully paid and nonassessable and free from
all liens and security interests thereon created by the Company.
SECTION 10. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE
LISTINGS. The Company covenants that if any of the Shares required to be
reserved for purposes of exercise of Warrants require, under any federal
securities law or applicable governing rule or regulation of any national
securities exchange, registration or approval of any governmental authority, or
listing on any such national securities exchange before the Shares may be issued
upon exercise, the Company will in good faith prior to the issuance of the
Shares endeavor to cause the Shares to be duly registered, approved or listed on
the relevant national securities exchange, as the case may be; provided,
however, that in no event shall such Shares be issued, and the Company is hereby
authorized to suspend the exercise of all Warrants, for the period during which
such registration, approval or listing is required but not in effect.
SECTION 11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE
OR NUMBER OF WARRANTS. The Exercise Price and the number of Shares purchasable
upon the exercise of each Warrant and the number of Warrants outstanding are
subject to adjustment from time to time upon the occurrence of the events
enumerated in this Section 11.
(a) In case the Company shall at any time after the date of this Agreement
(i) declare a dividend on the Common Stock payable in shares of Common Stock,
-8-
<PAGE>
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding
Common Stock into a smaller number of shares, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and kind of shares
of capital stock issuable upon exercise of a Warrant shall on such date be
proportionately adjusted to the extent necessary so that the holder of any
Warrant exercised after such time shall be entitled to receive the aggregate
number and kind of shares of capital stock which, if such Warrant had been
exercised immediately prior to such date, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above in this paragraph (a) shall occur.
(b) In case the Company shall issue rights or warrants to all holders of
Common Stock entitling them (for a period expiring within 45 calendar days after
the date of issuance) to subscribe for or purchase Common Stock (or securities
convertible into Common Stock) at a price per share of Common Stock (or having a
conversion price per share of Common Stock, if a security convertible into
Common Stock) less than the current market price per share of Common Stock (as
defined in Section 11(d)) on the record date mentioned below, the Exercise Price
to be in effect after such record date shall be determined by multiplying the
Exercise
-9-
<PAGE>
Price in effect immediately prior to such record date by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so to be offered
(or the aggregate initial conversion price of the convertible securities so to
be offered) would purchase at such current market price, and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock to be offered
for subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription price may be paid
in a consideration part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined by the Board of Directors of
the Company. Shares of 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 such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights or
warrants are not so issued, the Exercise Price shall again be adjusted to be the
Exercise Price which would then be in effect if such record date had not been
fixed, but such subsequent adjustment shall not affect the number of Shares
issued upon any exercise of Warrants prior to the date such adjustment is made.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing
-10-
<PAGE>
corporation) of evidences of indebtedness or assets (other than cash dividends
or cash distributions payable out of consolidated earnings or earned surplus or
dividends payable in Common Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b)), the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, of which the numerator
shall be the current market price per share of Common Stock (as defined in
Section 11(d)) on such record date, less the fair market value (as determined by
the Board of Directors of the Company, whose determination shall be conclusive,
and described in a statement filed with the Warrant Agent) of the portion of the
assets or evidences of indebtedness so to be distributed or of such subscription
rights or warrants applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of Common Stock. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that it is not so made, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if such record had not
been fixed.
(d) For the purpose of any computation under Section 11(b) or (c), the
current market price per share of Common Stock on any date shall be deemed to be
the average of the daily closing prices for the 30 consecutive trading days on
the New York Stock Exchange commencing 45 trading days before such date. The
closing price for each day shall be the last sale price regular way or, in case
no such sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if the
Common Stock is not listed or
-11-
<PAGE>
admitted to trading on such exchange, on the principal national securities
exchange on which Common Stock is listed or admitted to trading or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, the average of the highest reported bid and lowest reported asked
price as furnished by the National Association of Securities Dealers ("NASD") or
similar organization if the NASD is no longer reporting such information.
(e) No adjustment in the Exercise Price shall be required unless such
adjustments would require an increase or decrease of at least 1% in such price;
PROVIDED, HOWEVER, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(f) In the event that at any time, as a result of an adjustment made
pursuant to Section 11(a), the holder of any Warrant thereafter exercised shall
become entitled to receive any shares of capital stock of the Company other than
shares of Common Stock, thereafter the number of such other shares so receivable
upon exercise of any Warrant shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Shares contained in Sections 11(a) through (c), inclusive, and
the provisions of Sections 6, 7, 9, 10, 11(e), 11(j) and 12 with respect to the
Shares shall apply on like terms to any such other shares.
(g) In any case in which this Section 11 shall require that an adjustment
in the Exercise Price be made effective as of record date for a specified event,
the
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<PAGE>
Company may elect to defer until the occurrence of such event the issuing to the
holder of any Warrant exercised after such record date the Shares and other
capital stock of the Company, if any, issuable upon such exercise over and above
the Shares and other capital stock of the Company, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment;
PROVIDED, HOWEVER, that the Company shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Exercise Price as a result of the
calculations made in Section 11(a), (b) or (c), each Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Exercise Price, that number of Shares
(calculated to the nearest hundredth) obtained by (i) multiplying the number of
Shares purchasable upon exercise of a Warrant immediately prior to such
adjustment of the number of Shares by the Exercise Price in effect immediately
prior to such adjustment of the Exercise Price, and (ii) dividing the product so
obtained by the Exercise Price in effect immediately after such adjustment of
the Exercise Price.
(i) The Company may elect on or after the date of any adjustment of the
Exercise Price to adjust the number of Warrants, in substitution for an
adjustment in the number of Shares purchasable upon the exercise of a Warrant as
provided in Section 11(h).
-13-
<PAGE>
(j) In case of any capital reorganization of the Company, or in case of
the consolidation of the Company with or the merger of the Company into any
other corporation (other than a consolidation or merger in which the Company is
the continuing corporation) or of the sale of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation, each
Warrant shall after such reorganization, consolidation, merger or sale be
exercisable, upon the terms and conditions specified in this Agreement, for the
number of shares of stock or other securities or property to which a holder of
the number of Shares purchasable (at the time of such reorganization,
consolidation, merger or sale) upon exercise of such Warrant would have been
entitled upon such reorganization, consolidation, merger or sale; and in any
such case, if necessary, the provisions set forth in this Section 11 with
respect to the rights and interest thereafter of the holders of the Warrants
shall be appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or property thereafter
deliverable on the exercise of the Warrants.
(k) Any determination as to fair market value pursuant to this Section 11
or as to whether an adjustment in the Exercise Price in effect hereunder is
required pursuant to Sections 11(a) through 11(c), or as to the amount of any
such adjustment, if required, shall be binding upon the holders of Warrants and
the Company if made in good faith by the Company and, if required by the
provisions of Section 13, evidenced by a certificate of a firm of independent
public accountants (who may be the independent accountants regularly employed by
the Company) selected by the Company.
-14-
<PAGE>
SECTION 12. FRACTIONAL WARRANTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Warrants on
any distribution of Warrants to holders of Warrant Certificates pursuant to
Section 11(i) or to distribute Warrant Certificates which evidence fractional
Warrants. In lieu of such fractional Warrants there shall be paid to the
registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a full Warrant. For purposes of
this Section 12(a), the current market value of a Warrant shall be the closing
price of the Warrant (as determined pursuant to the method delineated for such a
determination in respect of the Common Stock in the second sentence of Section
11(d)) for the trading day immediately prior to the date on which such
fractional Warrant would have been otherwise issuable.
(b) Notwithstanding an adjustment pursuant to Section 11(h) in the number
of Shares purchasable upon the exercise of a Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the registered holders of Warrant Certificates at
the time such Warrant Certificates are issued as herein provided an amount in
cash equal to the same fraction of the current market value of a share of Common
Stock. For purposes of this Section 12(b), the current market value of a share
of Common Stock shall be the closing price of a share of Common Stock (as
determined pursuant to the second sentence of Section 11(d)) for the trading day
immediately prior to the date of such exercise.
-15-
<PAGE>
SECTION 13. NOTICES TO WARRANTHOLDERS UPON ADJUSTMENT OF EXERCISE PRICE.
Upon any adjustment of the Exercise Price pursuant to Section 11, the Company
within 20 calendar days thereafter shall (a) deliver to the Warrant Agent a
certificate setting forth the Exercise Price after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculations are based and setting forth the number of Shares purchasable
upon exercise of a Warrant or number of Warrants after such adjustment in the
Exercise Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (b) cause to be given to each
of the registered holders of the Warrant Certificates, at the holder's address
appearing on the Warrant Register, written notice of such adjustments by first-
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as part of the notice required to be mailed under the other
provisions of this Section 13. Whenever the Exercise Price is adjusted, as
herein provided, the Company shall cause the Warrant Agent promptly to mail by
first-class mail, postage prepaid, to each registered holder, notice of such
adjustment or adjustments and shall deliver to the Warrant Agent a certificate
setting forth the Exercise Price after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such certificate shall be
conclusive evidence of the correctness of such adjustment. The Warrant Agent
shall be entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same,
from time to time, to any registered
-16-
<PAGE>
holder desiring an inspection thereof during reasonable business hours. The
Warrant Agent shall not at any time be under any duty or responsibility to any
registered holders to determine whether any facts exist which may require any
adjustment of the Exercise Price or other stock or property purchasable on the
exercise thereof, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed in making such adjustment.
In case:
(a) the Company shall authorize the issuance to all holders of Common
Stock of rights or warrants to subscribe for or purchase capital stock of
the Company or of any other subscription rights or warrants;
(b) the Company shall authorize the distribution to all holders of
Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or
earned surplus or dividends payable in Common Stock);
(c) of any consolidation or merger to which the Company is a party
and for which approval of any shareholders of the Company is required, or
of the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any capital reorganization or any
reclassification of the Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination);
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
-17-
<PAGE>
(e) the Company proposes to take any other action which would require
an adjustment of the Exercise Price pursuant to Section 11;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered holders of the Warrant Certificates at his
address appearing on the Warrant Register, at least 20 calendar days (or 10
calendar days in any case specified in clauses (a) or (b) above) prior to the
applicable record date hereinafter specified, by first-class mail, postage
prepaid, a written notice stating (i) the date as of which the holders of record
of shares of Common Stock to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
consolidation, merger, conveyance, transfer, reorganization, reclassification,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of record of shares of Common Stock
shall be entitled to exchange such shares for securities or other property, if
any, deliverable upon such consolidation, merger, conveyance,
transfer, reorganization, reclassification, dissolution, liquidation or winding
up. The failure to give notice required by this Section 13 or any defect
therein shall not affect the legality or validity of any distribution, right,
warrant, consolidation, merger, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up or the vote upon any
action.
SECTION 14. WARRANT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. Nothing
contained in this Agreement or in any of the Warrant Certificates shall be
construed as conferring upon the holders thereof the right to vote or to consent
or to receive notice as shareholders in respect of the meetings of shareholders
or the
-18-
<PAGE>
election of directors of the Company or any other matter, or any rights
whatsoever as shareholders of the Company.
SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any
corporation into which the Warrant Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the stock transfer or corporate trust business of the
Warrant Agent, shall be the successor to the Warrant Agent hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Warrant Agent under the provisions of Section 18. In case at the
time such successor to the Warrant Agent shall succeed under this Agreement any
of the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and in case at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates in the name of the predecessor Warrant
Agent; and in all such cases, such countersignatures shall have the same effect
as if the successor Warrant Agent had itself signed such Warrant Certificates.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name, and in the case at the time any of the
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<PAGE>
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates in its prior name, and in all such cases,
such countersignatures shall have the same effect as if the successor Warrant
Agent had itself signed such Warrant Certificates.
SECTION 16. WARRANT AGENT. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The statements of fact and recitals contained herein and in the
Warrant Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of the same
except such as describe the Warrant Agent or action taken or to be taken by it.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company, nor shall it at any
time be under any duty or responsibility to any holder of a Warrant to make or
cause to be made any adjustment in the Exercise Price or in the number of Shares
issuable (except as instructed by the Company), or to determine whether any
facts exist which may require any such adjustments, or with respect to the
nature or extent of or method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company), and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant
Certificate
-20-
<PAGE>
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or other
paper, document or instrument reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent under this Agreement, to
reimburse the Warrant Agent upon demand for all reasonable expenses,
disbursements and advances incurred or made by the Warrant Agent in accordance
with the provisions of this Agreement and to indemnify the Warrant Agent and
save it harmless against any and all losses, liabilities and expenses, including
judgments, costs and reasonable counsel fees, incurred without negligence, bad
faith or willful misconduct on its part, for anything done or omitted by the
Warrant Agent arising out of or in connection with this Agreement.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred.
(g) The Warrant Agent, and any stockholder, director, officer or employee
thereof, may buy, sell or deal in any of the Warrants or other securities of the
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<PAGE>
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not the Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties are only such duties as are specifically set forth in this
Agreement.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Warrant Agent for the carrying out or performing of the provisions of
this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof by the
Company or in respect of the validity or execution of any Warrant Certificate by
the Company; nor shall the Warrant Agent by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of the
Shares to be issued pursuant to this Agreement or any Warrant Certificate or as
to whether the Shares will when issued be validly issued, fully paid and
nonassessable or, except with respect to the accuracy of the records kept by it
pursuant to Section 5 hereof, as to the Exercise Price or the number of Shares
issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to apply to and to
accept instructions with respect to the performance of its duties hereunder from
the
-22-
<PAGE>
President, Chief Executive Officer, any Vice President, the Secretary or an
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with the
terms of this Agreement and instructions of any such officer.
SECTION 17. DISPOSITION OF PROCEEDS OF EXERCISE OF WARRANTS. The Warrant
Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all moneys received by the Warrant Agent on
the purchase of Shares through the exercise of Warrants either by bank check or
certified check or wire transfer.
SECTION 18. CHANGE OF WARRANT AGENT. If the Warrant Agent shall resign
(such resignation to become effective not earlier than 30 days after the giving
of written notice thereof to the Company and the registered holders of Warrant
Certificates) or shall become incapable of acting as Warrant Agent, the Company
shall appoint a successor. If the Company shall fail to make such appointment
within a period of 30 days after it has been so notified in writing by the
Warrant Agent or by the registered holder of a Warrant Certificate (in the case
of incapacity of the Warrant Agent), then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a successor to the Warrant Agent. Pending appointment of a successor to the
Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. Any successor warrant agent,
whether appointed by the Company or by such a court, shall be (a) a bank or
trust company, or (b) an affiliate
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<PAGE>
thereof with a corporate trust or stock transfer department, in each case in
good standing, incorporated under the laws of the United States of America or
any state thereof and must have at the time of its appointment as warrant
agent a combined capital and surplus of at least $50,000,000. After
appointment the successor warrant agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor warrant agent any property at the time
held by it hereunder and execute and deliver, at the expense of the Company,
any further assurance, conveyance, act or deed necessary for the purpose.
Failure to give any notice provided for in this Section 18, however, or any
defect therein, shall not affect the legality or validity of the removal of
the Warrant Agent or the appointment of a successor warrant agent as the case
may be.
SECTION 19. IDENTITY OF TRANSFER AGENT. The Warrant Agent currently acts
as Transfer Agent for the Common Stock. Forthwith upon the appointment of any
subsequent transfer agent for the Common Stock, of any other shares of the
Company's capital stock issuable upon exercise of the Warrant, the Company will
file with the Warrant Agent a statement setting forth the name and address of
such subsequent transfer agent.
SECTION 20. NOTICES. Any notice or demand authorized by this Agreement to
be given or made by the Warrant Agent or by the registered holder of any Warrant
Certificate to or on the Company shall be sufficiently given or made if sent
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<PAGE>
by mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent), as follows:
First Bank System, Inc.
First Bank Place
601 Second Avenue South
Minneapolis, MN 55402-4302
Attention: Corporate Secretary
In case the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with the
Company) to the Warrant Agent as follows:
By Mail:
First Chicago Trust Company of New York
Suite 4660
P.O. Box 2565
Jersey City, N.J. 07303-2565
Attention: Tenders and Exchanges
By Hand or Overnight Courier:
First Chicago Trust Company of New York
Suite 4680
14 Wall Street, 8th Floor
New York, NY 10005
-25-
<PAGE>
Any notice pursuant to this Agreement to be given to the registered holder
of any Warrant Certificate shall be given to such holder by first-class mail,
postage prepaid, at his address appearing on the Warrant Register.
SECTION 21. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrant Certificates in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which shall not adversely
affect the interests of the holders of the Warrant Certificates.
SECTION 22. DELIVERY OF PROSPECTUSES. For so long as the Company may be
required by the Securities Act of 1933, as amended, or any other applicable
federal or state law, to furnish a prospectus to holders of Warrants upon their
exercise of Warrants, the Company shall cause to be kept at the Warrant Agent
Office sufficient quantities of such prospectus for delivery to holders of
Warrants upon their exercise thereof, and the Warrant Agent hereby agrees to
deliver or cause to be delivered such prospectuses to such holders of Warrants
together with the shares of Common Stock or other securities receivable by such
holders of Warrants upon such exercise.
SECTION 23. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
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<PAGE>
SECTION 24. TERMINATION. This Agreement shall terminate when all the
Warrants outstanding hereunder shall have been exercised or expired and the
Warrant Agent shall have fulfilled all its obligations hereunder.
Notwithstanding the foregoing, this Agreement will terminate on any earlier date
if all Warrants have been exercised. The provisions of Section 16 shall survive
such termination.
SECTION 25. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State.
SECTION 26. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or entity other than the Company, the Warrant
Agent and the registered holders of Warrant Certificates any legal or equitable
right, remedy or claim under this Agreement, but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrant Certificates.
SECTION 27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
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<PAGE>
SECTION 28. CAPTIONS. The captions of the Sections and subsections of
this Agreement have been inserted for convenience only and shall have no
substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date first above written.
FIRST BANK SYSTEM, INC.
By: /s/ Ann E. Underbrink
--------------------------------
Name: Ann E. Underbrink
------------------------------
Title: Vice President
-----------------------------
Attest:
/s/ John A. Blumenfeld
- --------------------------
Name: John A. Blumenfeld
--------------------
Title: Assistant Secretary
--------------------
FIRST CHICAGO TRUST
COMPANY OF NEW YORK
By /s/ Joanne Gorostiola
-----------------------------
Name: Joanne Gorostiola
--------------------------
Title: Assistant Vice President
-------------------------
[Seal]
Attest:
/s/ Ralph Persico
- -------------------------------
Name: Ralph Persico
--------------------------
Title: Customer Service Officer
------------------------
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<PAGE>
EXHIBIT A
VOID AFTER 5:00 P.M., NEW YORK TIME
ON MAY 17, 2005
Certificate Number Registered Warrants
W-________________ 5 Warrants
FIRST BANK SYSTEM, INC.
WARRANTS TO PURCHASE SHARES OF COMMON STOCK
CUSIP 319279 12 1
See Reverse Side for Additional Provisions
THIS WARRANT CERTIFICATE CERTIFIES that________________________________,
or or registered assigns, is the registered holder of the number of Warrants
(the "Warrants") expiring May 17, 2005 to purchase shares of Common Stock,
$1.25 par value, of First Bank System, Inc., a Delaware corporation (the
"Company"). This Warrant Certificate is issued under and in accordance with
the Warrant Agreement (the "Warrant Agreement") dated as of October 2, 1995,
between the Company and First Chicago Trust Company of New York, as Warrant
Agent.
Each Warrant entitles the holder to purchase from the Company during the
period from the date on or after May 18, 1995, that Warrants are first
issued pursuant to the Warrant Agreement through May 17, 2005 (the "Exercise
Period"), one (or such other number as may be determined by adjustment
pursuant to the Warrant Agreement upon the occurrence of certain events)
fully paid and nonassessable share of Common Stock, $1.25 par value, of
the Company (the "Shares") at the initial exercise price of $40.5 per Share
or at such other price as determined by adjustment pursuant to the Warrant
Agreement upon the occurrence of certain events (the "Exercise Price")
payable in lawful money of the United States of America upon surrender of
this Warrant Certificate and payment of the Exercise Price at the office or
agency of the Warrant Agent in Jersey City, New Jersey (the "Warrant Agent
Office"), but only subject to the conditions set forth herein and in the
Warrant Agreement.
No Warrant may be exercised after the close of business on May 17, 2005
(the "Termination Date"). To the extent not exercised prior to the close of
business on the Termination Date, all Warrants evidenced hereby shall be
null and void and shall no longer be exercisable.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and facsimile signatures of
its duly authorized officers.
Dated: FIRST BANK SYSTEM, INC.
By
-------------------------------------
Title:
By
-------------------------------------
Title:
Countersigned and Registered:
First Chicago Trust Company
of New York, as Warrant Agent
ATTEST:
By_______________________________
Authorized Signature
A-1
<PAGE>
Each Warrant evidenced by this Warrant Certificate is part of a duly
authorized issue of Warrants expiring May 17, 2005, to purchase one share
(subject to adjustment) of Common Stock, $1.25 par value, of the Company, and
is issued or to be issued pursuant to a Warrant Agreement dated as of October
2, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company
and First Chicago Trust Company of New York, as Warrant Agent (the "Warrant
Agent"), which Warrant Agreement is hereby incorporated by reference in and
made a part of this instrument and is hereby referred to for a description of
the rights, limitation of rights, obligations, duties and immunities
thereunder of the Warrant Agent, the Company and holders (the words "holders"
or "holder" meaning the registered holders or registered holder) of the
Warrants.
Warrants may be exercised to purchase Shares from the Company during the
period from the date on or after May 18, 1995, that Warrants are first issued
pursuant to the Warrant Agreement through the close of business on the
Termination Date (the "Exercise Period"), at the Exercise Price set forth on
the face hereof, subject to adjustment, as hereinafter referred to. The
holder of Warrants evidenced by this Warrant Certificate may exercise them by
surrendering the Warrant Certificate, with the form of election to purchase
set forth hereon properly completed and executed, together with payment of
the Exercise Price at the Warrant Agent Office. Payment of the aggregate
Exercise Price shall be made by certified or official bank check. In the
event that upon any exercise of Warrants evidenced hereby the number of
Warrants exercised shall be less than the total number of Warrants evidenced
hereby, there shall be issued to the holder hereof or the holder's assignee a
new Warrant Certificate evidencing the number of Warrants not exercised.
The Company has covenanted that if any of the Shares required to be
reserved for purposes of exercise of Warrants require, under any federal
securities law or applicable governing rule or regulation of any national
securities exchange, registration or approval of any governmental authority,
or listing on any such national securities exchange before the Shares may be
issued upon exercise, the Company will in good faith prior to the issuance of
the Shares endeavor to cause the Shares to be duly registered, approved or
listed on the relevant national securities exchange, as the case may be;
provided, however, that in no event shall such Shares be issued, and the
Company is authorized to suspend the exercise of all Warrants, for the period
during which such registration, approval or listing is required but not in
effect.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to
certain conditions, be adjusted. If the Exercise price is adjusted, the
Warrant Agreement provides that, at the election of the Company, either (a)
the number of Shares purchasable upon the exercise of each Warrant shall be
adjusted, or (b) each outstanding Warrant shall be adjusted to become a
different number of Warrants. In the latter event, the Company will cause to
be distributed to registered holders of Warrant Certificates either
Warrant Certificates representing the additional Warrants issuable pursuant
to the adjustment or substitute Warrant Certificates to replace all
outstanding Warrant Certificates.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates
with regard to which such fractional Warrants or fractional Shares would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value (as determined pursuant to the Warrant Agreement) of a
full Warrant or a full Share, as the case may be.
Warrant Certificates, when surrendered at the Warrant Agent Office by the
registered holder thereof in person or by legal representative by an attorney
duly authorized in writing, may be exchanged, in the manner and subject to
the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of
like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate for all
purposes, and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
The following abbreviations, when used in the Inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT-_______________________
(Cust)
TEN ENT -- as tenants by the Custodian________________________________
entireties (Minor)
JT TEN -- as joint tenants with under Uniform Gifts to Minors Act_________
right of survivorship (State)
and not as tenants
in common
COM PROP -- as community property
Additional abbreviations may also be used though not in the above list.
FORM OF ELECTION TO EXERCISE
(To be executed upon exercise of Warrant during the Exercise Period)
The undersigned hereby irrevocably elects to exercise the right, represented
by this Warrant Certificate, to purchase ____________________ Shares and
herewith tenders payment for such Shares in the amount of $ ____________________
in accordance with the terms hereof. The undersigned requests that a certificate
representing such Shares be registered in the name of ____________________,
whose address is __________________________________, and that such certificate
be delivered to ________________________________, whose address is
________________________________________.
If said number of Shares is less than all the Shares purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the balance
of the Shares be registered in the name of __________________________, whose
address is ________________________________________ .
Any cash payments to be paid in lieu of a fractional Share should be made to
________________________________________________, whose address is
________________________________________, and the check representing payment
thereof should be delivered to ___________________________, whose address is
________________________________________ .
Dated:____________ Taxpayer Identification or Social Security Number ________
____________________________________ ________________________________
(Name of holder of Warrant Certificate. Please print) Signature
Address:_______________________________________________________________________
Street City State Zip Code
Signature Guaranteed:___________________________________________________________
NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
FORM OF ASSIGNMENT
For value received,_________________________________________ hereby sells,
assigns and transfers unto______________________________________________________
(Please print name and address)
the within Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ________________
________________ attorney, to transfer said Warrant Certificate on the books of
the within-named Company, with full power of substitution in the premises.
Dated:________________ ________________________________________
Signature
Signature Guaranteed:__________________________________________________________
NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
A-2
<PAGE>
<TABLE>
<S> <C> <C>
CERTIFICATE NUMBER VOID AFTER 5:00 P.M., NEW YORK TIME, REGISTERED WARRANTS
ON MAY 17, 2005
FIRST BANK SYSTEM, INC.
W- WARRANTS TO PURCHASE SHARES OF COMMON STOCK
CUSIP 319279 12
THIS WARRANT CERTIFICATE CERTIFIES that 1
See Reverse
Side For
Additional
Provisions
</TABLE>
, or registered assigns, is the registered holder of the number of Warrants (the
"Warrants") indicated above expiring May 17, 2005 to purchase shares of Common
Stock, $1.25 par value, of First Bank System, Inc., a Delaware corporation (the
"Company"). This Warrant Certificate is issued under and in accordance with the
Warrant Agreement (the "Warrant Agreement") dated as of October 2, 1995, between
the Company and First Chicago Trust Company of New York, as Warrant Agent.
Each Warrant entitles the holder to purchase from the Company during the
period from the date on or after May 18, 1995, that Warrants are first issued
pursuant to the Warrant Agreement through May 17, 2005 (the "Exercise Period"),
one (or such other number as may be determined by adjustment pursuant to the
Warrant Agreement upon the occurrence of certain events) fully paid and
nonassessable share of Common Stock, $1.25 par value, of the Company (the
"Shares") at the initial exercise price of $40.50 per Share or at such other
price as determined by adjustment pursuant to the Warrant Agreement upon the
occurrence of certain events (the "Exercise Price") payable in lawful money of
the United States of America upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent in
Jersey City, New Jersey (the "Warrant Agent Office"), but only subject to the
conditions set forth herein and in the Warrant Agreement.
No Warrant may be exercised after the close of business on May 17, 2005 (the
"Termination Date"). To the extent not exercised prior to the close of business
on the Termination Date, all Warrants evidenced hereby shall be null and void
and shall no longer be exercisable.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and facsimile signatures of its
duly authorized officers.
DATED:
COUNTERSIGNED AND REGISTERED:
<TABLE>
<S> <C> <C> <C>
FIRST CHICAGO TRUST COMPANY OF NEW YORK, FIRST BANK SYSTEM, INC.
AS WARRANT AGENT
ATTEST:
By BY BY
AUTHORIZED TITLE: TITLE:
SIGNATURE
</TABLE>
<PAGE>
Each Warrant evidenced by this Warrant Certificate is part of a duly
authorized issue of Warrants expiring May 17, 2005, to purchase one share
(subject to adjustment) of Common Stock, $1.25 par value, of the Company, and is
issued or to be issued pursuant to a Warrant Agreement dated as of October 2,
1995 (the "Warrant Agreement"), duly executed and delivered by the Company and
First Chicago Trust Company of New York, as Warrant Agent (the "Warrant Agent"),
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and holders (the words "holders" or "holder" meaning
the registered holders or registered holder) of the Warrants.
Warrants may be exercised to purchase Shares from the Company during the
period from the date on or after May 18, 1995, that Warrants are first issued
pursuant to the Warrant Agreement through the close of business on the
Termination Date (the "Exercise Period"), at the Exercise Price set forth on the
face hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price at
the Warrant Agent Office. Payment of the aggregate Exercise Price shall be made
by certified or official bank check. In the event that upon any exercise of
Warrants evidenced hereby the number of Warrants exercised shall be less than
the total number of Warrants evidenced hereby, there shall be issued to the
holder hereof or the holder's assignee a new Warrant Certificate evidencing the
number of Warrants not exercised.
The Company has covenanted that if any of the Shares required to be reserved
for purposes of exercise of Warrants require, under any federal securities law
or applicable governing rule or regulation of any national securities exchange,
registration or approval of any governmental authority, or listing on any such
national securities exchange before the Shares may be issued upon exercise, the
Company will in good faith prior to the issuance of the Shares endeavor to cause
the Shares to be duly registered, approved or listed on the relevant national
securities exchange, as the case may be; provided, however, that in no event
shall such Shares be issued, and the Company is authorized to suspend the
exercise of all Warrants, for the period during which such registration,
approval or listing is required but not in effect.
The Warrant Agreement provides that, upon the occurrence of certain events,
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise price is adjusted, the Warrant
Agreement provides that, at the election of the Company, either (a) the number
of Shares purchasable upon the exercise of each Warrant shall be adjusted, or
(b) each outstanding Warrant shall be adjusted to become a different number of
Warrants. In the latter event, the Company will cause to be distributed to
registered holders of Warrant Certificates either Warrant Certificates
representing the additional Warrants issuable pursuant to the adjustment or
substitute Warrant Certificates to replace all outstanding Warrant Certificates.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value (as determined pursuant to the Warrant Agreement) of a full Warrant or a
full Share, as the case may be.
Warrant Certificates, when surrendered at the Warrant Agent Office by the
registered holder thereof in person or by legal representative by an attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder
hereof as the absolute owner of this Warrant Certificate for all purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C> <C>
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
COM PROP -- as community property
<CAPTION>
TEN COM
(Cust)
TEN ENT Custodian
JT TEN (Minor)
under Uniform Gifts to Minors Act
COM PROP (State)
<CAPTION>
UNIF GIFT MIN ACT--
</TABLE>
Additional abbreviations may also be used though not in the above list.
FORM OF ELECTION TO EXERCISE
(TO BE EXECUTED UPON EXERCISE OF WARRANT DURING THE EXERCISE PERIOD)
The undersigned hereby irrevocably elects to exercise the right, represented
by this Warrant Certificate, to purchase ____________________ Shares and
herewith tenders payment for such Shares in the amount of $ ____________________
in accordance with the terms hereof. The undersigned requests that a certificate
representing such Shares be registered in the name of ________________
________________ ________________ ________________ ________________ , whose
address is ____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ , and that such certificate be delivered to
________________ ________________ ________________ ________________
________________ , whose address is ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ .
If said number of Shares is less than all the Shares purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the balance
of the Shares be registered in the name of ________________ ________________
________________ ________________ ________________ , whose address is
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ .
Any cash payments to be paid in lieu of a fractional Share should be made to
________________ ________________ ________________ ________________
________________ , whose address is ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ , and the check representing payment
thereof should be delivered to ________________ ________________
________________ ________________ ________________ , whose address is
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ .
Taxpayer
Identification or
Dated:________________________________ Social
Security Number ________________________________
____________________________________ ____________________________________
(Name of holder of Warrant Signature
Certificate. Please print)
Address:________________________________________________________________________
Street City State Zip Code
Signature
Guaranteed:____________________________________________________________
NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
FORM OF ASSIGNMENT
For value received, ________________ ________________ ________________
________________ ________________ ________________ hereby sells, assigns and
transfers unto
________________________________________
(Please print name and address)
the within Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ________________
________________ ________________ ________________ ________________ attorney, to
transfer said Warrant Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Dated:________________ ________________________________________
Signature
Signature Guaranteed:________________ ________________ ________________
________________ ________________
NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
<PAGE>
[Letterhead of Dorsey & Whitney P.L.L.P.]
First Bank System, Inc.
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to First Bank System, Inc., a Delaware
corporation (the "Company"), in connection with a Registration Statement on
Form S-3 (the "Registration Statement") relating to the sale by the Company
from time to time of up to 41,000 shares of Common Stock, $1.25 par value, of
the Company (the "Shares") upon the exercise of warrants (collectively the
"Warrants") being issued by the Company pursuant to the settlement of a
class action lawsuit entitled PHILLIP DISMUKE, ET AL. V. EDINA REALTY, INC.
filed in Minnesota State Court, Hennepin County, Court File No. 92-8716.
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness
of all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or
otherwise) to execute, deliver and perform such agreements or instruments,
that such agreements or instruments have been duly authorized by all
requisite action (corporate or otherwise), executed and delivered by such
parties and that such agreements or instruments are the valid, binding and
enforceable obligations of such parties. As to questions of fact material to
our opinions, we have relied upon certificates of officers of the Company and
of public officials. We have also assumed that the Common Stock will be sold
for a price per share not less than the par value per share of the Common
Stock.
Based on the foregoing, we are of the opinion that the Shares initially
issuable upon exercise of the Warrants have been duly authorized and reserved
for issuance and, upon issuance, delivery and payment therefor as described
in the Registration Statement, will be validly issued, fully paid and
nonassessable.
<PAGE>
First Bank System, Inc.
October 10, 1995
Page 2
Our opinions expressed above are limited to the Delaware General
Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the heading
"Legal Matters" in the Prospectus constituting part of the Registration
Statement.
Dated: October 10, 1995
Very truly yours,
DTB
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 33-61667) and
related Prospectus of First Bank System, Inc. for the registration of 41,000
shares of its common stock and to the incorporation by reference therein of our
report dated January 24, 1995, with respect to the consolidated financial
statements of First Bank System, Inc. included in its Current Report on Form 8-K
dated March 3, 1995, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Minneapolis, Minnesota
October 5, 1995
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-------------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 1 to the Form S-3 Registration Statement of our
report dated August 28, 1995, on FirsTier Financial, Inc. and Subsidiaries,
included in First Bank System, Inc.'s Form 8-K/A filed August 30, 1995, and to
all references to our firm included in this Registration Statement.
Arthur Andersen LLP
Omaha, Nebraska
October 6, 1995
