<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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 OF INCORPORATION) (I.R.S EMPLOYER IDENTIFICATION NO.)
FIRST BANK PLACE MICHAEL J. O'ROURKE
601 SECOND AVENUE SOUTH FIRST BANK PLACE
MINNEAPOLIS, MINNESOTA 55402-4302 601 SECOND AVENUE SOUTH
(612) 973-1111 MINNEAPOLIS, MINNESOTA 55402-4302
(ADDRESS AND TELEPHONE NUMBER OF (612) 973-1111
REGISTRANT'S PRINCIPAL EXECUTIVE (ADDRESS AND TELEPHONE NUMBER
OFFICES) OF AGENT FOR SERVICE)
COPY TO:
LEE R. MITAU RANDAL K. QUARLES
DORSEY & WHITNEY P.L.L.P. DAVIS POLK & WARDWELL
2200 SOUTH SIXTH STREET 450 LEXINGTON AVENUE
MINNEAPOLIS, MINNESOTA 55402-4302 NEW YORK, N.Y. 10017
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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, 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 in connection with dividend or interest
reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities and
Warrants to Purchase
Debt Securities(2)..... $1,000,000,000(3) 100%(4) $1,000,000,000(4) $344,828
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</TABLE>
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(1) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(2) The Debt Securities to be offered hereunder or Debt Securities purchasable
upon exercise of Warrants to purchase Debt Securities offered hereunder
will consist of one or more series of Senior Notes or Subordinated Notes,
or both, as herein more fully described. Because the Warrants will provide
a right only to purchase the Debt Securities offered hereunder, no
additional registration fee is required.
(3) Or, in the case of Debt Securities issued at an original issue discount,
such greater principal amount as shall result in an aggregate offering
price of the amount set forth above or, in the case of Debt Securities
denominated in a currency other than U.S. dollars or in a composite
currency, such U.S. dollar amount as shall result from converting the
aggregate public offering price of such Debt Securities into U.S. dollars
at the spot exchange rate in effect on the date such Debt Securities are
initially offered to the public.
(4) Plus accrued interest, if any.
Pursuant to Rule 429, the Prospectus contained in this Registration Statement
also relates to and constitutes Post-Effective Amendment No. 1 to Registration
Statement No. 33-51407, most recently declared effective on February 15, 1994.
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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
$1,325,000,000
FIRST BANK SYSTEM, INC.
LOGO
DEBT SECURITIES
AND
WARRANTS TO PURCHASE DEBT SECURITIES
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First Bank System, Inc. ("FBS" or the "Company") may offer from time to time
its debt securities (the "Debt Securities") in an aggregate principal amount
not to exceed $1,325,000,000, or its equivalent (based on the applicable
exchange rate at the time of the offering) in such foreign currency or units of
two or more foreign currencies as may be designated by the Company at the time
of the offering, on terms to be determined at the time of sale. The Debt
Securities may be senior debt securities (the "Senior Notes") or subordinated
debt securities (the "Subordinated Notes"). The Company may also offer, alone
or with the Debt Securities, warrants to purchase Debt Securities ("Warrants"
and, together with the Debt Securities, the "Securities"). The specific
designation, aggregate principal amount, purchase price, maturity, any interest
rate or rates (which may be fixed or variable) and time of payment of any
interest, any redemption or extension terms and other specific terms of the
Debt Securities (including any Debt Securities purchasable upon exercise of
Warrants) and the principal amount of Debt Securities purchasable upon exercise
of each Warrant and the purchase price thereof, the date on or after which the
Warrants may be exercised, the expiration date and other specific terms of the
Warrants will be set forth in one or more supplements to this Prospectus (each
a "Prospectus Supplement"). As used herein, the term "Debt Securities" shall
include securities denominated in United States dollars or, if so specified in
the applicable Prospectus Supplement, in any other currency or currency units
or in amounts determined by reference to an index.
The Senior Notes, when issued, will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company. The Subordinated Notes, when
issued, will be subordinated as described herein under "Description of Debt
Securities--Subordination of Subordinated Notes."
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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 COM-
MISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The Securities may be sold to or through underwriters, dealers or agents for
public offering or directly to other purchasers pursuant to terms of offering
fixed at the time of sale. See "Plan of Distribution." Any underwriters,
dealers or agents participating in an offering of Securities will be named in
the accompanying Prospectus Supplement or Prospectus Supplements. Such
underwriters, dealers or agents may be deemed "underwriters" within the meaning
of the Securities Act of 1933.
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THE DATE OF THIS PROSPECTUS IS , 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information filed by
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 Seven World Trade Center, 13th floor, 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. 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 with the Commission a registration statement on Form S-
3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. 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.
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) Annual Report on Form 10-K for the year ended December 31, 1994;
(b) Current Report on Form 8-K filed March 3, 1995 (as amended by
Amendment No. 1 on Form 8-K/A filed March 7, 1995); and
(c) 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).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
date of this Prospectus and prior to the termination of the offering of the
Securities shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the respective dates of filing of such documents.
Any statement contained herein or in a document all or any portion 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 other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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, other than
certain exhibits to such documents for which the Company may impose a copying
charge. Requests for such copies should be directed to Ann E. Underbrink, First
Bank System, Inc., First Bank Place, 601 Second Avenue South, Minneapolis,
Minnesota 55402-4302, telephone number (612) 973-1111.
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$" or "dollars").
FIRST BANK SYSTEM, INC.
GENERAL
FBS is a regional bank holding company headquartered in Minneapolis,
Minnesota. FBS is comprised of 9 banks, 5 trust companies and several nonbank
subsidiaries with 225 offices primarily in Minnesota,
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<PAGE>
Colorado, Montana, North Dakota, South Dakota and Wisconsin. Through its
subsidiaries, FBS provides commercial and agricultural finance, consumer
banking, trust, capital markets, treasury management, investment management,
data processing, leasing, mortgage banking and brokerage services. At December
31, 1994, FBS and its consolidated subsidiaries had consolidated assets of
$26.2 billion, consolidated deposits of $18.8 billion and shareholders' equity
of $2.3 billion.
The subsidiary banks of FBS 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 $14.4 billion at December 31, 1994.
Effective January 24, 1995, the Company completed its merger with
Metropolitan Financial Corporation ("MFC"), a regional financial services
holding company headquartered in Minneapolis, Minnesota. At December 31, 1994,
MFC had $7.9 billion in assets, $5.5 billion in deposits and 211 offices
located principally in North Dakota, Minnesota, Nebraska, Iowa, Kansas, South
Dakota, Wisconsin and Wyoming. The merger with MFC was accounted for using the
pooling of interests method of accounting and, in accordance with the rules of
the Commission, the Company's financial statements have been restated for all
periods prior to the merger to include the accounts and operations of MFC.
These restated supplemental financial statements have been filed with the
Commission in the Company's Current Report on Form 8-K dated March 3, 1995 and
will become the Company's historical financial statements upon issuance of its
earnings release for the three months ended March 31, 1995. See "Incorporation
of Certain Documents by Reference." The historical financial information of FBS
as of December 31, 1994 set forth above does not include MFC.
FBS is a legal entity separate and distinct from its banking and non-banking
affiliates. The principal sources of FBS' income are dividends, interest and
fees from FBNA and the other banking and non-banking affiliates. The bank
subsidiaries of FBS, including FBNA (the "Banks"), are subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, FBS and certain other affiliates, and on investments
in stock or other securities thereof. Such restrictions prevent FBS and such
other affiliates from borrowing from the Banks unless the loans are secured by
various types of collateral. Further, such secured loans, other transactions
and investments by any of the Banks are generally limited in amount as to FBS
and as to each of such other affiliates to 10% of such Bank's capital and
surplus and as to FBS and all of such other affiliates to an aggregate of 20%
of such Bank's capital and surplus. In addition, payment of dividends to FBS by
the subsidiary banks is subject to ongoing review by banking regulators and is
subject to various statutory limitations and in certain circumstances requires
approval by banking regulatory authorities.
FBS 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 FBS,
see the FBS documents incorporated by reference herein as described under
"Incorporation of Certain Documents by Reference."
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be used for general
corporate purposes, including repayment of outstanding indebtedness of the
Company, investments in, or extension of credit to, the Company's subsidiaries
and possible acquisitions. Specific allocations of the proceeds to such
purposes may not have been made at the date of the applicable Prospectus
Supplement, although management of the Company will have determined that funds
should be borrowed at that time in anticipation of future funding requirements.
The precise amount and timing of the application of such proceeds will depend
upon the funding requirements of the Company and the availability and cost of
other funds. Pending such application, such net proceeds may be temporarily
invested or applied to the reduction of short-term indebtedness.
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<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of the
Company for the respective periods indicated. These ratios have not been
restated for the merger with MFC described above.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
------------------------
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding interest on deposits......................... 1.17 2.09 2.54 4.53 4.31
Including interest on deposits......................... 1.04 1.21 1.32 1.86 2.18
</TABLE>
For purposes of computing these ratios, earnings represent income before
income taxes and cumulative effect of changes in accounting principles and
fixed charges (excluding capitalized interest). Fixed charges, excluding
interest on deposits, include interest (other than on deposits but including
capitalized interest) and the portion deemed representative of the interest
factor of rents. Fixed charges, including interest on deposits, include all
interest (including capitalized interest) and the portion deemed representative
of the interest factor of rents.
DESCRIPTION OF DEBT SECURITIES
The Senior Notes will be issued under an Indenture dated as of October 1,
1991 (the "Senior Note Indenture") between the Company and Citibank, N.A., as
Trustee (the "Senior Note Trustee"), and the Subordinated Notes will be issued
under an Indenture dated as of October 1, 1991, as amended by a First
Supplemental Indenture dated as of April 1, 1993 (as so amended, the
"Subordinated Note Indenture" and, together with the Senior Note Indenture, the
"Indentures") between the Company and Citibank, N.A., as Trustee (the
"Subordinated Note Trustee"). Copies of the Indentures have been filed as
exhibits to the Registration Statement of which this Prospectus is a part. The
following brief summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the applicable Indenture. Certain
terms capitalized and not otherwise defined herein are defined in one or both
of the Indentures.
The Debt Securities may be issued from time to time in one or more series.
The terms of each series of Debt Securities will be established by or pursuant
to a resolution of the Board of Directors of the Company (a "Board Resolution")
and set forth or determined in the manner provided in an Officers' Certificate
or by a supplemental indenture. The particular terms of the Debt Securities
offered pursuant to any Prospectus Supplement or Prospectus Supplements will be
described in such Prospectus Supplement or Prospectus Supplements.
Because the Company is a holding company, its rights and the rights of its
creditors, including the holders of the Debt Securities offered hereby, to
participate in the assets of any subsidiary upon the latter's liquidation or
reorganization will be subject to the prior claims of such subsidiary's
creditors, except to the extent that the Company may itself be a creditor with
recognized claims against the subsidiary. Any capital loans by the Company to
any of the Banks would be subordinate in right of payment to deposits and to
certain other indebtedness of such Banks. Claims on the subsidiaries by
creditors other than the Company may include long-term and medium-term debt and
substantial obligations with respect to deposit liabilities, federal funds
purchased, securities sold under repurchase agreements and other short-term
borrowings.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt Securities
which may be issued thereunder nor the amount of other debt which may be issued
by the Company. The Debt Securities will be unsecured obligations of the
Company and those issued under the Senior Note Indenture will rank on a parity
with all other unsecured and unsubordinated indebtedness of the Company, while
those issued under the Subordinated Note Indenture will be subordinated as
hereinafter described under "Subordination of Subordinated Notes."
Unless otherwise indicated in the applicable Prospectus Supplement or
Prospectus Supplements, the Debt Securities of any series will be issued only
in fully registered form in denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000. (Section 302) Debt Securities
may be issuable in the form of one or more Global Securities, as described
below under "Global Securities." A Global Security
4
<PAGE>
will be issued in a denomination equal to the aggregate principal amount of
outstanding Debt Securities of the series represented by such Global Security.
The Debt Securities (other than those issued in the form of a Global Security)
are exchangeable or transferable without charge therefor, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith and require the holders to furnish
appropriate endorsements and transfer documents. (Section 305)
Debt Securities may be issued as Original Issue Discount Debt Securities to
be sold at a substantial discount below their principal amount. Special Federal
income tax and other considerations applicable thereto and special Federal tax
and other considerations applicable to any Debt Securities which are
denominated in a currency or currency unit other than United States dollars
will be described in the Prospectus Supplement or Prospectus Supplements
relating thereto.
Unless otherwise indicated in the applicable Prospectus Supplement or
Prospectus Supplements, principal of and any premium and interest on the Debt
Securities will be payable, and the transfer of the Debt Securities will be
registrable, at the principal corporate trust office of the applicable Trustee.
In addition, unless otherwise provided in the applicable Prospectus Supplement
or Prospectus Supplements, payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as it
appears on the Security Register. (Sections 301, 305, 1001 and 1002)
The applicable Prospectus Supplement or Prospectus Supplements will describe
the terms of the Debt Securities offered thereby, including the following: (1)
the title of the offered Debt Securities; (2) whether the offered Debt
Securities are Senior Notes or Subordinated Notes; (3) any limit on the
aggregate principal amount of the offered Debt Securities; (4) the price or
prices (expressed as a percentage of the aggregate principal amount thereof) at
which the offered Debt Securities will be issued; (5) the date or dates on
which the offered Debt Securities will mature and any rights of extension; (6)
the rate or rates, if any (which may be fixed or variable), per annum at which
the offered Debt Securities will bear interest, if any, or the formula pursuant
to which such rate or rates shall be determined, and the date from which any
such interest will accrue; (7) the dates on which any such interest on the
offered Debt Securities will be payable and the regular record dates therefor;
(8) any mandatory or optional sinking fund or analogous provisions; (9) the
period or periods, if any, within which and the price or prices at which the
offered Debt Securities may be redeemed, pursuant to any redemption provisions,
at the option of the Company or of the holder thereof and other detailed terms
of any such optional redemption provision; (10) the currency or currency units,
including European Currency Units ("ECUs") or other composite currencies, for
the payment of principal of and any premium and interest payable on the offered
Debt Securities, if other than United States dollars; (11) the place or places
where the principal of and any premium and interest on the offered Debt
Securities will be payable; (12) any other event or events of default
applicable with respect to the offered Debt Securities in addition to or in
lieu of those described under "Events of Default"; (13) the denominations in
which any offered Debt Securities will be issuable, if other than denominations
of $1,000 or any amount in excess thereof which is an integral multiple of
$1,000; (14) whether such Debt Securities are to be issued in whole or in part
in the form of one or more Global Securities and, if so, the identity of the
Depositary for such Global Security or Securities and the circumstances under
which any such Global Security may be exchanged for Securities registered in
the name of, and any transfer of such Global Security may be registered to, a
Person other than such Depositary or its nominee; and (15) any other terms of
the offered Debt Securities not inconsistent with the provisions of the
Indenture.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the form
of one or more Global Securities that will be deposited with, or on behalf of,
a Depositary identified in the applicable Prospectus Supplement or Prospectus
Supplements. Unless otherwise indicated in the applicable Prospectus Supplement
or Prospectus Supplements, Global Securities will be issued in registered form.
(Section 305) The specific terms of the depositary arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement or Prospectus Supplements.
5
<PAGE>
SUBORDINATION OF SUBORDINATED NOTES
The payment of the principal of and interest on the Subordinated Notes will,
to the extent set forth in the Subordinated Note Indenture, be subordinate in
right of payment to the prior payment in full of all Senior Indebtedness of the
Company. (Section 1301) In certain events of insolvency, the payment of the
principal of and interest on the Subordinated Notes will, to the extent set
forth in the Subordinated Note Indenture, also be effectively subordinated in
right of payment to the prior payment in full of all General Obligations. No
payment pursuant to the Subordinated Notes may be made and no Holder of the
Subordinated Notes shall be entitled to demand or receive any such payment
unless all amounts of principal of, premium, if any, and interest then due on
all Senior Indebtedness of the Company shall have been paid in full or duly
provided for and, at the time of such payment or immediately after giving
effect thereto, there shall not exist with respect to any such Senior
Indebtedness any event of default permitting the holders thereof to accelerate
the maturity thereof or any event which, with notice or lapse of time or both,
would become such an event of default. (Section 1302) Upon any payment or
distribution of the assets of the Company in connection with dissolution,
winding-up, liquidation or reorganization, the holders of Senior Indebtedness
of the Company will be entitled to receive payment in full of principal,
premium, if any, and interest in accordance with the terms of such Senior
Indebtedness before any payment is made on the Subordinated Notes. (Section
1303) If upon any such payment or distribution of assets to creditors, there
remains, after giving effect to such subordination provisions in favor of the
holders of Senior Indebtedness, any amount of cash, property or securities
available for payment or distribution in respect of Subordinated Notes (as
defined in the Subordinated Note Indenture, "Excess Proceeds") and if, at such
time, any creditors in respect of General Obligations have not received payment
in full of all amounts due or to become due on or in respect of such General
Obligations, then such Excess Proceeds shall first be applied to pay or provide
for the payment in full of such General Obligations before any payment or
distribution may be made in respect of the Subordinated Notes. (Section 1314)
"Senior Indebtedness" of the Company is defined in the Subordinated Note
Indenture to mean the principal of, premium, if any, and interest on (1) all
indebtedness of the Company for money borrowed, whether outstanding on the date
of execution of the Subordinated Note Indenture or thereafter created, assumed
or incurred (including, without limitation, any Senior Notes issued pursuant to
the Senior Note Indenture), except (a) such indebtedness as is by its terms
expressly stated to rank junior in the right of payment to the Subordinated
Notes or to rank pari passu with the Subordinated Notes and (b) the Company's
Subordinated Floating Rate Notes Due November 2010 and its Floating Rate
Subordinated Capital Notes Due 1996, and (2) any deferrals, renewals or
extensions of any such Senior Indebtedness. "General Obligations" of the
Company are defined in the Subordinated Note Indenture to mean all obligations
of the Company to make payment on account of claims of general creditors, other
than (1) obligations on account of Senior Indebtedness and (2) obligations on
account of the Subordinated Notes and indebtedness of the Company for money
borrowed ranking pari passu with or subordinate to the Subordinated Notes;
provided, however, that if the Board of Governors of the Federal Reserve System
(or other competent regulatory agency or authority) shall promulgate any rule
or issue any interpretation defining or describing the term "general creditor"
or "general creditors" for purposes of its criteria for the inclusion of
subordinated debt of a bank holding company in capital, the term "General
Obligations" shall mean obligations to "general creditors" as defined or
described in such rule or interpretation, as from time to time in effect, other
than obligations described in clauses (1) and (2) above. The term "claim" as
used in the foregoing definition has the meaning assigned thereto in Section
101(5) of the Bankruptcy Code of 1978, as amended to April 1, 1993. The term
"indebtedness of the Company for money borrowed" is defined to mean any
obligation of, or any obligation guaranteed by, the Company for the repayment
of money borrowed, whether or not evidenced by bonds, debentures, notes or
other written instruments, and any deferred obligation for the payment of the
purchase price of property or assets. (Section 101)
By reason of the subordination described above, in the event of the
bankruptcy, insolvency or reorganization of the Company, holders of Senior
Indebtedness of the Company may receive more, ratably, and Holders of the
Subordinated Notes may receive less, ratably, than creditors of the Company who
are not
6
<PAGE>
holders of Senior Indebtedness or of the Subordinated Notes. Such subordination
will not prevent the occurrence of any Event of Default in respect of the
Subordinated Notes. Unless otherwise specified in the applicable Prospectus
Supplement or Prospectus Supplements, the Subordinated Note Indenture does not
provide for any right of acceleration of the payment of principal of the
Subordinated Notes upon a default in the payment of principal or interest or in
the performance of any covenant or agreement in the Subordinated Notes or the
Subordinated Note Indenture. See "Events of Default" below.
The subordination provisions of the Subordinated Note Indenture described
herein are provided for the benefit of the holders of Senior Indebtedness and
are not intended for the benefit of creditors in respect of General
Obligations. The Company and the Subordinated Note Trustee may amend the
Subordinated Note Indenture to reduce or eliminate the rights of creditors in
respect of General Obligations without the consent of such creditors or the
Holders of the Subordinated Notes. Upon (1) the promulgation of any rule or
regulation or the issuance of any interpretation by the Board of Governors of
the Federal Reserve System (or other competent regulatory agency or authority)
that (a) permits the Company to include the Subordinated Notes in its capital
if they were subordinated in right of payment to Senior Indebtedness without
regard to any other obligations of the Company, (b) otherwise eliminates the
requirement that subordinated debt of a bank holding company must be
subordinated in right of payment to its "general creditors" in order to be
included in capital or (c) causes the Subordinated Notes to be excluded from
capital notwithstanding the subordination provisions described above, or (2)
any event that results in the Company no longer being subject to capital
requirements of bank regulatory authorities, the provisions of the Subordinated
Note Indenture providing for subordination of the Subordinated Notes in favor
of creditors in respect of General Obligations shall immediately and
automatically be terminated without further action by the Company or the
Subordinated Note Trustee. (Section 1315)
RESTRICTIVE COVENANTS
Subject to the provisions described under "Consolidation, Merger and Sale of
Assets," the Senior Note Indenture prohibits the issuance, sale or other
disposition of shares of or securities convertible into, or options, warrants
or rights to subscribe for or purchase shares of, Voting Stock of a Principal
Subsidiary Bank, the merger or consolidation of a Principal Subsidiary Bank
with or into any other corporation or the sale or other disposition of all or
substantially all of the assets of a Principal Subsidiary Bank if, after giving
effect to any such transaction and the issuance of the maximum number of shares
of Voting Stock issuable upon the conversion or exercise of all such
convertible securities, options, warrants or rights, the Company would own,
directly or indirectly, 80% or less of the shares of Voting Stock of such
Principal Subsidiary Bank or the successor bank in such merger or consolidation
or the bank which acquires such assets, as the case may be. (Section 1007)
In the Senior Note Indenture the Company covenants that it will not create,
assume, incur or suffer to exist any pledge, encumbrance or lien, as security
for indebtedness for borrowed money, upon any shares of, or securities
convertible into, or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of a Principal Subsidiary Bank owned by the Company,
directly or indirectly, without making effective provision whereby the Senior
Notes of all series shall be equally and ratably secured, if, treating such
pledge, encumbrance or lien as a transfer to the secured party, and after
giving effect to the issuance of the maximum number of shares of Voting Stock
issuable upon conversion or exercise of such convertible securities, options,
warrants or rights, the Company would own, directly or indirectly, 80% or less
of the shares of Voting Stock of such Principal Subsidiary Bank. (Section 1008)
The term "Principal Subsidiary Bank" is defined in the Indentures as FBNA and
any successor.
Except as may be otherwise specified in the applicable Prospectus Supplement,
the Subordinated Note Indenture does not contain either of the restrictive
covenants set forth above with respect to the Senior Note Indenture nor does it
contain any other provision which restricts the Company from incurring or
becoming
7
<PAGE>
liable with respect to any Senior Indebtedness or any General Obligations,
whether secured or unsecured, or from paying dividends or making other
distributions on its capital stock or purchasing or redeeming its capital stock
or from creating any liens on its property for any purpose.
Except as may be otherwise specified in the applicable Prospectus Supplement,
neither Indenture contains covenants specifically designed to protect Holders
in the event of a highly leveraged transaction involving the Company.
EVENTS OF DEFAULT
The following events are defined in the Senior Note Indenture as "Events of
Default" with respect to any series of Senior Notes, unless otherwise provided
with respect to such series: (1) failure to pay any interest on any Senior Note
of that series when due and payable, continued for 30 days; (2) failure to pay
principal of or any premium on any Senior Note of that series when due and
payable; (3) failure to deposit any sinking fund payment, when due, in respect
of any Senior Note of that series; (4) failure to perform any other covenant of
the Company in the Senior Note Indenture (other than a covenant included in the
Senior Note Indenture solely for the benefit of a series of Senior Notes other
than that series), continued for 60 days after written notice as provided in
the Senior Note Indenture; (5) the occurrence of an event of default under any
indenture or instrument under which the Company or a Principal Subsidiary Bank
has or shall hereafter have outstanding indebtedness for borrowed money in
excess of $5,000,000 which has become due and payable by its terms and has not
been paid or whose maturity has been accelerated and such payment default has
not been cured or such acceleration has not been annulled within 60 days after
written notice as provided in the Senior Note Indenture; (6) certain events in
bankruptcy, insolvency or reorganization involving the Company or a Principal
Subsidiary Bank; and (7) any other Event of Default provided with respect to
Senior Notes of that series. The only events defined in the Subordinated Note
Indenture as "Events of Default" with respect to any series of Subordinated
Notes, unless otherwise provided with respect to such series, are (1) certain
events in bankruptcy, insolvency or reorganization involving the Company; (2)
certain events involving the receivership, conservatorship or liquidation of a
Principal Subsidiary Bank; and (3) any other Event of Default provided with
respect to Subordinated Notes of that series. (Section 501)
If an Event of Default with respect to any series of Debt Securities
Outstanding under either Indenture occurs and is continuing, then either the
applicable Trustee or the Holders of at least 25% in aggregate principal amount
of the Outstanding Debt Securities of that series by notice as provided in the
applicable Indenture may declare the principal amount (or, if any of the Debt
Securities of that series are Original Issue Discount Debt Securities, such
lesser portion of the principal amount of such Debt Securities as may be
specified in the terms thereof) of all of the Debt Securities of that series to
be due and payable immediately. At any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree for payment of money has been obtained by the applicable
Trustee, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 502)
Each Indenture provides that, subject to the duty of the applicable Trustee
during default to act with the required standard of care, such Trustee will be
under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable indemnity. (Sections
601, 603) Subject to such provisions for the indemnification of the Trustee,
the Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Trustee, or exercising any trust or power conferred on such Trustee, with
respect to the Debt Securities of that series. (Section 512)
The Company is required to furnish to each Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
applicable Indenture and as to any default in such performance. (Section 704)
8
<PAGE>
MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the Company and
the applicable Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected by such modification or amendment; provided, however, that
no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (1) change the Stated Maturity
of the principal of, or any installment of principal of or interest on, any
Debt Security, (2) reduce the principal amount of, or premium or interest on,
any Debt Security, (3) change any obligation of the Company to pay additional
amounts, (4) reduce the amount of principal of an Original Issue Discount Debt
Security due and payable upon acceleration of the Maturity thereof, (5) change
the place of payment where or coin or currency in which the principal of, or
any premium or interest on, any Debt Security is payable, (6) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Debt Security, (7) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of the Holders of which is required
for modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the applicable Indenture or for waiver of certain
defaults, (8) modify the provisions of the Subordinated Note Indenture with
respect to the subordination of any Subordinated Notes in a manner adverse to
the Holders thereof, or (9) modify any of the above provisions. (Section 902)
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the applicable
Indenture. (Section 1009) The Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of each series may, on
behalf of the Holders of all Debt Securities of that series, waive any past
default under the applicable Indenture with respect to Debt Securities of that
series, except a default (1) in the payment of principal of, or any premium or
interest on, any Senior Notes, or (2) in respect of a covenant or provision of
the applicable Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected. (Section 513)
Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt Securities, (1)
the principal amount of an Original Issue Discount Debt Security that will be
deemed to be Outstanding will be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof to such date, and (2) the principal amount of a Debt
Security denominated in a foreign currency or currency unit that will be deemed
to be Outstanding will be the United States dollar equivalent, determined as of
the date of original issuance of such Debt Security, of the principal amount of
such Debt Security (or, in the case of an Original Issue Discount Debt
Security, the United States dollar equivalent, determined as of the date of
original issuance of such Debt Security, of the amount determined as provided
in (1) above). (Section 101)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under either Indenture, may consolidate or merge with or into,
or convey, transfer or lease its properties and assets substantially as an
entirety to, any Person which is a corporation, partnership or trust organized
and validly existing under the laws of any domestic jurisdiction, provided that
any successor Person assumes the Company's obligations on the Debt Securities
and under such Indenture, that after giving effect to the transaction no Event
of Default, and no event which, after notice or lapse of time, would become an
Event of Default, shall have occurred and be continuing under such Indenture
and that certain other conditions are met. (Section 801)
REGARDING CITIBANK, N.A.
The Company and certain of its subsidiaries maintain deposits with and
conduct other banking transactions with Citibank, N.A. in the ordinary course
of business.
9
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DESCRIPTION OF WARRANTS
The Company may issue, together with Debt Securities or separately, Warrants
for the purchase of Debt Securities. The Warrants are to be issued under
Warrant Agreements (each a "Warrant Agreement") to be entered into between the
Company and a bank or trust company, as Warrant Agent (the "Warrant Agent"),
all as shall be set forth in the Prospectus Supplement relating to Warrants
being offered thereby. A copy of the form of Warrant Agreement, including the
form of Warrant Certificates representing the Warrants (the "Warrant
Certificates"), reflecting the alternative provisions to be included in the
Warrant Agreements that will be entered into with respect to particular
offerings of Warrants, has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The following brief summaries of
certain provisions of the Warrant Agreement and the Warrant Certificates do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the applicable Warrant Agreement and
Warrant Certificates, respectively, including the definitions therein of
certain terms capitalized and not otherwise defined herein.
GENERAL
The applicable Prospectus Supplement or Prospectus Supplements will describe
the terms of the Warrants offered thereby, the Warrant Agreement relating to
such Warrants and the Warrant Certificates representing such Warrants,
including the following: (1) the designation, aggregate principal amount and
terms of the Debt Securities purchasable upon exercise of such Warrants and the
procedures and conditions relating to the exercise of such Warrants; (2) the
designation and terms of any related Debt Securities with which such Warrants
are issued and the number of such Warrants issued with each such Debt Security;
(3) the date, if any, on and after which such Warrants and the related Debt
Securities will be separately transferable; (4) the principal amount of Debt
Securities purchasable upon exercise of each Warrant and the price at which
such principal amount of Debt Securities may be purchased upon such exercise;
(5) the date on which the right to exercise such Warrants shall commence and
the date on which such right shall expire (the "Expiration Date"); (6) if the
Debt Securities purchasable upon exercise of such Warrants are Original Issue
Discount Debt Securities, a discussion of Federal income tax considerations
applicable thereto; and (7) whether the Warrant Certificates representing such
Warrants will be issued in registered or bearer form, and, if registered, where
they may be transferred and registered.
Warrant Certificates will be exchangeable for new Warrant Certificates of
different authorized denominations and Warrants may be exercised at the
corporate trust office of the Warrant Agent or any other office indicated in
the applicable Prospectus Supplement or Prospectus Supplements. Prior to the
exercise of their Warrants, holders of Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise and will not
be entitled to payments of principal of, and any premium or interest on, such
Debt Securities.
EXERCISE OF WARRANTS
Each Warrant will entitle the Holder to purchase such principal amount of
Debt Securities at such exercise price as shall in each case be set forth in,
or be determinable as set forth in, the applicable Prospectus Supplement or
Prospectus Supplements. Warrants may be exercised during the period or periods
set forth in the applicable Prospectus Supplement or Prospectus Supplements.
After the close of business on the Expiration Date, unexercised Warrants will
become void.
Warrants may be exercised as set forth in the applicable Prospectus
Supplement or Prospectus Supplements. Upon receipt of payment of the exercise
price and the properly completed and duly executed purchase form set forth in
the Warrant Certificate at the corporate trust office of the Warrant Agent or
any other office indicated in the applicable Prospectus Supplement or
Prospectus Supplements, the Company will, as soon as practicable, forward the
Debt Securities purchasable upon such exercise to the person entitled thereto.
If less than all of the Warrants represented by such Warrant Certificates are
exercised, a new Warrant Certificate will be issued for the remaining amount of
Warrants.
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FOREIGN CURRENCY RISKS
GENERAL
Debt Securities of a series may be denominated in and the principal of, and
any interest or premium on, such Debt Securities may be payable in such foreign
currencies or currency units as may be designated by the Company at the time of
offering (the "Foreign Currency Securities").
THIS PROSPECTUS DOES NOT DESCRIBE ALL THE RISKS OF AN INVESTMENT IN FOREIGN
CURRENCY SECURITIES THAT RESULT FROM SUCH SECURITIES BEING DENOMINATED OR
PAYABLE IN A FOREIGN CURRENCY OR CURRENCY UNIT, EITHER AS SUCH RISKS EXIST AT
THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME.
PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS
TO THE RISKS ENTAILED BY AN INVESTMENT IN FOREIGN CURRENCY SECURITIES. FOREIGN
CURRENCY SECURITIES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE
UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS.
The information set forth below is by necessity incomplete. Prospective
purchasers of Foreign Currency Securities should consult their own financial
and legal advisors with respect to any matters that may affect the purchase or
holding of a Foreign Currency Security or the receipt of payments of principal
of and any premium and interest on a Foreign Currency Security in a Specified
Currency (as defined below).
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Foreign Currency Securities entails significant risks that
are not associated with a similar investment in a security denominated in
United States dollars. Such risks include, without limitation, the possibility
of significant changes in the rate of exchange between the United States dollar
and the currency or currency unit designated in the applicable Prospectus
Supplement (the "Specified Currency") and the possibility of the imposition or
modification of foreign exchange controls by either the United States or
foreign governments. Such risks generally depend on economic and political
events over which the Company has no control. In recent years, rates of
exchange between the United States dollar and certain foreign currencies have
been highly volatile and such volatility may be expected in the future.
Fluctuations in any particular exchange rate that have occurred in the past are
not necessarily indicative, however, of fluctuations in the rate that may occur
during the term of any Foreign Currency Security. Depreciation of the Specified
Currency applicable to a Foreign Currency Security against the United States
dollar would result in a decrease in the United States dollar-equivalent yield
of such Debt Security (or the Debt Security purchasable upon exercise of any
Warrant), in the United States dollar-equivalent value of the principal
repayable at maturity of such Debt Security (or the Debt Security purchasable
upon exercise of such Warrant) and, generally, in the United States dollar-
equivalent market value of such Security.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Foreign Currency
Security's maturity (or the maturity of the Debt Security issuable upon
exercise of a Warrant). Even if there are no exchange controls, it is possible
that the Specified Currency for any particular Foreign Currency Security would
not be available at such Debt Security's maturity (or the maturity of the Debt
Security issuable upon exercise of a Warrant) due to other circumstances beyond
the control of the Company.
JUDGMENTS
If an action based on Foreign Currency Securities were commenced in a court
of the United States, it is likely that such court would grant judgment
relating to such Securities only in United States dollars. It is not clear,
however, whether, in granting such judgment, the rate of conversion into United
States dollars would be determined with reference to the date of default, the
date judgment is rendered or some other date. Under
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<PAGE>
current New York law, a state court in the State of New York rendering a
judgment on a Foreign Currency Security would be required to render such
judgment in the Specified Currency in which such Foreign Currency Security is
denominated, and such judgment would be converted into United States dollars at
the exchange rate prevailing on the date of entry of the judgment. Holders of
Foreign Currency Securities would bear the risk of exchange rate fluctuations
between the time the amount of the judgment is calculated and the time the
applicable Trustee converts United States dollars to the Specified Currency for
payment of the judgment.
LIMITED FACILITIES FOR CONVERSION
Currently, there are limited facilities in the United States for conversion
of U.S. dollars into foreign currencies, and vice versa. In addition, banks
generally do not offer non-U.S. dollar denominated checking or savings account
facilities in the United States. Accordingly, payments on Foreign Currency
Securities will, unless otherwise specified in the applicable Prospectus
Supplement or Prospectus Supplements, be made from an account with a bank
located in the country issuing the Specified Currency (or, with respect to
Foreign Currency Securities denominated in ECUs, Brussels).
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents. The applicable Prospectus Supplement or Prospectus Supplements
will set forth the terms of the offering of the Securities, including the name
or names of any agents, underwriters or dealers, the purchase price of the
Securities and the proceeds to be received by the Company from such sale, any
underwriting discounts and other items constituting underwriters' compensation
and any discounts and commissions allowed or reallowed or paid to dealers or
agents. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers or agents may be changed from time to
time.
In connection with the sale of Securities, underwriters or agents may be
deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Securities for whom they may act as agent. Underwriters may sell
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Underwriters, dealers and agents participating in the distribution of
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Securities
may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended. Such underwriters, dealers and agents may
be entitled under agreements which may be entered into by the Company to
indemnification by the Company against and contribution toward certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
The Securities may be distributed in one or more transactions from time to
time at a fixed price or prices, which may be changed, or from time to time at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Company also may offer
and sell the Securities in exchange for one or more of its outstanding issues
of debt or convertible debt securities.
If so indicated in the applicable Prospectus Supplement or Prospectus
Supplements, the Company will authorize dealers or other persons acting as the
Company's agents to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
applicable Prospectus Supplement or Prospectus Supplements pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on the date
or dates stated in the applicable Prospectus Supplement or Prospectus
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<PAGE>
Supplements. There may be limitations on the minimum amount which may be
purchased pursuant to a Contract or on the aggregate amount of Securities which
may be sold pursuant to Contracts. Any such limitations will be set forth in
the applicable Prospectus Supplement or Prospectus Supplements. Institutions
with whom Contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions, and other institutions, but will in
all cases be subject to the approval of the Company. The obligations of any
purchaser under any Contract will not be subject to any conditions except (1)
the purchase by an institution of the Securities covered by its Contract shall
not at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which such institution is subject and (2) if Securities
are being sold to underwriters, the Company shall have sold to such
underwriters the total principal amount of such Securities less the principal
amount thereof covered by Contracts.
The Securities will be a new issue of securities with no established trading
market. Any underwriters or agents to or through whom Securities are sold by
the Company for public offering and sale may make a market in such Securities,
but such underwriters and agents will not be obligated to do so and may
discontinue any market-making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Certain of the underwriters, dealers and/or agents and their associates may
be customers of, engage in transactions with and perform services for the
Company, including its subsidiaries, in the ordinary course of business.
EXPERTS
The consolidated financial statements of the Company appearing in FBS' Annual
Report on Form 10-K for the year ended December 31, 1994 and the supplemental
consolidated financial statements of the Company appearing in FBS' Current
Report on Form 8-K filed March 3, 1995 for the year ended December 31, 1994
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their reports thereon included therein and incorporated herein by reference.
Such consolidated financial statements and supplemental consolidated financial
statements are incorporated herein by reference in reliance upon such reports
given upon the authority of such firm as experts in accounting and auditing.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by Dorsey
& Whitney P.L.L.P., 220 South Sixth Street, Minneapolis, Minnesota 55402 and
for any underwriters or agents by Davis Polk & Wardwell, 450 Lexington Avenue,
New York, New York 10017. Davis Polk & Wardwell will rely as to all matters
governed by Minnesota law on the opinions of Dorsey & Whitney P.L.L.P. and
Michael J. O'Rourke, General Counsel of the Company, and Dorsey & Whitney
P.L.L.P. will rely as to all matters governed by New York law on the opinion of
Davis Polk & Wardwell. 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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NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFER-
ENCE IN THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT OR PROSPECTUS
SUPPLEMENTS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER OR
AGENT. THIS PROSPECTUS AND THE APPLICABLE PROSPECTUS SUPPLEMENT OR PROSPECTUS
SUPPLEMENTS DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY AND THEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. THE DE-
LIVERY OF THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT OR PROSPECTUS
SUPPLEMENTS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE DATES.
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TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
First Bank System, Inc..................................................... 2
Use of Proceeds............................................................ 3
Ratios of Earnings to Fixed Charges........................................ 4
Description of Debt Securities............................................. 4
Description of Warrants.................................................... 10
Foreign Currency Risks..................................................... 11
Plan of Distribution....................................................... 12
Experts.................................................................... 13
Validity of Securities..................................................... 13
</TABLE>
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$1,325,000,000
FIRST BANK SYSTEM, INC.
LOGO
DEBT SECURITIES
AND
WARRANTS TO PURCHASE
DEBT SECURITIES
---------------
PROSPECTUS
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, 1995
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<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee......................................... $ 344,828
Accountants' fees and expenses............................... 20,000
Attorneys' fees and expenses................................. 75,000
Printing and engraving expenses.............................. 75,000
Fees and expenses of trustees................................ 100,000
State qualification fees and expenses........................ 35,000
Rating agencies' fees........................................ 450,000
Miscellaneous................................................ 50,172
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Total.................................................... $1,150,000*
==========
</TABLE>
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* 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
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
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 provision making directors personally liable for
unlawful dividends or unlawful stock repurchases or redemptions or (iv) for any
transaction for which the directors 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 to substantially the same
extent permitted by Delaware law.
The Company maintains a standard policy of officers' and directors'
insurance.
In the Underwriting Agreement, a form of which is filed as Exhibit 1.1
hereto, and in the Distribution Agreement, a form of which is filed as Exhibit
1.2 hereto, the Underwriters and the Agents, respectively, will agree to
indemnify, under certain conditions, the Company, its directors, certain of its
officers and persons who control the Company within the meaning of the
Securities Act of 1933, as amended (the "Act") against certain liabilities.
ITEM 16. LIST OF EXHIBITS
<TABLE>
<CAPTION>
<C> <S> <C>
1.1 Proposed form of Underwriting Agreement*
1.2 Proposed form of Distribution Agreement*
4.1 Indenture dated as of October 1, 1991 between the Company
and Citibank, N.A., as Senior Note Trustee (incorporated
by reference to Exhibit 4.1 to the Company's Current Re-
port on Form 8-K dated November 12, 1991)
4.2 Indenture dated as of October 1, 1991 between the Company
an Citibank, N.A., as Subordinated Note Trustee, as
amended by a First Supplemental Indenture dated as of
April 1, 1993 (incorporated by reference to Exhibit 4.2 to
the Company's Current Report on Form 8-K dated November
12, 1991 and Exhibit 4.1 to the Company's Current Report
on Form 8-K dated April 26, 1993)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
4.3 Form of Senior Note (included as part of Exhibit 4.1)
4.4 Form of Subordinated Note (included as part of Exhibit
4.2)
4.5 Proposed form of Warrant Agreement (incorporated by refer-
ence to Exhibit 4.5 to the Company's Registration State-
ment on Form S-3 (File No. 33-39303))
4.6 Proposed form of Warrant Certificate (included as part of
Exhibit 4.5)
5.1 Opinion and consent of Dorsey & Whitney P.L.L.P.*
12.1 Computation of ratio of earnings to fixed charges*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Dorsey & Whitney P.L.L.P. (included as part of
Exhibit 5.1)
24.1 Power of attorney from directors of the Company signing by
an attorney-in-fact*
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Citibank, N.A.*
</TABLE>
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* Filed herewith.
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;
(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 (1)(i) and (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
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.
II-2
<PAGE>
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-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING A 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 APRIL 7,
1995.
First Bank System, Inc.
/s/ John F. Grundhofer
By: _________________________________
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 PERSON IN THE
CAPACITIES AND ON APRIL 7, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ John F. Grundhofer Chairman, President, Chief Executive
___________________________________________ Officer and Director (principal executive
John F. Grundhofer officer)
/s/ Richard A. Zona Vice Chairman and Chief Financial Officer
___________________________________________ (principal financial officer)
Richard A. Zona
/s/ David J. Parrin Senior Vice President and Controller
___________________________________________ (principal accounting officer)
David J. Parrin
Coleman Bloomfield* Director
___________________________________________
Coleman Bloomfield,
Roger L. Hale* Director
___________________________________________
Roger L. Hale
Delbert W. Johnson* Director
___________________________________________
Delbert W. Johnson
Norman M. Jones* Director
___________________________________________
Norman M. Jones
John H. Kareken* Director
___________________________________________
John H. Kareken
Director
___________________________________________
Richard L. Knowlton
Director
___________________________________________
Kenneth A. Macke
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
Marilyn C. Nelson* Director
___________________________________________
Marilyn C. Nelson
Will F. Nicholson, Jr.* Director
___________________________________________
Will F. Nicholson, Jr.
Nicholas R. Petry* Director
___________________________________________
Nicholas R. Petry
Edward J. Phillips* Director
___________________________________________
Edward J. Phillips
James J. Renier* Director
___________________________________________
James J. Renier
S. Walter Richey* Director
___________________________________________
S. Walter Richey
Richard L. Robinson* Director
___________________________________________
Richard L. Robinson
Richard L. Schall* Director
___________________________________________
Richard L. Schall
Lyle E. Schroeder* Director
___________________________________________
Lyle E. Schroeder
</TABLE>
/s/ David J. Parrin
*By: ________________________________
David J. Parrin
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Number Description Page
- -------------- ----------- ----
1.1 Proposed form of Underwriting Agreement*
1.2 Proposed form of Distribution Agreement*
4.1 Indenture dated as of October 1, 1991 between the Company
and Citibank, N.A., as Senior Note Trustee (incorporated
by reference to Exhibit 4.1 to the Company's Current Re-
port on Form 8-K dated November 12, 1991)
4.2 Indenture dated as of October 1, 1991 between the Company
an Citibank, N.A., as Subordinated Note Trustee, as
amended by a First Supplemental Indenture dated as of
April 1, 1993 (incorporated by reference to Exhibit 4.2 to
the Company's Current Report on Form 8-K dated November
12, 1991 and Exhibit 4.1 to the Company's Current Report
on Form 8-K dated April 26, 1993)
4.3 Form of Senior Note (included as part of Exhibit 4.1)
4.4 Form of Subordinated Note (included as part of Exhibit
4.2)
4.5 Proposed form of Warrant Agreement (incorporated by refer-
ence to Exhibit 4.5 to the Company's Registration State-
ment on Form S-3 (File No. 33-39303))
4.6 Proposed form of Warrant Certificate (included as part of
Exhibit 4.5)
5.1 Opinion and consent of Dorsey & Whitney P.L.L.P.*
12.1 Computation of ratio of earnings to fixed charges*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Dorsey & Whitney P.L.L.P. (included as part of
Exhibit 5.1)
24.1 Power of attorney from directors of the Company signing by
an attorney-in-fact*
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Citibank, N.A.*
- --------
* Filed herewith.
<PAGE>
EXHIBIT 1.1
UNDERWRITING AGREEMENT
__________, 19__
First Bank System, Inc.
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Dear Sirs:
We (the "Representatives") understand that First Bank System, Inc., a
Delaware corporation registered as a bank holding company under the Bank Holding
Company Act (the "Company"), proposes to issue and sell $________ aggregate
principal amount of ______________ (the "Offered Securities"), to be issued
pursuant to the provisions of the [Indenture dated as of October 1, 1991,
between the Company and Citibank, N.A., as Trustee] [Indenture dated as of
October 1, 1991, between the Company and Citibank, N.A., as Trustee, as amended
by a First Supplemental Indenture dated as of April 1, 1993] (the "Indenture")
[with Warrant Certificates (the "Offered Warrants"), to be issued pursuant to
the provisions of the Warrant Agreement, dated as of ______________, 19______,
between the Company and ________________________, as Warrant Agent, evidencing
the right to purchase up to $_____________________ aggregate principal amount of
___________________ (the "Warrant Debt Securities") to be issued pursuant to the
provisions of the Indenture]. Subject to the terms and conditions set forth
herein or incorporated by reference herein, the Company hereby agrees to sell
and the underwriters named on Schedule A hereto (such underwriters being herein
called the "Underwriters") agree to purchase, severally and not jointly, the
principal amounts of such Offered Securities set forth opposite their names on
Schedule A at ________% of their principal amount [and accrued interest from
________________, 19______ to the date of payment and delivery] [and the Offered
Warrants set forth opposite their names on Schedule A at a price of
$______________ per Offered Warrant].
The Underwriters will pay for such Offered Securities [and Offered
Warrants] upon delivery thereof at the offices of [name], [address] at 10:00
A.M. (local time) on __________, 19__ or at such other time, not later than
__________, 19__ as shall be designated by the Representatives.
The Offered Securities [and Offered Warrants] shall have the terms set
forth in the Company's Prospectus Supplement, dated __________, 19__ and the
Prospectus dated __________, 19__ (the "Basic Prospectus") [,] [.] particularly
as follows:
<PAGE>
[Maturity: __________, 19__
Interest Rate: ____%
Redemption Provisions: Redeemable at the option of the Company, as a
whole or in part, at any time after __________, 19__ at ____% to and including
__________, 19__, at deceasing prices thereafter to and including __________,
19__ and thereafter at 100%.
Interest Payment Dates:
Other terms:]
[Exercise Price:
Exercise Dates:
Transferability Provisions:
Other terms:]
[Describe, if applicable, opinion of tax counsel to the Company to be
delivered pursuant to Section V(b)]
[If securities are to be sold pursuant to delayed delivery contracts,
describe delivery dates and underwriters' fee and include those securities
within the definition of "Offered Securities" or "Offered Warrants", as
applicable.]
All the provisions contained in the document entitled First Bank System,
Inc. Underwriting Agreement Standard Provisions (Debt/Warrants) (June 1992),
included as Exhibit 1.1 to Registration Statement No. 33-________ filed by the
Company under the Securities Act of 1933, as amended (the "Standard
Provisions"), are herein incorporated by reference in their entirety and shall
be deemed to be a part of this Agreement to the same extent as if such Standard
Provisions had been set forth in full herein.
-2-
<PAGE>
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below. This Agreement may be signed in
any number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Very truly yours,
[Names of Representative[s]]
[On behalf of
[themselves-itself and as
Representative[s] of the
Several] [As] Underwriter[s]
[By__________________________________]
By____________________________________
[Title]
Accepted: __________, 19__
FIRST BANK SYSTEM, INC.
By_________________________
Name:
Title:
-3-
<PAGE>
FIRST BANK SYSTEM, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT/WARRANTS)
(December 1993)
From time to time First Bank System, Inc. a Delaware corporation
registered as a banking holding company under the Bank Holding Company Act (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to one or more underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement". Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus specifically
relating to the Securities, and has filed with, or mailed for filing to, the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 of the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The term
Registration Statement means the registration statement as amended to the date
of the Underwriting Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the prospectus supplement in the form first used to
confirm sales of the Offered Securities. The term preliminary prospectus means
a preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term "Securities" means the Offered Securities and/or the Offered Warrants
and Warrant Debt Securities described in the Underwriting Agreement of which
this Agreement is a part.
The term "Underwriters' Securities" means the Offered Securities and/or
Offered Warrants to be purchased by the Underwriters herein. The term "Contract
Securities" means the Offered Securities and/or Offered Warrants, if any, to be
purchased pursuant to the delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities and/or
Offered Warrants, if any, pursuant to delayed delivery contracts, the Company
hereby authorizes the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Schedule I attached hereto ("Delayed
<PAGE>
Delivery Contracts") but with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Representatives
as compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities and/or Offered Warrants, if any, to be purchased by the
several Underwriters, and the aggregate principal amount of Offered Securities
(or number of Offered Warrants, if applicable) to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Offered Securities (or number of Offered Warrants, if applicable) set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Representatives determine that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Representatives that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Representatives' judgment is advisable. The Underwriters will offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus.
IV.
Payment for Underwriters' Securities shall be made by wire transfer of
immediately available funds, or such other funds as specified in the
Underwriting Agreement, at the time and place set forth in the Underwriting
Agreement, upon delivery to the Representatives for the respective accounts of
the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Representatives shall request in writing
not less than three full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Underwriters'
Securities are herein referred to as the Closing Date. The Underwriters'
Securities will be made available for checking and packaging at least twenty-
four hours prior to the time for delivery.
-2-
<PAGE>
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) The Representatives shall have received on the Closing Date a
certificate of the Chairman, Vice Chairman, President or a Vice President of
the Company, dated the Closing Date and to the effect (i) that there has been
no downgrading, nor any notice given of any potential or intended downgrading,
or of a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
nationally recognized statistical rating organization, (ii) that the
representations and warranties of the Company contained in Section VII are
true and correct with the same force and effect as though expressly made at
and as of the date of such certificate, (iii) that the Company has complied
with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the date of such certificate, and (iv) that no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened
by the Commission.
(b) The Representatives shall have received on the Closing Date an opinion
of Dorsey & Whitney P.L.L.P., counsel to the Company, dated the Closing Date,
to the effect set forth in Exhibit A, and, if applicable, an opinion of tax
counsel to the Company, dated the Closing Date, covering such matters as may
be mutually agreed upon and set forth in the Underwriting Agreement. In
rendering such opinion to the effect set forth in Exhibit A, such counsel may
rely as to matters of New York law upon the opinion of Davis Polk & Wardwell
being delivered pursuant to subparagraph (d).
(c) The Representatives shall have received on the Closing Date an opinion
of the General Counsel of the Company, dated the Closing Date, to the effect
set forth in Exhibit B.
(d) The Representatives shall have received on the Closing Date an opinion
of counsel to the Underwriters, dated the Closing Date, relating to the
validity of the Indenture, the Securities and the Warrant Agreement, if any,
the Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request. In rendering such opinion, such
counsel may rely as to matters of Minnesota law upon the opinions of Dorsey &
Whitney and the General Counsel of the Company being delivered pursuant to
subsections (b) and (c), respectively.
(e) The Representatives shall have received on or prior to the date of
this Agreement and the Closing Date letters, each dated the date of delivery
thereof and in form and substance satisfactory to the Representatives, from
Ernst & Young LLP, to the effect set forth in Exhibit C.
-3-
<PAGE>
(f) At the Closing Date the counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale
of the Offered Securities as herein contemplated shall be satisfactory in form
and substance to the Underwriters and their counsel.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the earnings,
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
other than as set forth in the Prospectus, and (ii) there shall not have
occurred any outbreak or escalation of hostilities or any material change in
financial markets or other calamity or crisis the effect of which is such as
to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Securities on the terms and in the manner contemplated by the Prospectus, and
(iii) trading in securities of the Company shall not have been suspended by
the Commission or a national securities exchange, nor shall trading generally
on either the American Stock Exchange or the New York Stock Exchange have been
suspended, or minimum or maximum prices for trading of securities generally
have been fixed, or maximum ranges for prices for securities (other than
trading limits currently in effect and other similar trading limits) have been
required, or trading otherwise materially limited, by either of said exchanges
or by order of the Commission or any other governmental authority, nor shall a
banking moratorium have been declared by either Federal or New York
authorities nor shall a banking moratorium have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Securities are denominated or payable, and (iv) the
rating assigned by any nationally recognized statistical rating organization
to any debt securities of the Company shall not have been downgraded nor shall
any notice have been given by any such nationally recognized statistical
rating organization of any intended or potential downgrading or any review for
possible change that does not indicate the direction of the possible change in
such rating, and (v) the Prospectus, at the time it was required to be
delivered to a purchaser of the Offered Securities, shall not have contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
-4-
<PAGE>
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company hereby covenants:
(a) The Company will give the Representatives notice of its intention to
file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether by the filing of documents pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Securities Act or otherwise. The Company will furnish the Representatives
with copies of any such amendment or supplement or other documents, other than
documents filed pursuant to the Exchange Act, proposed to be filed a
reasonable time in advance of filing, and will furnish the Representatives
with copies of documents filed pursuant to the Exchange Act promptly upon the
filing thereof;
(b) The Company will notify the Representatives immediately (i) of the
filing and effectiveness of any amendment to the Registration Statement, (ii)
of the mailing or the delivery to the Commission for filing of any supplement
to the Prospectus or any document to be filed pursuant to the Exchange Act
which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threat of initiation of any proceedings for
that purpose, or (vi) of the suspension of qualification of the Offered
Securities for offering or sale in any jurisdiction or the initiation or
threat of initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop order or
suspension of qualification and, if any stop order or suspension of
qualification is issued, to obtain the lifting thereof at the earliest
possible moment;
(c) If, during the period after the date of the first public offering of
the Offered Securities and/or Offered Warrants, if any, when the Prospectus is
required by law to be delivered, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of the counsel for
the Underwriters or counsel for the Company, to further amend or supplement
the Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the Prospectus
in order to comply with the requirements of the Securities Act or the rules
and regulations issued by the Commission thereunder immediate notice shall be
-5-
<PAGE>
given, and confirmed in writing, to the Representatives, and the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the Exchange Act, the Securities Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement comply with such requirements;
(d) The Company will make generally available to its security holders (as
defined in Rule 158) as soon as practicable, but not later than 45 days after
the close of each of the first three fiscal quarters of each fiscal year and
90 days after the close of each fiscal year, earnings statements (in form
complying with the provisions of Rule 158 under the Securities Act) covering a
twelve month period beginning not later than the first day of the fiscal
quarter next following the effective date of the Registration Statement (as
defined in Rule 158) with respect to each sale of Securities;
(e) The Company will deliver to the Representatives as many signed and
conformed copies of the registration statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus)
as the Representatives may reasonably request. The Company will furnish to
the Representatives as many copies of the Prospectus (as amended or
supplemented) as the Representatives shall reasonably request so long as the
Underwriters are required to deliver a Prospectus in connection with the
offering or sale of the Offered Securities and/or Offered Warrants;
(f) The Company will endeavor, in cooperation with the Representatives, to
qualify the Offered Securities and/or Offered Warrants for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Offered Securities and/or Offered Warrants; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided;
(g) The Company, during the period when the Prospectus is required to be
delivered under the Securities Act, will file promptly all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act;
(h) During the period beginning on the date of the Underwriting Agreement
and continuing to and including the business day following the Closing Date,
the Company will not, without the prior consent of the Representatives, offer
or sell in the United States, or enter into any agreement
-6-
<PAGE>
to sell in the United States, any debt securities of the Company with terms
substantially similar to the Securities.
VII.
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Registration Statement has been filed with the Commission in the
form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to the Registration Statement, but including all documents
incorporated by reference in the Basic Prospectus, to the Representatives for
each of the other Underwriters and the Registration Statement in such form has
been declared effective by the Commission and no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission, complied or will comply
in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and when read together and
with the other information in the Prospectus, at the time the Registration
Statement became, and any amendments thereto become, effective, and as of the
Closing Date, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading;
(c) The Registration Statement and the Prospectus, at the time the
Registration Statement and each part thereof became or hereafter become
effective, complied and any amendments or supplements thereto will comply, in
all material respects with the requirements of the Securities Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations of the Commission thereunder. The Registration
Statement at the time the Registration Statement and each part thereof became
effective did not and as of the Closing Date will not, contain an untrue
statement of any material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
The Prospectus, at the time the Registration Statement became effective did
not, and as of the Closing Date will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information relating to an Underwriter furnished in writing to
the Company by such Underwriter of Offered
-7-
<PAGE>
Securities and/or Offered Warrants, if any, through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Offered Securities and/or Offered Warrants, if any or to that part of the
Registration Statement constituting the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the Trustee;
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; and the
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification;
(e) First Bank National Association, the Company's Principal Subsidiary
Bank, has been duly incorporated and is validly existing as a national banking
association in good standing under the laws of the United States and has
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; all of the
issued and outstanding capital stock of such bank has been duly authorized and
validly issued and is fully paid and, except as provided in 12 U.S.C. Section
55, non-assessable; and at least 99% of the capital stock of First Bank
National Association, other than any director's qualifying shares, is owned by
the Company, directly or through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity;
(f) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Registration Statement, and the shares of issued and
outstanding Common Stock set forth thereunder have been duly authorized and
validly issued and are fully paid and non-assessable;
(g) Neither the Company nor any of its subsidiaries is in violation of its
charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
it is a party or by which it or any of them or their properties may be bound;
and the execution and delivery of this Agreement, the Offered Securities, the
Indenture, each applicable Delayed Delivery Contract (as defined in Section
II) and the consummation of the transactions contemplated herein and therein
have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the property or assets of the Company or
any of its subsidiaries is
-8-
<PAGE>
subject, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated
by this Agreement, except such as may be required under the Securities Act,
the Trust Indenture Act or the rules and regulations of the Commission
thereunder, all of which have been obtained, or such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities and/or Offered Warrants, if any, by the
Underwriters;
(h) The Company and its subsidiaries own or possess or have obtained all
material governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate
their respective properties and to carry on their respective businesses as
presently conducted;
(i) The Company and its subsidiaries own or possess adequate trademarks,
service marks and trade names necessary to conduct the business now operated
by them, and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any trademarks, service marks or trade names which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries considered
as one enterprise;
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or any
of its subsidiaries, which might result in any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the business prospects of the Company and
its subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially and
adversely affect the consummation of this Agreement and the consummation of
the transactions contemplated hereby; and there are no material contracts or
documents of the Company or any of its subsidiaries which are required to be
filed as exhibits to the Registration Statement by the Securities Act or by
the rules and regulations of the Commission thereunder which have not been so
filed;
(k) The Offered Securities have been duly authorized for issuance and sale
pursuant to this Agreement, and, when issued, authenticated and delivered
pursuant to this Agreement against payment of the consideration therefor
specified herein and, in the case of any Contract Securities, pursuant to
Delayed Delivery Contracts with respect to such Contract Securities, such
-9-
<PAGE>
Offered Securities will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as (i)
enforceability thereof may be limited by bankruptcy, insolvency, or other laws
relating to or affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability, and will be entitled to the
benefits provided by the Indenture; and the Offered Securities and the
Indenture conform in all material respects to all statements relating thereto
in the Prospectus;
(l) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent;
(m) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is the
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(n) If Offered Warrants are to be issued and delivered pursuant to this
Agreement, such Offered Warrants, the related Warrant Agreement and the
Warrant Debt Securities have been duly authorized and, when the Offered
Warrants are issued and delivered pursuant to this Agreement and, in the case
of any Contract Securities, pursuant to Delayed Delivery Contracts with
respect to such Contract Securities, such Offered Warrants will have been duly
executed, countersigned, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided
in the related Warrant Agreement and such Warrant Agreement will have been
duly executed and delivered by the Company and will constitute a valid and
legally binding agreement of the Company, enforceable in accordance with its
terms, except as (i) enforceability thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable principles
of general applicability; and the Warrant Debt Securities, when issued and
delivered pursuant to the related Warrant Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided
by the Indenture;
(o) In the event any of the Offered Securities and/or Offered Warrants, if
any, are purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized by the Company and, when
executed and delivered by the Company and the purchaser named therein, will
constitute a valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as (i) enforceability thereof may be limited
by bankruptcy, insolvency, or other laws relating to or
-10-
<PAGE>
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable principles of general applicability; and any Delayed
Delivery Contracts will conform to the description thereof in the Prospectus;
(p) The accountants who certified the financial statements included or
incorporated by reference in the Prospectus are independent public accountants
as required by the Securities Act and the rules and regulations issued by the
Commission thereunder;
(q) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Prospectus present
fairly the financial position of the Company and its consolidated subsidiaries
as at the dates indicated and the results of their operations for the periods
specified; except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles applied
on a consistent basis; and the pro forma financial information, and the
related notes thereto, included or incorporated by reference to the Prospectus
has been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act and the rules and regulations issued by
the Commission thereunder;
(r) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein
or contemplated thereby, (A) there has been no material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and (B) there have been no
material transactions entered into by the Company, or any of its subsidiaries
other than those in the ordinary course of business; and
(s) This Agreement has been duly authorized, executed and delivered by the
Company.
VIII.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter (each an "Indemnified
Person") within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
-11-
<PAGE>
statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in conformity with
written information relating to such Indemnified Person furnished to the
Company by the Representatives expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto or any related preliminary prospectus or preliminary prospectus
supplement);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with information relating
to such Indemnified Person furnished by the Representatives as aforesaid) if
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by such Indemnified Person), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with information relating
to such Indemnified Person furnished by the Representatives as aforesaid), to
the extent that any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter will indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement) in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus supplement).
-12-
<PAGE>
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of the Underwriters is an indemnified
party each such Underwriter shall be entitled to separate counsel (in addition
to any local counsel) in each such jurisdiction to the extent such Underwriter
may have interests conflicting with those of the other Underwriter or
Underwriters because of the participation of one Underwriter in a transaction
hereunder in which the other Underwriter or Underwriters did not participate.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in this Section VIII is for any
reason held to be unavailable to the Underwriters in accordance with its terms,
the Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters with respect to
Securities sold to the Underwriters in such proportions as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in such
proportion represented by the percentage that the total commissions and
underwriting discounts received by the Underwriters to the date of such
liability bears to the total sales price (before deducting expenses) received by
the Company from the sale of Securities made to the Underwriters to the date of
such liability, and the Company is responsible for the balance. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the Underwriters failed to give the notice required
under (c), then the Company and the Underwriters shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such liabilities, claims, damages and
expenses, as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or
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<PAGE>
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this paragraph
were determined pro rata (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this paragraph, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Securities referred to in the second sentence of this
paragraph that were offered and sold to the public through the Underwriters
exceeds the amount of any damages that the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled under this
paragraph to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
IX.
The indemnity and contribution agreements contained in Section VIII
hereof and the representations and warranties of the Company in this Agreement
or in any certificate submitted pursuant hereto shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company or the
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Offered Securities and/or Offered Warrants, if
any.
X.
If any Underwriter shall default in its obligation to purchase the
Offered Securities and/or Offered Warrants, if any, which it has agreed to
purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Offered Securities
and/or Offered Warrants, if any, on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Offered Securities and/or Offered Warrants,
if any, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Offered Securities and/or Offered Warrants, if
any, on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they
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<PAGE>
have so arranged for the purchase of such Offered Securities and/or Offered
Warrants, if any, or the Company notifies the Representatives that it has so
arranged for the purchase of such Offered Securities and/or Offered Warrants, if
any, the Representatives or the Company shall have the right to postpone the
Closing Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriters" as used
in this Agreement shall include any person substituted under this Section X with
like effect as if such person had originally been a party to this Agreement with
respect to such Offered Securities and/or Offered Warrants, if any.
If, after giving effect to any arrangements for the purchase of the
Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in the
immediately preceding paragraph hereof, the aggregate principal amount of such
Offered Securities (or number of Offered Warrants, if Offered Warrants alone are
being offered) which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Offered Securities (or number of Offered
Warrants, if Offered Warrants alone are being offered), then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
Offered Securities and/or Offered Warrants, if any, which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Offered Securities (or number of Offered Warrants, if Offered Warrants alone are
being offered) which such Underwriter agreed to purchase hereunder) of the
Offered Securities and/or Offered Warrants, if any, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
If, after giving effect to any arrangements for the purchase of the
Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in the first
paragraph of this Section X, the aggregate principal amount of Offered
Securities (or number of Offered Warrants, if Offered Warrants alone are being
offered) which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Offered Securities (or number of Offered Warrants,
if Offered Warrants alone are being offered) or if the Company shall not
exercise the right described in the immediately preceding paragraph to require
non-defaulting Underwriters to purchase Offered Securities and/or Offered
Warrants, if any, of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-
defaulting Underwriters or the company, except for the expenses to be borne by
the Company and the Underwriters as provided in Section XI hereof and the
indemnity and contribution agreements in Section VIII hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
-15-
<PAGE>
XI.
The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Securities Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and to dealers;
(ii) the cost of printing this Agreement, the Indenture, any Warrant Agreement
and any Blue Sky and legal investment memoranda; (iii) all expenses in
connection with the qualification of the Offered Securities and/or Offered
Warrants, if any, for offering and sale under state securities laws as provided
in Section VI(f) hereof, including the fees and disbursements of counsel in
connection with such qualification and in connection with the preparation of any
Blue Sky memorandum or any Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities; (vii) the fees and expenses
of the Warrant Agent, if any, and any agent of such Warrant Agent and the fees
and disbursements of counsel for such Warrant Agent in connection with the
Warrant Agreement and the Offered Warrants and Warrant Debt Securities, if any;
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section X. It is understood, however, that, except as provided in this Section
XI and Sections VIII and XII hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Offered Securities and/or Offered Warrants, if any, by them
and any advertising expenses connected with any offers they may make.
XII.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Securities.
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<PAGE>
XIII.
In all dealings hereunder, the Representatives of the Underwriters of
Offered Securities and/or Offered Warrants, if any, shall act on behalf of each
of such Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the representatives,
if any, as may be designated for such purpose hereunder.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the principal offices of the Representatives
and if to the Company shall be sufficient in all respects if delivered or sent
by registered mail to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section VIII(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the representatives upon request.
XIV.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Section VIII
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Offered Securities and/or Offered Warrants, if any, from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
XV.
Time shall be of the essence of this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement and the rights and obligations of the parties created
hereby shall be governed by the laws of the State of New York.
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<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
__________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from First Bank System, Inc.,
a Delaware corporation (the "Company") and the Company agrees to sell to the
undersigned [$________________ principal amount of the Company's title of issue]
(the "Securities")] [________ Warrants, each evidencing the right to purchase a
[state title of Warrant Debt Securities], (the "Warrant Debt Securities") in the
principal amount of $_________], offered by the Prospectus dated ____________,
19__ and Prospectus Supplement dated ____________, 19__, receipt of copies of
which are hereby acknowledged, [at a purchase price of ________% of the
principal amount thereof plus accrued interest from ____________, if any] for an
[aggregate] Purchase Price of $________] and on the further terms and conditions
set forth in this contract. The undersigned does not contemplate selling
Securities [and Warrants] prior to making payment therefor.
[The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
<TABLE>
<CAPTION>
Delivery Principal Plus Accrued Interest,
Date Amount If any, From:
--------- --------- ----------------------
<S> <C> <C>
......... $........ .....................
......... $........ .....................
......... $........ .....................]
</TABLE>
[The undersigned will purchase from the Company Warrants represented by
Warrant Certificates bearing the terms and on the delivery dates set forth
below:]
Each such date on which Securities [and Warrants] are to be purchased hereunder
is hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by [certified or
official bank check drawn on a bank approved by the Company and in New York
Clearing House (next day) funds] at the office of ___________________________,
New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
<PAGE>
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(i) the investment in the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (ii) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above, of such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinions of counsel for the Company delivered to the Underwriters
in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
-2-
<PAGE>
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
_________________________________________
(Purchaser)
By________________________________________
_________________________________________
(Title)
_________________________________________
_________________________________________
(Address)
Accepted:
FIRST BANK SYSTEM, INC.
By________________________
-3-
<PAGE>
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
<S> <C> <C>
__________________ ______________________ ________________
</TABLE>
-4-
<PAGE>
Exhibit A
Opinion of Counsel to the Company
---------------------------------
The opinion or opinions of Dorsey & Whitney P.L.L.P., counsel to the
Company, to be delivered pursuant to Section V(b) of the Agreement, shall be to
the following effect (all terms used herein which are defined in the Agreement
have the meanings set forth therein):
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement.
(iii) First Bank National Association has been duly incorporated and is
validly existing as a national banking association in good standing under the
laws of the United States, and has corporate power and authority to own, lease
and operate its properties and conduct its business as described in the
Registration Statement.
(iv) The Underwriting Agreement and any applicable Delayed Delivery
Contract have been duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly authorized,
executed and delivered by the Trustee) constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
(i) enforceability thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
principles of general applicability.
(vi) The Offered Securities have been duly and validly authorized by all
necessary corporate action and the Offered Securities other than any Contract
Securities constitute, and any Contract Securities, when executed and
authenticated, issued and delivered in the manner provided in the Indenture
and sold pursuant to Delayed Delivery Contracts, will constitute valid and
binding obligations of the Company, enforceable in accordance with their
terms, except as (i) enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability, and each holder
of Offered Securities is entitled to the benefits of the Indenture and each
holder of Contract Securities, when executed, authenticated, issued and
delivered in
<PAGE>
the manner provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will be entitled to the benefits of the Indenture.
(vii) The statements in the Basic Prospectus under the captions
"Description of Debt Securities" ["Description of Warrants"] and "Plan of
Distribution" and similar captions in the applicable prospectus supplement
insofar as they purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of such provisions.
(viii) The Indenture is qualified under the Trust Indenture Act.
(ix) The Registration Statement is effective under the Securities Act
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
Securities Act or proceedings therefor initiated or threatened by the
Commission.
(x) At the time the Registration Statement became effective, and at the
date hereof, the Registration Statement and the Prospectus and each document
incorporated by reference therein (other than the financial statements,
schedules and other financial data included therein and the Statement of
Eligibility and Qualification of the Trustee on Form T-1 filed as an exhibit
thereto, as to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Securities Act, the Exchange
Act, the Trust Indenture Act and the rules and regulations under each of those
Acts.
(xi) No consent, approval, authorization, or order of any court or
governmental authority or agency is required in connection with the sale of
the Offered Securities [and Offered Warrants], except such as may be required
under the Securities Act or the rules and regulations thereunder, all of which
have been obtained, or such as may be required state securities laws.
[If Offered Warrants are to be issued and delivered pursuant to this Agreement
insert --
(xii) The Offered Warrants have been duly authorized by all necessary
corporate action and the Offered Warrants other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated, issued
and delivered in the manner provided in the related Warrant Agreement and sold
pursuant to Delayed Delivery Contracts, constitute, valid and legally binding
obligations of the company entitled to the benefits provided in the related
Warrant Agreement.
(xiii) The Warrant Agreement has been duly authorized by all necessary
corporate action and constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, or other laws
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<PAGE>
relating to or affecting creditors' rights generally, or by general equity
principles, and each holder of Offered Warrants is entitled to the benefits of
the related Warrant Agreement and each holder of Contract Securities, when
executed, authenticated, issued and delivered in the manner provided in the
related Warrant Agreement and sold pursuant to Delayed Delivery Contracts,
will be entitled to the benefits of the related Warrant Agreement
(xiv) The Warrant Debt Securities have been duly and validly authorized
by all necessary corporate action and when duly executed, authenticated,
issued and delivered pursuant to the related Warrant Agreement, will
constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other laws relating to or affecting creditors'
rights generally, or by general equity principles, and each holder of Warrant
Debt Securities will be entitled to the benefits provided by the Indenture.]
In addition, Dorsey & Whitney P.L.L.P. will state that it has participated
in the preparation of the Registration Statement and the Prospectus and that
nothing has come to such counsel's attention that causes such counsel reason to
believe that (other than the financial statements, schedules and other financial
data included therein, as to which no statement need be rendered) the
Registration Statement and the Prospectus, at the time the Registration
Statement became effective, or if an amendment to the Registration Statement or
to any document incorporated by reference therein has been filed by the Company
with the Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing, and at the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as amended or
supplemented at the Closing Date, contains an untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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<PAGE>
Exhibit B
Opinion of General Counsel of the Company
-----------------------------------------
The opinion of the General Counsel of the Company, to be delivered
pursuant to Section V(c) of the Agreement, shall be to the following effect (all
terms used herein which are defined in the Agreement have the meanings set forth
therein):
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which its ownership
or lease of substantial properties or the conduct of its business requires
such qualification and where the failure so to qualify would have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) First Bank National Association is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or the
conduct of the business requires such qualification and where the failure so
to qualify would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(iii) There are no legal or governmental proceedings pending
or, to the best of such counsel's knowledge, threatened which are required to
be disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their property is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered
individually or in the aggregate, not material.
(iv) To the best of such counsel's knowledge and information, there are
no contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto
and the descriptions thereof or references thereto are correct.
(v) The execution and delivery of this Agreement, any applicable
Delayed Delivery Contract, any applicable Warrant Agreement and the Indenture
and the consummation of the transactions contemplated herein and therein will
not (a) conflict with or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject and that is material to the Company and its subsidiaries, taken as a
<PAGE>
whole, or (b) result in a violation of any law or administrative regulation or
administrative or court decree of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the Company known to such
counsel to be applicable to the Company nor will such action result in any
violation of the provisions of the charter or by-laws of the Company.
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<PAGE>
Exhibit C
Letter from Ernst & Young LLP
-----------------------------
The Letter of Ernst & Young LLP to be delivered pursuant to Section V(e) of
the Agreement shall be to the following effect (all terms used herein which are
defined in the Agreement have the meanings set forth therein):
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Securities Act and the
applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements and schedules
audited by them and included in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act, the Exchange Act, as applicable, and the published rules and
regulations thereunder.
(iii) They have made a review of any unaudited consolidated financial
statements included in the Prospectus in accordance with standards established
by the American Institute of Certified Public Accountants, as indicated in
their report or reports attached to such letter.
(iv) On the basis of the review referred to in (iii) and a reading of the
latest available interim financial statements of the Company and its
consolidated subsidiaries, inspection of the minute books of the Company and
such subsidiaries since the date of the balance sheet included in the
Company's most recent audited financial statements, inquiries of officials of
the Company responsible for financial and accounting matters and other
procedures, nothing came to their attention that caused them to believe that
the unaudited financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting requirements
of the Securities Act, the Exchange Act, and the published rules and
regulations thereunder or that the unaudited financial statements are not
presented in conformity with generally accepted accounting principles applied
on a basis consistent in all material respects with that of the audited
financial statements included in the Prospectus.
(v) They have performed specified procedures, not constituting an audit,
including a reading of the latest available interim financial statements of
the Company and its consolidated subsidiaries, a reading of the minute books
of the Company and such subsidiaries since the date of the balance sheet
included in the Company's most recent audited financial statements, inquiries
of officials of the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
and on the basis of such inquiries and procedures nothing came to their
attention that caused them to believe that:
<PAGE>
(A) at the date of the latest available consolidated balance sheet
read by such accountants, or at a subsequent specified date not more than
five days prior to the date of delivery of such letter, there was any
change in the capital stock of the Company and its consolidated
subsidiaries, any increase in long-term debt of the Company and its
consolidated subsidiaries or any decreases in allowance for credit loss or
consolidated common shareholders' equity of the Company and its
consolidated subsidiaries, in each case as compared with amounts shown in
the most recent consolidated balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; or
(B) for the period from the date of the latest income statement
included in the Prospectus to the closing date of the latest available
income statement read by such accountants, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated net income, consolidated net interest income before the
provision for credit losses, consolidated net interest income after the
provision for loan losses or in the ratio of earnings to fixed charges,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages
derived from such dollar amounts) and other financial information included in
the Prospectus (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures specified in
such letter, and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this Exhibit C.
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<PAGE>
EXHIBIT 1.2
DISTRIBUTION AGREEMENT
__________, 199_
[NAME AND ADDRESS(ES) OF AGENT(S)]
Dear Sirs:
First Bank System, Inc., a Delaware corporation (the "Company"), confirms
its agreement with you (you and each person executing a Distribution Agreement
substantially similar to this Agreement (including the Commission Schedule
attached hereto as Schedule A) being hereinafter referred to as an "Agent") with
respect to the issue and sale by the Company of up to $______ aggregate
principal amount or its equivalent in foreign currencies or currency units of
[Medium-Term Notes] (the "Securities"). The [Senior Notes] are to be issued
pursuant to an [Indenture dated as of October 1, 1991 (the "[Senior Note
Indenture]") between the Company and Citibank, N.A., as trustee (the "[Senior
Note Trustee]")], and the [Subordinated Notes] are to be issued pursuant to an
[Indenture dated as of October 1, 1991 (the "[Subordinated Note Indenture]")
between the Company and Citibank, N.A., as trustee (the "[Subordinated
Trustee]")]. The [Senior Note Indenture] and the [Subordinated Note Indenture],
together with any Officers' Certificates establishing the terms of the
Securities and any applicable Authentication Certificate Supplemental to
Officers' Certificate, Citi Treasury Manager transmission, facsimile
transmission or supplemental indentures, are collectively referred to herein as
the Indentures. It is understood that the Company may from time to time
authorize the issuance of additional Securities and that such additional
Securities may be sold through or to the Agents pursuant to the terms of this
Agreement, as though the issuance of such Securities were authorized as of the
date hereof.
Subject to the terms and conditions stated herein, the Company hereby (i)
appoints you as an agent of the Company for the purpose of soliciting purchases
of the Securities from the Company by others and (ii) agrees that whenever the
Company determines to sell Securities directly to you as principal for resale to
others, it may enter into a Terms Agreement relating to such sale in accordance
with the provisions of Section 2(c) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-______) relating to
the Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"). Such
registration statement has been declared effective by the Commission, and the
Indentures have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement and the prospectus and any
amendments or supplements thereto relating to the Securities filed pursuant to
Rule 424 under the 1933 Act, including all documents incorporated therein by
reference, as from time to
<PAGE>
time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to you as of the date hereof, as
of the Closing Time and each Settlement Date hereinafter referred to, and as of
the times referred to in Sections 6(a) and 6(b) hereof (in each case the
"Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement and each part thereof became effective, complied,
and as of the applicable Representation Date will comply, in all material
respects with the requirements of the 1933 Act, the rules and regulations
thereunder (the "Regulations") and the 1939 Act. The Registration
Statement at the time the Registration Statement and each part thereof
became effective did not, and as of the applicable Representation Date will
not, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective did not, and as of the applicable
Representation Date will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information relating to you furnished to the Company in
writing by you expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the 1939
Act (Form T-1) of the Trustee.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations thereunder (the "1934 Act Regulations"), and,
when read together and with the other information in the Prospectus, at the
time the Registration Statement became, and any amendments thereto become,
effective, and as of the applicable Representation Date, did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or
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<PAGE>
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(iii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the 1933 Act and the Regulations.
(iv) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Prospectus
present fairly the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their operations
for the periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
(B) there have been no material transactions entered into by the Company,
or any of its subsidiaries other than those in the ordinary course of
business.
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement; and
the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which its ownership or
lease of substantial properties or the conduct of its business requires
such qualification.
(vii) First Bank National Association, the Company's Principal
Subsidiary Bank, has been duly incorporated and is validly existing as a
national banking association in good standing under the laws of the United
States and has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement; all of the issued and outstanding capital stock of such bank has
been duly authorized and validly issued and is fully paid and, except as
provided in 12 U.S.C. Section 55, non-assessable; and at least 99% of the
capital stock of First Bank National Association, other than any director's
qualifying shares, is
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<PAGE>
owned by the Company, directly or through subsidiaries, free and clear of
any mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus and the shares of issued and
outstanding Common Stock set forth thereunder have been duly authorized and
validly issued and are fully paid and non-assessable.
(ix) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of them or their
properties may be bound; and the execution and delivery of this Agreement,
the Securities, the Indentures, each applicable Delayed Delivery Contract
(as defined in Section 2(b)) and each applicable Terms Agreement, if any,
and the consummation of the transactions contemplated herein and therein
have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or any law, administrative regulation or administrative or
court order or decree; and no consent, approval, authorization, order or
decree of any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under the 1933 Act, the 1939 Act
or the Regulations, all of which have been obtained, or such as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Agents.
(x) The Company and its subsidiaries own or possess or have obtained
all material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own, as the case may be, and
to operate their respective properties and to carry on their respective
businesses as presently conducted.
(xi) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the business
now operated by them, and neither the Company nor any of its
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<PAGE>
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any trademarks, service marks or
trade names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely affect
the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(xii) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened against or affecting, the Company
or any of its subsidiaries, which might result in any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the business prospects of
the Company and its subsidiaries considered as one enterprise, or might
materially and adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this Agreement and the
consummation of the transactions contemplated hereby; and there are no
material contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the Regulations which have not been so filed.
(xiii) The Securities have been duly authorized for issuance and
sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and of the
Indentures against payment of the consideration therefor specified herein,
the Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as (i)
enforceability thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability, and will be entitled to
the benefits provided by the Indentures, which are substantially in the
form heretofore delivered to you; and the Securities and the Indentures
conform in all material respects to all statements relating thereto
contained in the Registration Statement.
(xiv) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is imminent.
(xv) Each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
-5-
<PAGE>
(xvi) The Indentures have been duly qualified under the 1939 Act and
have been duly authorized, executed and delivered by the Company and are
the valid and binding agreements of the Company, enforceable in accordance
with their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(b) Any certificate signed by any officer of the Company and delivered to
you or to your counsel in connection with an offering of Securities shall be
deemed a representation and warranty by the Company to you as to the matters
covered thereby.
SECTION 2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, you agree to use your reasonable efforts, as agent for the Company, to
solicit offers to purchase the Securities upon the terms and conditions set
forth in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Securities commencing at any time for any
period of time or permanently. Upon receipt of instructions from the Company,
you will forthwith suspend solicitation of purchases from the Company until
advised by the Company that such solicitation may be resumed.
The Company agrees to pay you a commission, in the form of a discount,
equal to the percentage of the principal amount (in the case of Original Issue
Discount Securities, the principal amount payable at the stated maturity
thereof) of each Security sold by the Company as a result of a solicitation made
or offer to purchase received by you, as agent for the Company, as set forth in
Schedule A hereto.
You, in your capacity as agent for the Company, are authorized to solicit
orders for the Securities with terms specified to you from time to time by the
Company. You shall communicate to the Company, orally or in writing, each offer
to purchase Securities received by you as agent that in your judgment should be
considered by the Company. The Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer in whole or in
part. You shall have the right to reject any offer to purchase the Securities
received by you in whole or in part, and any such rejection shall not be deemed
a breach of its agreement contained herein.
-6-
<PAGE>
(b) Delayed Delivery Contracts. The Company authorizes you to solicit
offers to purchase Securities pursuant to delayed delivery contracts (the
"Contract Securities") substantially in the form of Exhibit B attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
approve. Delayed Delivery Contracts are to be entered into only with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. Upon execution of a Delayed Delivery Contract by the Company, the
Company will pay you as compensation the fee set forth in Schedule A hereto in
respect of the principal amount of Contract Securities purchased as a result of
solicitations made by you. The Company will make Delayed Delivery Contracts in
all cases where sales of Contract Securities arranged by you have been approved
by the Company. You will not have any responsibility in respect of the validity
or the performance of Delayed Delivery Contracts.
(c) Purchases as Principal. Each sale of Securities to you as principal
shall be made in accordance with the terms of this Agreement and (unless the
Company and you shall otherwise agree) a separate agreement which will provide
for the sale of such Securities to, and the purchase and reoffering thereof by,
you. Each such separate agreement (which shall be substantially in the form of
Exhibit A hereto and which may take the form of an exchange of any standard form
of written telecommunication between you and the Company) is herein referred to
as a "Terms Agreement". Your commitment to purchase Securities pursuant to any
Terms Agreement or otherwise shall be deemed to have been made on the basis of
the representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth; provided, however, that
for purposes of any Terms Agreement all references in this Agreement to "you" or
"the Agents" shall be deemed to refer only to the Agent or Agents that are a
party to such Terms Agreement. Each Terms Agreement shall specify the principal
amount of Securities to be purchased by you pursuant thereto, the price to be
paid to the Company for such Securities, the initial public offering price, if
any, at which the Securities are proposed to be reoffered, and the time of
delivery of and payment for such Securities and such other provisions as may be
mutually agreed upon. Such Terms Agreement shall also specify any requirements
for officer's certificates, opinions of counsel and letters from Ernst & Young
pursuant to Sections 5 and 6 hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Procedures (as defined below). For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and as set forth in Schedule A hereto (unless another
discount is agreed upon).
Securities purchased by an Agent as principal may be resold by such Agent
to one or more investors or other purchasers at varying prices related to
prevailing
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<PAGE>
market prices at the time of such resale, as determined by such Agent. In
addition, such Agent may offer the Securities it has purchased as principal to
other dealers.
(d) Procedures; Settlement. Administrative procedures respecting the sale
of Securities shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). You and the Company agree to perform on and after
the Closing Time the respective duties and obligations specifically provided to
be performed by each of them herein and in the Procedures. The time of delivery
of and payment for Securities, whether pursuant to a Terms Agreement or other
agreement to purchase Securities as principal or pursuant to another purchaser's
offer to purchase Securities solicited by you in your capacity as agent for the
Company, is hereinafter referred to as the "Settlement Date" for such
Securities.
(e) You agree, with respect to any Security denominated in a currency
other than U.S. dollars, as agent, directly or indirectly, not to solicit offers
to purchase, and as principal under any Terms Agreement or otherwise, directly
or indirectly, not to offer, sell or deliver, such Security in, or to residents
of, the country issuing such currency (or, if such Security is denominated in a
composite currency, in any country issuing a currency comprising a portion of
such composite currency), except as permitted by applicable law.
(f) Delivery. The documents initially required to be delivered by Section 5
hereof shall be delivered at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York on the date hereof, or at such other time as you and
the Company may agree upon in writing (the "Closing Time").
SECTION 3. Covenants of the Company. The Company covenants with you as
follows:
(a) If at any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of the counsel for the Agents or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the Regulations,
immediate notice shall be given, and confirmed in writing, to you to cease the
solicitation of offers to purchase the Securities in your capacity as agent for
the Company and to cease sales of any Securities you may then own as principal
pursuant to a Terms Agreement or otherwise, and the Company will promptly
prepare and file with the Commission
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such amendment or supplement, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement comply with such
requirements.
(b) On the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall furnish
such information to you, confirmed in writing, and shall cause the Prospectus to
be amended or supplemented to include or incorporate by reference capsule
financial information with respect to the results of operations of the Company
for the period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or the
Regulations; provided, however, that if on the date of such release you shall
have suspended solicitation of purchases of the Securities in your capacity as
agent for the Company pursuant to a request from the Company, and shall not then
hold any Securities as principal, the Company shall not be obligated so to amend
or supplement the Prospectus until such time as the Company shall determine that
solicitation of purchases of the Securities should be resumed or shall
subsequently enter into a new Terms Agreement with you.
(c) On the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall cause
the Registration Statement and the Prospectus to be amended, pursuant to the
1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such
audited financial statements and the report or reports, and consent or consents
to such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the Regulations; provided, however, that if on
the date of such release you shall have suspended solicitation of purchases of
the Securities in your capacity as agent for the Company pursuant to a request
from the Company, and shall not then hold any Securities as principal, the
Company shall not be obligated so to amend or supplement the Prospectus until
such time as the Company shall determine that solicitation of purchases of the
Securities should be resumed or shall subsequently enter into a new Terms
Agreement with you.
(d) The Company will make generally available to its security holders (as
defined in Rule 158) as soon as practicable, but not later than 45 days after
the close of each of the first three fiscal quarters of each fiscal year and 90
days after the close of each fiscal year, earnings statements (in form complying
with the
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provisions of Rule 158 under the 1933 Act) covering a twelve month period
beginning not later than the first day of the fiscal quarter next following the
effective date of the Registration Statement (as defined in Rule 158) with
respect to each sale of Securities.
(e) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise. The Company will furnish you with copies of any such
amendment or supplement or other documents, other than documents filed pursuant
to the 1934 Act, proposed to be filed a reasonable time in advance of filing,
and will furnish you with copies of documents filed pursuant to the 1934 Act
promptly upon the filing thereof.
(f) The Company will notify you immediately (i) of the filing and
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation or
threat of initiation of any proceedings for that purpose, or (vi) of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction or the initiation or threat of initiation of any proceedings for
that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order or suspension of qualification and, if any stop order
or suspension of qualification is issued, to obtain the lifting thereof at the
earliest possible moment.
(g) The Company will deliver to you as many signed and conformed copies of
the registration statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as you may reasonably
request. The Company will furnish to you as many copies of the Prospectus (as
amended or supplemented) as you shall reasonably request so long as you are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Securities.
(h) The Company will endeavor, in cooperation with you, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents may designate,
and will maintain such qualifications in effect for as long as may be required
for the
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distribution of the Securities; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Securities have been qualified as above provided.
(i) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
1934 Act.
(j) Between the date of any Terms Agreement which you are a party and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of each Agent that is a party to such Terms Agreement,
offer or sell in the United States, or enter into any agreement to sell in the
United States, any debt securities of the Company with terms substantially
similar to those of the Securities which are the subject of such Terms Agreement
(other than the Securities), except as may otherwise be provided in any such
Terms Agreement. Between (i) the date the Company accepts an offer by any Agent
to purchase Securities as principal not pursuant to a Terms Agreement and
confirms in writing its agreement to comply with this paragraph 3(j) with
respect to such Securities, and (ii) the Settlement Date with respect to such
Securities, the Company will not, without the prior consent of such Agent, offer
or sell in the United States, or enter into any agreement to sell in the United
States, any debt securities of the Company with terms substantially similar to
those of the Securities purchased by such Agent as principal (other than the
Securities), except as may otherwise be provided in the Company's written
confirmation to such Agent.
(k) The Company will suspend solicitation of purchases of the Securities,
and will advise the Agents of such suspension, upon receiving notice from a
nationally recognized statistical rating organization of the downgrading of any
rating assigned to any debt securities of the Company or of any intended or
potential downgrading or any review for possible change that does not indicate
the direction of the possible change in such rating.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement (whether or
not any sale of Securities is consummated), including: (i) the preparation and
filing of the Registration Statement and Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the qualification of the
Securities under securities or Blue Sky laws in accordance with the provisions
of Section 3(i), including filing fees and the reasonable fees and disbursements
of counsel in connection therewith and in
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connection with the preparation of any Blue Sky Memorandum, any Blue Sky Survey
and any Legal Investment Survey, (v) the printing and delivery to you in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to you of copies of the Indentures and
any Blue Sky Memorandum, Blue Sky Survey and any Legal Investment Survey, and
(vii) any fees charged by rating agencies for the rating of the Securities.
The Company shall reimburse you for the reasonable fees and disbursements
of your counsel. The Company shall also reimburse you for any advertising and
other out-of-pocket expenses incurred with the prior approval of the Company.
SECTION 5. Conditions of Obligation. Your obligation to solicit offers to
purchase the Securities in your capacity as agent of the Company and your
obligation to purchase Securities as principal pursuant to any Terms Agreement
or otherwise and the obligations of purchasers to purchase Securities pursuant
to purchase offers solicited by you and accepted by the Company will be subject
to the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Securities, at the time of such solicitation, and, in
the case of an Agent's or any other purchaser's obligation to purchase
Securities, at the time the Company accepts the offer to purchase such
Securities and at the applicable Settlement Date) and (in each case) to the
following additional conditions precedent:
(a) At Closing Time and at each Settlement Date with respect to any
applicable Terms Agreement to which you are a party, if called for by such Terms
Agreement, you shall have received:
(1) The opinion or opinions, dated as of such time, of Dorsey &
Whitney P.L.L.P., counsel to the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
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(iii) First Bank National Association has been duly
incorporated and is validly existing as a national banking
association in good standing under the laws of the United States, and
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement.
(iv) This Agreement (and, if the opinion is being given
pursuant to Section 6(c) hereof on account of the Company having
entered into a Terms Agreement, the applicable Terms Agreement) and
any applicable Delayed Delivery Contract has been duly authorized,
executed and delivered by the Company.
(v) Each of the [Senior Note Indenture] and the [Subordinated
Note Indenture] has been duly and validly authorized, executed and
delivered by the Company and (assuming each such Indenture has been
duly authorized, executed and delivered by the [Senior Note Trustee]
or the [Subordinated Note Trustee], as applicable) constitutes a
valid and binding agreement of the Company, enforceable in accordance
with its terms, except as (i) enforceability thereof may be limited
by bankruptcy, insolvency, or other laws relating to or affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(vi) The Securities have been duly and validly authorized by
all necessary corporate action and, when executed and authenticated
as specified in the applicable Indenture and delivered against
payment of the consideration therefor in accordance with this
Agreement, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (i)
enforceability thereof may be limited by bankruptcy, insolvency, or
other laws relating to or affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(vii) The statements in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution" and
similar captions in the applicable prospectus supplement, insofar as
they purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of such
provisions.
(viii) The statements in the Prospectus under the caption
"United States Taxation," to the extent that they constitute matters
of
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law or legal conclusions, have been reviewed by such counsel and are
correct.
(ix) The Indentures are qualified under the 1939 Act.
(x) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xi) At the time the Registration Statement became effective,
and at the date hereof, the Registration Statement and the Prospectus
and each document incorporated by reference therein (other than the
financial statements, schedules and other financial data included
therein and the Statements of Eligibility and Qualification of the
Trustee on Form T-l filed as an exhibit thereto, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act, the 1934 Act, the
1939 Act and the regulations under each of those Acts; and such
counsel has no reason to believe that (other than the financial
statements, schedules and other financial data included therein, as
to which no opinion need be rendered) the Registration Statement and
the Prospectus, at the time the Registration Statement became
effective, or if an amendment to the Registration Statement or to any
document incorporated by reference therein has been filed by the
Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such
filing, and at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as amended
or supplemented at Closing Time or the Settlement Date, as the case
may be, contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(xii) No consent, approval, authorization, or order of any
court or governmental authority or agency is required in connection
with the sale of the Securities, except such as may be required under
the 1933 Act or the rules and regulations thereunder, all of which
have been obtained, or such as may be required under state securities
laws.
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<PAGE>
In rendering such opinion, such counsel may rely as to matters of New York law
upon the opinion of counsel to the Agents being delivered pursuant to
subparagraph (3).
(2) The opinion or opinions, dated as of such time, of the General
Counsel of the Company, in form and substance satisfactory to you, to the
effect that:
(i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which its ownership or lease of substantial properties or the conduct
of the business requires such qualification and where the failure so
to qualify would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(ii) First Bank National Association is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which its ownership or lease of substantial
properties or the conduct of the business requires such qualification
and where the failure so to qualify would have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(iii) There are no legal or governmental proceedings pending
or to the best of such counsel's knowledge, threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed therein, and all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of
which any of their property is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, are, considered individually or in the
aggregate, not material.
(iv) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto and the descriptions
thereof or references thereto are correct.
(v) The execution and delivery of this Agreement (and, if the
opinion is being given pursuant to Section 6(c) hereof on account of
the Company having entered into a Terms Agreement, the applicable
Terms Agreement), any applicable Delayed Delivery
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<PAGE>
Contract, the Securities and the Indentures and the consummation of
the transactions contemplated herein and therein will not (a)
conflict with or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or
any of its subsidiaries is subject and that is material to the
Company and its subsidiaries, taken as a whole, or (b) result in a
violation of any law or administrative regulation or administrative
or court decree of any court or governmental agency, authority or
body or any arbitrator having jurisdiction over the Company known to
such counsel to be applicable to the Company nor will such action
result in any violation of the provisions of the charter or by-laws
of the Company.
(3) The opinion or opinions of your counsel, relating to the
incorporation of the Company, the validity of the Securities, the
Indentures, this Agreement, such other matters as the Agent or Agents
receiving such opinion may request and the Registration Statement and the
Prospectus. In rendering such opinion, such counsel may rely as to matters
of Minnesota law upon the opinions of Dorsey & Whitney P.L.L.P. and the
General Counsel of the Company being delivered pursuant to subparagraphs
(l) and (2) respectively.
(b) At Closing Time and at each Settlement Date with respect to any Terms
Agreement to which you are a party, if called for by such Terms Agreement, you
shall have received a certificate of the Chairman, Vice Chairman, President or a
Vice President of the Company, dated as of Closing Time and, if called for by
such Terms Agreement, dated as of the Settlement Date for such transaction, in
each case to the effect (i) that there has been no downgrading, nor any notice
given of any potential or intended downgrading, or of a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any nationally recognized statistical rating
organization, (ii) that the representations and warranties of the Company
contained in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate,
and (iv) that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(c) At Closing Time and at each Settlement Date with respect to any Terms
Agreement to which you are a party, if called for by such Terms Agreement, you
shall have received from Ernst & Young LLP (or another nationally recognized
firm
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of independent public accountants), a letter, dated as of the Closing Time or
such Settlement Date, in form and substance satisfactory to you, to the effect
that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
Regulations.
(ii) In their opinion the consolidated financial statements and
schedules audited by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act, the 1934 Act and the Regulations;
(iii) They have made a review of any unaudited consolidated
financial statements included in the Prospectus in accordance with
standards established by the American Institute of Certified Public
Accountants, as indicated in their report or reports attached to such
letter;
(iv) On the basis of the review referred to in (iii) and a reading
of the latest available interim financial information of the Company and
its consolidated subsidiaries, inspection of the minute books of the
Company and such subsidiaries since the date of the balance sheet included
in the Company's most recent audited financial statements, inquiries of
officials of the Company responsible for financial and accounting matters
and other specified procedures, nothing came to their attention that caused
them to believe that the unaudited financial statements included in the
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the 1933 Act, the 1934 Act and the
Regulations or that the unaudited financial statements included in the
Prospectus are not presented in conformity with generally accepted
accounting principles applied on a basis consistent in all material
respects with that of the audited financial statements included in the
Prospectus;
(v) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Company and its consolidated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the date of the
balance sheet included in the Company's most recent audited financial
statements, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and procedures
nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance
sheet read by such accountants, or at a subsequent specified date
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not more than five days prior to the date of delivery of such letter,
there was any change in the capital stock of the Company and its
consolidated subsidiaries, any increase in long-term debt of the
Company and its consolidated subsidiaries or any decreases in
allowance for credit loss or consolidated common shareholders' equity
of the Company and its consolidated subsidiaries, in each case as
compared with amounts shown in the most recent consolidated balance
sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; or
(B) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants, there
were any decreases, as compared with the corresponding period in the
preceding year, in consolidated net income, consolidated net interest
income before the provision for credit losses, consolidated net
interest income after the provision for loan losses or in the ratio
of earnings to fixed charges, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included in the Prospectus (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter,
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(d) At Closing Time and at each Settlement Date with respect to any Terms
Agreement to which you are a party, if called for by such Terms Agreement, the
counsel for the Agents shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
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representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Agents and their counsel.
Your obligation to solicit offers to purchase the Securities in your
capacity as Agent for the Company, your obligation to purchase Securities as
principal pursuant to any Terms Agreement or otherwise and the obligations of
purchasers to purchase Securities pursuant to purchase offers solicited by you
and accepted by the Company will be subject to the following further conditions:
(i) there shall not have been, since the date of such Terms Agreement or since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, other than as set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time such
offer to purchase was made, and (ii) there shall not have occurred any outbreak
or escalation of hostilities or any material change in financial markets or
other calamity or crisis the effect of which is such as to make it, in your
judgment, impracticable or inadvisable to market the Securities or enforce
contracts for the sale of the Securities, and (iii) trading in securities of the
Company shall not have been suspended by the Commission or a national securities
exchange, nor shall trading generally on either the American Stock Exchange or
the New York Stock Exchange have been suspended, or minimum or maximum prices
for trading of securities generally have been fixed, or maximum ranges for
prices for securities (other than trading limits currently in effect and other
similar trading limits) have been required, or trading otherwise materially
limited, by either of said exchanges or by order of the Commission or any other
governmental authority, nor shall a banking moratorium have been declared by
either Federal or New York authorities nor shall a banking moratorium have been
declared by the relevant authorities in the country or countries of origin of
any foreign currency or currencies in which the Securities are denominated or
payable and (iv) the rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company as of the date of the
applicable Terms Agreement or the date that the applicable purchase offer was
presented to the Company, as the case may be, shall not have been downgraded
from that date to the applicable Settlement Date nor shall any notice have been
given by any such nationally recognized statistical rating organization of any
intended or potential downgrading or any review for possible change that does
not indicate the direction of the possible change in such rating, and (v) the
Prospectus, at the time it was required to be delivered to a purchaser of the
Securities, shall not have contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
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If any condition specified in this Section shall not have been fulfilled,
any Terms Agreement to which you are a party and any agreement to purchase
Securities from the Company pursuant to a purchase offer solicited by you as
Agent may be terminated insofar as it applies to you or to a prospective
purchaser, in the case of a solicited purchase offer, by notice to the Company
at any time at or prior to the Closing Time or applicable Settlement Date, and
such termination shall be without liability of any party to any other party,
except that the covenants set forth in Section 3(d) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreement set forth in Sections
7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in
effect.
SECTION 6. Additional Covenants of the Company. The Company covenants and
agrees that:
(a) Each acceptance by it of an offer for the purchase of Securities, and
each sale of Securities to you pursuant to a Terms Agreement to which you are a
party, shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his agent, or you, as the case may be, of the relevant
Securities as though made at and as of each such time (and it is understood that
such representations and warranties shall relate to the Registration Statement
and the Prospectus as amended and supplemented to each such time).
(b) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or supplement relating
solely to the terms of the Securities or a change in the principal amount of
Securities remaining to be sold or similar changes) or there is filed with the
Commission any document incorporated by reference into the Prospectus, or if the
Company sells Securities to you pursuant to a Terms Agreement and such Terms
Agreement so provides, the Company shall, if so requested by you or if so
required by such Terms Agreement, furnish or cause to be furnished to you (or,
if such certificate is being furnished pursuant to a Terms Agreement, to the
Agent or Agents party thereto) forthwith a certificate in form satisfactory to
you (or, if such certificate is being furnished pursuant to a Terms Agreement,
to the Agent or Agents party thereto) to the effect that the statements
contained in the certificates referred to in Section 5(b) hereof which were last
furnished to you are true and correct at the time of such amendment or
supplement or filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, certificates of the same tenor as the
certificates
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referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificates;
(c) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than by an amendment or
supplement relating solely to the terms of the Securities or a change in the
principal amount of Securities remaining to be sold or similar changes), or if
the Company sells Securities to you pursuant to a Terms Agreement and such Terms
Agreement so provides, the Company shall, if so requested by you or if so
required by such Terms Agreement, furnish or cause to be furnished forthwith to
you (or, if such certificate is being furnished pursuant to a Terms Agreement,
to the Agent or Agents party thereto) and the counsel for the Agents written
opinions of Dorsey & Whitney P.L.L.P., counsel to the Company, or other counsel
satisfactory to the Agents receiving such opinion, and the General Counsel of
the Company, each dated the date of delivery of such opinion, in form
satisfactory to the Agents receiving such opinion, of the same tenor as the
opinions referred to in Sections 5(a)(1) and 5(a)(2), respectively, hereof but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinions
or, in lieu of such opinions, counsel last furnishing each such opinion to the
Agents shall furnish to the Agent or Agents entitled to receive such opinion a
letter to the effect that such Agent or Agents may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); and
(d) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information or there is
filed with the Commission any document incorporated by reference into the
Prospectus which contains additional financial information, or if the Company
sells Securities to you pursuant to a Terms Agreement and such Terms Agreement
so provides, the Company shall, if so requested by you or if so required by such
Terms Agreement, cause Ernst & Young LLP (or another nationally recognized firm
of independent public accountants) forthwith to furnish you (or, if such letter
is being furnished pursuant to a Terms Agreement, to the Agent or Agents party
thereto) a letter, dated the date of filing of such amendment, supplement or
document with the Commission, or the date of such sale, as the case may be, in
form satisfactory to the Agent or Agents entitled to receive such letter, of the
same tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses (iii),
(iv), (v) and (vi) of said Section 5(c) with such changes as
-21-
<PAGE>
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; provided,
however, that if the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, Ernst & Young LLP may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of the Agent or Agents
entitled to receive such letter, such letter should cover such other
information.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless you and each person,
if any, who controls you within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto or any related preliminary prospectus
or preliminary prospectus supplement) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission was made in reliance
upon and in conformity with written information relating to you furnished
to the Company by you expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto or any related preliminary prospectus or preliminary prospectus
supplement);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information relating to you furnished by you as aforesaid) if such
settlement is effected with the written consent of the Company; and
-22-
<PAGE>
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by you), as incurred, reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission (except as
made in reliance upon and in conformity with information relating to you
furnished by you as aforesaid), to the extent that any such expense is not
paid under (i) or (ii) above.
(b) You agree to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus supplement) in
reliance upon and in conformity with written information relating to you
furnished to the Company by you expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto or any related preliminary prospectus or preliminary prospectus
supplement).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of the Agents is an indemnified party
each such Agent shall be entitled to separate counsel (in addition to any local
counsel) in each such jurisdiction to the extent such Agent may have interests
conflicting with those of the other Agent or Agents because of the participation
of one Agent in a transaction hereunder in which the other Agent or Agents did
not participate. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
-23-
<PAGE>
SECTION 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unavailable to you in accordance with its
terms, the Company and you shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and you with respect to Securities
sold to or through you in such proportions as is appropriate to reflect the
relative benefits received by the Company on the one hand and you on the other.
The relative benefits received by the Company on the one hand and you on the
other shall be deemed to be in such proportion represented by the percentage
that the total commissions and underwriting discounts received by you to the
date of such liability bears to the total sales price (before deducting
expenses) received by the Company from the sale of Securities made to or through
you to the date of such liability, and the Company is responsible for the
balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if you failed to give the notice
required under Section 7(c), then the Company and you shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and you in connection with the statements or
omissions which resulted in such liabilities, claims, damages and expenses, as
well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and you agree that
it would not be just and equitable if contributions pursuant to this Section 8
were determined pro rata (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8. Notwithstanding the
provisions of this Section 8, you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Securities
referred to in the second sentence of this Section that were offered and sold to
the public through you exceeds the amount of any damages that you have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled under
this Section 8 to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls you within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as you,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
-24-
<PAGE>
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
SECTION 9. Status of the Agents. In acting under this Agreement and in
connection with the sale of any Securities by the Company (other than Securities
sold to you as principal), you are acting solely as agent of the Company and do
not assume any obligation towards or relationship of agency or trust with any
purchaser of Securities. You will make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer to purchase Securities
from the Company has been solicited by you and accepted by the Company but you
shall not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its obligations
to deliver Securities to a purchaser whose offer it has accepted, the Company
shall hold you harmless against any loss, claim, damage or liability arising
from or as a result of such default and shall, in particular, pay to you the
commission you would have received had such sale been consummated.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and indemnification and contribution
agreements contained in this Agreement or any Terms Agreement or other agreement
to purchase Securities as principal to which you are a party, or contained in
certificates of officers of the Company submitted pursuant hereto or thereto,
shall remain operative and in full force and effect, regardless of any
termination of this Agreement or any such Terms Agreement or any such other
agreement, or any investigation made by or on behalf of the Agents or any
controlling person referred to in Section 7, or by or on behalf of the Company
or any controlling person referred to in Section 7, and shall survive each
delivery of and payment for any of the Securities.
SECTION 11. Termination. This Agreement may be terminated with respect to
the participation of any party hereto for any reason at any time by such party
upon the giving of written notice of such termination to the other parties
hereto. Any Terms Agreement or other agreement to purchase securities as
principal to which you are a party shall be subject to termination in your
absolute discretion on the terms set forth or incorporated by reference therein,
but the termination of this Agreement shall not require termination of any such
Terms Agreement or such other agreement.
In the event of any such termination of this Agreement by any other party
hereto, no other party will have any liability to such party and such party will
not have any liability to any other party hereto, except that (i) you shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 2(a) hereof, (ii) if at the time of termination (A) you shall own any of
the Securities with the intention of reselling them or (B) an offer to purchase
any of the Securities has been
-25-
<PAGE>
accepted by the Company but the time of delivery to the purchaser or his agent
of the Securities or Securities relating thereto has not occurred, the covenants
set forth in Sections 3, 5 and 6 hereof shall remain in effect until such
Securities are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 3(d) hereof, the provisions of Section 4 hereof,
the indemnity and contribution agreements set forth in Sections 7 and 8 hereof,
and the provisions of Sections 9, 10, 13 and 14 hereof shall remain in effect.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and effective upon receipt and shall be deemed to have been duly
given if mailed or transmitted by any standard form of telecommunication.
Notices to [Agent] shall be directed to them at [Address] Attention: ___________
(telefax number: ________). Notices to the Company shall be directed to it at
First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4302,
attention of the Treasurer.
SECTION 13. Parties. This Agreement and any Terms Agreement to which you
are a party shall inure to the benefit of and be binding upon you (or, in the
case of a Terms Agreement, the Agent or Agents which are a party thereto) and
the Company and their respective successors and, to the extent provided in
Section 5 hereof, shall inure to the benefit of any person who has agreed to
purchase Securities from the Company pursuant to a purchase offer solicited by
you. Nothing expressed or mentioned in this Agreement or any Terms Agreement to
which you are a party is intended or shall be construed to give any person, firm
or corporation, other than the parties hereto and their respective successors
and, to the extent provided in Section 5 hereof, any person who has agreed to
purchase Securities from the Company pursuant to a purchase offer solicited by
you, and the controlling persons and officers and directors referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
such Terms Agreement or any provision herein or therein contained. This
Agreement and any such Terms Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and, to the extent provided in Section 5
hereof, any person who has agreed to purchase Securities from the Company
pursuant to a purchase offer solicited by you, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. Governing Law. This Agreement and the rights and obligations
of the parties created hereby shall be governed by the laws of the State of New
York.
-26-
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
FIRST BANK SYSTEM, INC.
By___________________________________
Its_____________________
CONFIRMED AND ACCEPTED in New York, New York as of the date
first above written:
[AGENT]
By _____________________________
Its _________________________
-27-
<PAGE>
SCHEDULE A
Term Commission Rates
---- ----------------
<PAGE>
EXHIBIT A
First Bank System, Inc.
(A Delaware corporation)
[Medium-Term Notes]
TERMS AGREEMENT
____________, 19__
____________________________
Attention: ______________________________________________________________
Re: Distribution Agreement dated ________________ , 199__
The undersigned agrees to purchase the following principal amount of
Securities:
$___________________
Initial Public Offering Price:
[Initial]* Interest Rate:
[Index Maturity:]*
[Interest Rate Basis:]*
[Maximum Interest Rate:]*
[Minimum Interest Rate:]*
[Interest Determination Dates:]*
[Interest Reset Dates:]*
[Interest Payment Dates:]*
[Maturity Date:]
[Spread:]*
[Spread Multiplier:]*
[Alternate Rate Event Spread:]*
[Alternate Rate Event Spread Multiplier:]*
[Interest Period:]*
[Regular Record Date (if other
A-1
<PAGE>
than the fifteenth calendar day
preceding each Interest Payment Date):]*
Purchase Price: %
Settlement Date and Time:
Redemption Provisions, if any:
[Currency of denomination:]**
[Denominations:]**
[Currency of payment:]**
[Original Issue Discount Note:]
[Other provisions:]
The provisions of Sections 1, 2(c) and 2(d), 3, 4, 7, 8 and 10 through
14 of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
Exceptions, if any, to Section 3(j) of the Distribution Agreement:
[Documents to be delivered:
The following documents referred to in the Distribution Agreement
shall be delivered:
[(1) The certificate referred to in Sections 5(b) and
6(b);]
[(2) The opinions referred to in Sections 5(a)(1), 5(a)(2)
[,5(a)(3)] and 6(c);]
[(3) The accountants' letter referred to in Sections 5(c)
and 6(d).]]
____________
* Applicable to Floating Rate Notes only.
** Applicable to Foreign Currency Notes Only.
[AGENT]
By___________________________________
Its_______________________________
Accepted:
FIRST BANK SYSTEM, INC.
By____________________________
[Title]
A-2
<PAGE>
EXHIBIT B
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than ______:00
A.M., New York time, on __________________________, 19_____.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of offering of Securities to be sold]
FIRST BANK SYSTEM, INC.
c/o [Insert name and address of Agents]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from First Bank System, Inc.,
a Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned, as of the date hereof, for delivery on___________________________
(the "Delivery Date"), $________________ principal amount of the Company's
______________________________________ (hereinafter called "Securities"),
offered by the Company's Prospectus, dated _________________________, 19__, as
supplemented by a Prospectus Supplement, dated _______________, 19__ and a
Pricing Supplement, dated __________________________, 19__, relating thereto,
receipt of a copy of which is hereby acknowledged, at ________% of the principal
amount thereof plus accrued interest, if any, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
Payment for the Securities which the undersigned has agreed to purchase
for delivery on the Delivery Date shall be made to the Company or its order in
immediately available funds in Minneapolis, Minnesota, at 10:00 A.M., Minnesota
time, at the offices of the Company, First Bank Place, 601 Second Avenue
South, Minneapolis, Minnesota 55402, on the Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the Delivery Date.
B-1
<PAGE>
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the condition that investment in the Securities shall not at the
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject.
The undersigned represents that its investment in such Securities is
not, as of the date hereof, prohibited under the laws of any jurisdiction to
which the undersigned is subject and which govern such investment.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
This Contract shall be governed by and construed in accordance with
the laws of the State of New York.
It is understood that the acceptance of any such Contract (including
this Contract) is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this Contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and
B-2
<PAGE>
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and
the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
___________________________________
(Name of Buyer)
By_________________________________
___________________________________
(Name and Title of Signatory)
___________________________________
___________________________________
(Address of Buyer)
Accepted as of the date
first above written
FIRST BANK SYSTEM, INC.
By ___________________________
______________________________
(Title)
B-3
<PAGE>
[DORSEY & WHITNEY P.L.L.P. LETTERHEAD]
EXHIBIT 5.1
First Bank System, Inc.
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
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 $1,000,000,000 aggregate principal amount of debt securities (the
"Debt Securities") and warrants to purchase Debt Securities (the "Warrants" and,
together with the Debt Securities, the "Securities").
We have examined such documents, including resolutions of the Board of
Directors adopted on February 15, 1995 (the "Financing Resolution"), and have
reviewed such questions of law, as we have considered necessary and appropriate
for the purposes of our opinion 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 opinion, we
have relied upon certificates of officers of the Company and of public
officials. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indentures incorporated by reference
as Exhibits 4.1 and 4.2 to the Registration Statement.
<PAGE>
DORSEY & WHITNEY P.L.L.P.
First Bank System, Inc.
April 10, 1995
Page 2
Based on the foregoing, we are of the opinion that:
1. When the specific terms of a series of Debt Securities have been
specified in a Supplemental Indenture or an Officer's Certificate, which has
been executed and delivered to the Trustee by an Authorized Officer (as defined
in the Financing Resolution), such series of Debt Securities will have been duly
authorized by all requisite corporate action and, when executed and
authenticated as specified in the Indentures and delivered against payment
therefor pursuant to the terms described in the Registration Statement and as
specified by an Authorized Officer, or when issued upon valid exercise of
Warrants that have been duly authorized by all requisite corporate action and
validly issued, will constitute valid and binding obligations of the Company,
enforceable in accordance with the terms of such series.
2. When the specific terms of a series of Warrants have been specified in
a Warrant Agreement executed and delivered by an Authorized Officer in
substantially the form incorporated by reference as Exhibit 4.5 to the
Registration Statement, the Warrants established in such Warrant Agreement will
have been duly authorized by all requisite corporate action and, when executed
and authenticated as specified in such Warrant Agreement and delivered against
payment therefor pursuant to the terms described in the Registration Statement
and as specified by an Authorized Officer, will constitute valid and binding
obligations of the Company, enforceable in accordance with the terms of such
Warrants.
The opinions set forth above are subject to the following qualifications
and exceptions:
(a) Our opinions are subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar law of general
application affecting creditors' rights.
(b) Our opinions are subject to the effect of general principles of
equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, and other similar doctrines
affecting the enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law).
(c) In rendering the opinions set forth above, we have assumed that, at
the time of the authentication and delivery of a series of Securities, the
Financing Resolution referred to above will not have been modified or
rescinded, there will not have occurred any change in the law affecting the
<PAGE>
DORSEY & WHITNEY P.L.L.P.
First Bank System, Inc.
April 10, 1995
Page 3
authorization, execution, delivery, validity or enforceability of the
Securities, the Registration Statement will have been declared effective by
the Commission and will continue to be effective, none of the particular terms
of a series of Securities will violate any applicable law and neither the
issuance and sale thereof nor the compliance by the Company with the terms
thereof will result in a violation of any agreement or instrument then binding
upon the Company or any order of any court or governmental body having
jurisdiction over the Company.
(d) As of the date of this opinion, a judgment for money in an action
based on a Debt Security denominated in a foreign currency or currency unit in
a federal or State court in the United States ordinarily would be enforced in
the United States only in United States dollars. The date used to determine
the rate of conversion into United States dollars of the foreign currency or
currency unit in which a particular Debt Security is denominated will depend
upon various factors, including which court renders the judgment. Under
Section 27 of the New York Judiciary Law, a state court in the State of New
York rendering a judgment on a Debt Security would be required to render such
judgment in the foreign currency or currency unit in which such Debt Security
is denominated, and such judgment would be converted into United States
dollars at the exchange rate prevailing on the date of entry of the judgment.
(e) Minnesota Statutes (S) 290.371, Subd. 4, provides that any corporation
required to file a Notice of Business Activities Report does not have a cause
of action upon which it may bring suit under Minnesota law unless the
corporation has filed a Notice of Business Activities Report and provides that
the use of the courts of the State of Minnesota for all contracts executed and
all causes of action that arose before the end of any period for which a
corporation failed to file a required report is precluded. Insofar as our
opinion may relate to the valid, binding and enforceable character of any
agreement under Minnesota law or in a Minnesota court, we have assumed that
any party seeking to enforce such agreement has at all times been, and will
continue at all times to be, exempt from the requirement of filing a Notice of
Business Activities Report or, if not exempt, has duly filed, and will
continue to duly file, all Notice of Business Activities Reports.
Our opinions expressed above are limited to the laws of the States of
Minnesota and New York, the Delaware General Corporation Law and the federal
laws of the United States of America.
<PAGE>
DORSEY & WHITNEY P.L.L.P.
First Bank System, Inc.
April 10, 1995
Page 4
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Validity of Securities" contained in the Prospectus included therein.
Dated: April 10, 1995
Very truly yours,
/s/ DORSEY & WHITNEY P.L.L.P.
CFS
<PAGE>
EXHIBIT 12.1
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Year Ended December 31
------------------------------------------------------------
(Dollars in Thousands) 1994 1993 1992 1991 1990
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings
1. Net income before cumulative effect $ 419,800 298,000 154,500 207,100 57,300
2. Applicable income taxes 256,900 178,800 78,600 25,900 8,500
------------------------------------------------------------
3. Income before taxes (1 + 2) $ 676,700 476,800 233,100 233,000 65,800
============================================================
4. Fixed charges:
a. Interest expense excluding interest on deposits $ 179,200 105,200 117,500 182,400 361,800
b. Portion of rents representative of interest and
amortization of debt expense 26,400 31,400 34,200 31,700 34,200
------------------------------------------------------------
c. Fixed charges excluding interest on deposits (4a + 4b) 205,600 136,600 151,700 214,100 396,000
d. Interest on deposits 373,100 423,700 568,700 872,800 1,191,400
------------------------------------------------------------
e. Fixed charges including interest on deposits (4c + 4d) $ 578,700 560,300 720,400 1,086,900 1,587,400
============================================================
5. Amortization of interest capitalized $ 4,800 4,900 300 300 300
6. Earnings excluding interest on deposits (3 + 4c + 5) 887,100 618,300 385,100 447,400 462,100
7. Earnings including interest on deposits (3 + 4e + 5) 1,260,200 1,042,000 953,800 1,320,200 1,653,500
8. Fixed charges excluding interest on deposits (4c) 205,600 136,600 151,700 214,100 396,000
9. Fixed charges including interest on deposits (4e) 578,700 560,300 720,400 1,086,900 1,587,400
Ratio of Earnings to Fixed Charges
10. Excluding interest on deposits (line 6/line 8) 4.31 4.53 2.54 2.09 1.17
11. Including interest on deposits (line 7/line 9) 2.18 1.86 1.32 1.21 1.04
------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 33-00000) and related Prospectus of First
Bank System, Inc. for the registration of $1,000,000,000 of debt securities and
warrants to purchase debt securities 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 Annual Report on
Form 10-K for the year ended December 31, 1994 and our report dated January 24,
1995 with respect to the supplemental 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.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
April 10, 1995
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael J. O'Rourke, Richard A.
Zona and David J. Parrin, and each of them, his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities to sign a Registration Statement on Form S-3 of First
Bank System, Inc., and any and all amendments thereto, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, each acting alone, or the substitutes for such attorneys-in-
fact and agents, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman, President,
- ---------------------------------- Chief Executive Officer
John F. Grundhofer and Director
Vice Chairman and
- ---------------------------------- Chief Financial Officer
Richard A. Zona (principal financial officer)
Senior Vice President
- ---------------------------------- and Controller
David J. Parrin (principal accounting offier)
/s/ Coleman Bloomfield Director March 20, 1995
__________________________________
Coleman Bloomfield
/s/ Roger L. Hale Director March 20, 1995
- ----------------------------------
Roger L. Hale
/s/ Delbert W. Johnson Director March 20, 1995
- ----------------------------------
Delbert W. Johnson
/s/ Norman M. Jones Director March 20, 1995
- ----------------------------------
Norman M. Jones
</TABLE>
<PAGE>
Signature Title Date
--------- ----- ----
/s/ John H. Kareken Director March 20, 1995
- --------------------------
John H. Kareken
Director
- --------------------------
Richard L. Knowlton
Director
- --------------------------
Kenneth A. Macke
/s/ Marilyn C. Nelson Director March 20, 1995
- --------------------------
Marilyn C. Nelson
/s/ Will F. Nicholson, Jr. Director March 20, 1995
- --------------------------
Will F. Nicholson, Jr.
/s/ Nicholas R. Petry Director March 20, 1995
- --------------------------
Nicholas R. Petry
/s/ Edward J. Phillips Director March 20, 1995
- --------------------------
Edward J. Phillips
/s/ James J. Renier Director March 20, 1995
- --------------------------
James J. Renier
/s/ S. Walter Richey Director March 20, 1995
- --------------------------
S. Walter Richey
/s/ Richard L. Robinson Director March 20, 1995
- --------------------------
Richard L. Robinson
/s/ Richard L. Schall Director March 20, 1995
- --------------------------
Richard L. Schall
<PAGE>
/s/ Lyle E. Schroeder Director March 20, 1995
- -----------------------
Lyle E. Schroeder
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee pursuant to
Section 305(b)(2)
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
399 Park Avenue, New York, New York 13-5266470
(Address of principal executive offices) (I.R.S. employer identification no.)
10043
(Zip Code)
_______________________
First Bank System, Inc.
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
601 Second Avenue South
Minneapolis, MN 55402
(Address of principal executive offices) (Zip Code)
The "Securities"
(Title of the indenture securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is
subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
16. List of Exhibits
----------------
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983).
Exhibit 2 - Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519).
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to
Registration Statement No. 33-34988).
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement
No. 33-19227).
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as
of December 31, 1994 - attached).
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Citibank, N.A., a national banking association organized and existing under the
laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 7th day
of April, 1995.
CITIBANK, N.A.
By /s/Florence Mills
-----------------
Florence Mills
Senior Trust Officer
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N. A.
of New York in the State of New York, at the close of business on December 31,
1994, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin..........$ 6,759,000
Interest-bearing balances....... 7,201,000
Securities:
Held-to-maturity securities..... 3,918,000
Available-for-sale securities... 11,963,000
Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the
bank and of its Edge and Agree-
ment subsidiaries, and in IBFs:
Federal funds sold............... 4,427,000
Securities purchased under
agreements to resell............. 1,114,000
Loans and lease financing receiv-
ables:
Loans and leases, net of un-
earned income......$128,902,000
LESS: Allowance for loan
and lease losses......3,986,000
------------
Loans and leases, net of un-
earned income and allowance.... 124,916,000
Assets held in trading accounts... 35,573,000
Premises and fixed assets (includ-
ing capitalized leases).......... 3,192,000
Other real estate owned........... 1,967,000
Investments in unconsolidated
subsidiaries and associated com-
panies........................... 998,000
Customers' liability to this bank
on acceptances outstanding....... 1,420,000
Intangible assets................. 15,000
Other assets...................... 7,024,000
------------
TOTAL ASSETS......................$210,487,000
============
LIABILITIES
Deposits:
In domestic offices..............$ 33,727,000
Noninterest-
bearing.............$12,509,000
Interest-
bearing............. 21,218,000
-----------
In foreign offices. Edge and
Agreement subsidiaries, and
IBFs............................ 108,207,000
Noninterest-
bearing..............7,180,000
Interest-
bearing............101,027,000
-----------
Federal funds purchased and se-
curities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased........ 8,044,000
Securities sold under agree-
ments to repurchase............ 922,000
Trading liabilities............... 21,458,000
Other borrowed money:
With original maturity of one
year or less.................... 7,803,000
With original maturity of more
than one year................... 3,895,000
Mortgage indebtedness and obli-
gations under capitalized leases. 99,000
Bank's liability on acceptances
executed and outstanding......... 1,440,000
Notes and debentures subordinated
to deposits...................... 5,700,000
Other liabilities................. 7,226,000
------------
TOTAL LIABILITIES.................$196,591,000
------------
EQUITY CAPITAL
Common stock......................$ 751,000
Surplus........................... 6,620,000
Undivided profits and capital re-
serves........................... 6,945,000
Net unrealized holding gains
(losses) on available-for-sale
securities....................... 156,000
Cumulative foreign currency
translation adjustments.......... (576,000)
------------
TOTAL EQUITY CAPITAL..............$ 13,896,000
------------
TOTAL LIABILITIES AND
EQUITY CAPITAL...................$210,487,000
============
I, Roger W. Trupin, Controller of the above-
named bank do hereby declare that this Report
of Condition is true and correct to the best
of my knowledge and belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to
the correctness of this Report of Condition.
We declare that it has been examined by us,
and to the best of our knowledge and belief
has been prepared in conformance with the
instructions and is true and correct.
CHRISTOPHER J. STEFFEN (
PAUL J. COLLINS Directors
PEI-YUAN CHIA )
