<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1996
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------
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 LEE R. MITAU, ESQ.
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:
CHARLES F. SAWYER, ESQ. JEFFREY D. BERMAN, ESQ.
DORSEY & WHITNEY LLP DAVIS POLK & WARDWELL
220 SOUTH SIXTH STREET 450 LEXINGTON AVENUE
MINNEAPOLIS, MINNESOTA 55402-4302 NEW YORK, N.Y. 10017
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF EACH PROPOSED PROPOSED
CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1)(2) FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt
Securities(3)(4),
Preferred
Stock(5),
Depositary
Shares(5)(6),
Debt Warrants .. $698,000,000(3) 100%(4) $698,000,000(4) $240,690
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- ----------------------------------------------------------------------------------------------
</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. Securities registered hereby may be
offered for U.S. dollars or the equivalent thereof in foreign currencies,
currency units or composite currencies.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o). The proposed maximum offering price will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(3) If any Debt Securities are issued at an original issue discount, then
such greater amount as may be sold for an aggregate initial offering
price of up to the proposed maximum aggregate offering price set forth
above.
(4) In addition to any Debt Securities that may be issued directly under this
Registration Statement, there is being registered hereunder such
indeterminate amount of Debt Securities as may be issued upon conversion
or exchange of other Debt Securities, Preferred Stock or Depositary
Shares, for which no consideration will be received by the Registrant.
(5) Such indeterminate number of shares of Preferred Stock and such
indeterminate number of Depositary Shares as may be issued from time to
time at indeterminate prices. In addition to any Preferred Stock and
Depositary Shares that may be issued directly under this Registration
Statement, there are being registered hereunder such indeterminate number
of shares of Preferred Stock and such indeterminate number of Depositary
Shares, as may be issued upon conversion or exchange of Debt Securities,
Preferred Stock or Depositary Shares, as the case may be, for which no
separate consideration will be received by the Registrant.
(6) Depositary Shares will represent fractional interests in Preferred Stock
registered hereby.
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. 33-58521, most recently declared effective on May
26, 1995.
--------------
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>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MARCH 5, 1996
PROSPECTUS
$1,500,000,000
FIRST BANK SYSTEM, INC.
LOGO
DEBT SECURITIES, PREFERRED STOCK,DEPOSITARY SHARES AND DEBT WARRANTS
-----------
First Bank System, Inc. ("FBS" or the "Company") may offer from time to time
in one or more series (i) its unsecured debt securities, which may be senior
(the "Senior Notes") or subordinated (the "Subordinated Notes," and together
with the Senior Notes (the "Debt Securities"); (ii) shares of its preferred
stock (the "Preferred Stock"); (iii) depositary shares (the "Depositary
Shares") representing fractional shares of Preferred Stock and evidenced by
depositary receipts; or (iv) warrants to purchase Debt Securities (the "Debt
Warrants"), in an aggregate principal amount not to exceed $1,500,000,000, 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
(each, a "Currency"), 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,
Preferred Stock, Depositary Shares and Debt Warrants (collectively, the
"Securities") will be offered for sale directly to purchasers or through
dealers, underwriters or agents to be designated. The Securities will be
offered to the public at prices and on terms determined at the time of
offering. The Securities may be sold for U.S. dollars or other Currencies and
any amounts payable by the Company in respect of the Securities may likewise by
payable in U.S. dollars or other Currencies.
The specific terms with respect to a series or issue of Securities such as
(i) the terms of any Debt Securities offered, including, where applicable,
their title, ranking, aggregate principal amount, maturity, rate of interest
(or method of calculation) and time of payment thereof, any redemption or
repayment terms, any restrictive covenants, the Currency or Currencies in which
such Debt Securities will be denominated or payable, any index, formula or
other method pursuant to which principal, premium, if any, or interest, if any,
may be determined, any conversion or exchange provisions, and other specific
terms not described in this Prospectus; (ii) the terms of any Preferred Stock
offered, including, where applicable, the specific designation, number of
shares, dividend rate (or method of calculation) and time of payment thereof,
liquidation preference, any redemption or repayment terms, any conversion or
exchange provisions, any voting rights, and other specific terms not described
in this Prospectus; (iii) the terms of any Depositary Shares offered which are
not described in this Prospectus, including the fraction of a share of
Preferred Stock represented by each such Depositary Share; and (iv) the initial
public offering price and the net proceeds to the Company and other specific
terms related to the offered Securities, will be set forth in one or more
supplements to this Prospectus (each a "Prospectus Supplement").
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."
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAP-
PROVED BY THE SECURITIES AND EXCHANGE COMMIS-
SION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMI-
NAL OFFENSE.
-----------
The Securities may be sold to or through underwriters, dealers or agents for
public offering or directly to other purchasers pursuant to the terms of the
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.
-----------
THE DATE OF THIS PROSPECTUS IS MARCH , 1996.
<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, 1995; and
(b) Current Reports on Form 8-K filed January 9, 1996, January 19, 1996
and January 30, 1996.
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 Karin E. Glasgow, 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").
----------------
Notice to North Carolina purchasers: the Commissioner of Insurance of the
State of North Carolina has not approved or disapproved this offering nor has
the Commissioner passed upon the accuracy or adequacy of this prospectus.
----------------
2
<PAGE>
FIRST BANK SYSTEM, INC.
GENERAL
FBS is a regional bank holding company headquartered in Minneapolis,
Minnesota. FBS is comprised of eight banks, a savings association and other
financial companies with more than 350 offices, located primarily in the 11
states of Minnesota, Colorado, Illinois, Montana, North Dakota, South Dakota,
Wisconsin, Iowa, Nebraska, Kansas and Wyoming. 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, 1995, FBS and its
consolidated subsidiaries had consolidated assets of $33.9 billion,
consolidated deposits of $22.5 billion and shareholders' equity of $2.7
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 $16.1 billion at December 31, 1995.
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 obtained 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.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and to
combined fixed charges and preferred stock dividends of the Company for the
respective periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
1991 1992 1993 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits..................... 2.12 2.71 4.06 2.68 3.11
Including interest on deposits..................... 1.21 1.33 1.67 1.56 1.80
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends:
Excluding interest on deposits..................... 1.89 2.16 3.25 2.51 3.03
Including interest on deposits..................... 1.18 1.27 1.59 1.53 1.78
</TABLE>
3
<PAGE>
For purposes of computing the ratio of earnings to fixed charges, 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. For purposes
of computing the ratio of earnings to combined fixed charges and preferred
stock dividends, the calculation is the same as the ratio of earnings to fixed
charges, except that fixed charges include the amount of pretax earnings which
would be required to cover preferred stock dividend requirements.
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 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
4
<PAGE>
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.
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
5
<PAGE>
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 (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 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.
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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 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.
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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)
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
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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.
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Stock. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Certificate of Designations relating to each series of the
Preferred Stock.
GENERAL
Pursuant to the Company's Restated Certificate of Incorporation, as amended,
the Board of Directors of the Company has the authority, without further
stockholder action, to issue from time to time a maximum of 10,000,000 shares
of preferred stock ("Preferred Stock"), including shares issued or reserved for
issuance, in one or more series and with such terms and at such times and for
such consideration as the Board of Directors of the Company may determine. The
authority of the Board of Directors of the Company includes the determination
or fixing of the following with respect to shares of any series thereof: (i)
the number of shares and designation or title thereof; (ii) rights as to
dividends; (iii) whether and upon what terms the shares are to be redeemable;
(iv) whether and upon what terms the shares shall have a purchase, retirement
or sinking fund; (v) whether and upon what terms the shares are to be
convertible; (vi) the voting rights, if any, which shall apply; (vii)
restrictions, if any, on the issue or reissue of any Preferred Stock; (viii)
the rights of the holders upon the dissolution, or upon the distribution of
assets, of the Company; and (ix) any other preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such series. At December 31, 1995, 2,064,900
shares of Preferred Stock were outstanding and an additional 1,443,650 shares
were authorized and reserved for issuance. The Board of Directors has
authorized the issuance from time to time, on such terms and subject to such
conditions as may be approved by the Securities Committee thereof, of up to
6,000,000 additional shares of Preferred Stock in one or more series.
As described under "Description of Depositary Shares," the Company may, at
its option, elect to offer depositary shares ("Depositary Shares") evidenced by
depositary receipts ("Depositary Receipts"), each representing a fractional
interest (to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the particular series
of the Preferred Stock issued and deposited with a Depositary (as defined
below).
Under interpretations adopted by the Federal Reserve Board, if the holders of
any series of the Preferred Stock become entitled to vote for the election of
directors because dividends on such series are in arrears as described under
"Voting Rights" below, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% or
more if it otherwise exercises a "controlling influence" over the Company) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act. In addition, at such time as such series is deemed a
class of voting securities, any other bank holding company may be required to
obtain the prior approval of the Federal Reserve Board to acquire 5% or more of
such series, and any person other than a bank holding company may be required
to obtain the prior approval of the Federal Reserve Board to acquire 10% or
more of such series.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including (i) the title,
stated value and liquidation preferences of such Preferred Stock and the number
of shares offered; (ii) the initial public offering price at which such
Preferred Stock
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will be issued; (iii) the dividend rate or rates (or method of calculation),
the dividend periods, the dates on which dividends shall be payable and whether
such dividends shall be cumulative or noncumulative and, if cumulative, the
dates from which dividends shall commence to cumulate; (iv) any redemption or
sinking fund provisions; (v) whether the Company has elected to offer
Depositary Shares as described under "Description of Depositary Shares"; and
(vi) any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of the Preferred Stock, each series of the Preferred Stock
will rank on a parity in all respects with the outstanding shares of the
Company's Preferred Stock described below and each other series of the
Preferred Stock and will rank senior to the Company's Junior Preferred Stock
described below. The Preferred Stock will have no preemptive rights to
subscribe for any additional securities which may be issued by the Company.
Unless otherwise specified in the applicable Prospectus Supplement, First
Chicago Trust Company of New York will be the transfer agent and registrar for
the Preferred Stock and any Depositary Shares.
DIVIDENDS
The holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company or a
duly authorized committee thereof, out of funds legally available therefor,
cash dividends at such rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such rates may be fixed or
variable or both. If variable, the formula used for determining the dividend
rate for each dividend period will be set forth in the Prospectus Supplement.
Dividends will be payable to the holders of record as they appear on the stock
books of the Company on such record dates as will be fixed by the Board of
Directors of the Company or a duly authorized committee thereof.
Dividends on any series of the Preferred Stock will be cumulative as provided
in, or except as otherwise specified in, the applicable Prospectus Supplement.
No full dividends will be declared or paid or set apart for payment on any
stock of the Company ranking, as to dividends, on a parity with or junior to
the Preferred Stock for any period unless full dividends on the Preferred Stock
of each series (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment. When dividends are not paid in
full upon any series of Preferred Stock and any other Preferred Stock ranking
on a parity as to dividends with the Preferred Stock, all dividends declared or
made upon Preferred Stock of each series and any other Preferred Stock ranking
on a parity as to dividends with the Preferred Stock shall be declared pro rata
so that the amount of dividends declared per share on Preferred Stock of each
series and such other Preferred Stock shall in all cases bear to each other the
same ratio that accrued dividends per share on shares of each series of the
Preferred Stock and such other Preferred Stock bear to each other. Except as
provided in the preceding sentence, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of, Common Stock or any other stock of the Company
ranking junior to the Preferred Stock as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or any other stock of the Company
ranking junior to or on a parity with the Preferred Stock as to dividends or
upon liquidation, nor shall any Common Stock nor any other stock the Company
ranking junior to or on a parity with the Preferred Stock as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for stock of the Company ranking junior to the
Preferred Stock as to dividends and upon liquidation) unless, in each case, the
full dividends on each series of the Preferred Stock shall have been paid or
declared and set aside for payment. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
any series of the Preferred Stock which may be in arrears.
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VOTING RIGHTS
If, at the time of any annual meeting of shareholders for the election of
directors, the amount of accrued but unpaid dividends on any preferred stock of
the Company is equal to at least six quarterly dividends on such series of
preferred stock of the Company, the number of the directors of the Company will
be increased by two and the holders of all outstanding series of preferred
stock of the Company (excluding the Series 1990A Preferred Stock described
below under "Description of Outstanding Preferred Stock"), voting as a single
class without regard to series, will be entitled to elect such additional two
directors until all dividends in default on all preferred stock of the Company
have been paid or declared and set apart for payment.
The affirmative vote or consent of the holders of at least two-thirds of the
outstanding shares of any series of the preferred stock of the Company, voting
as a class, will be required for any amendment of the Company's Certificate of
Incorporation (including any certificate of designation or any similar document
relating to any series of preferred stock of the Company) which will adversely
affect the powers, preferences, privileges or rights of such series of
preferred stock. The affirmative vote or consent of the holders of at least
two-thirds of the outstanding shares of any series of preferred stock of the
Company, voting as a single class without regard to series, will be required to
issue, authorize, or increase the authorized amount of, or issue or authorize
any obligation or security convertible into or evidencing a right to purchase,
any additional class or series of stock ranking prior to such series of
preferred stock as to dividends or upon liquidation.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption pursuant
to a sinking fund or otherwise, in each case upon terms, at the times and at
the redemption prices set forth in the Prospectus Supplement relating to such
series. Preferred Stock redeemed by the Company will be restored to the status
of authorized but unissued shares of Preferred Stock.
The Prospectus Supplement relating to a series of the Preferred Stock which
is subject to mandatory redemption will specify the number of shares of such
series of the Preferred Stock which shall be redeemed by the Company in each
year commencing after a date to be specified, at a redemption price per share
to be specified, together with an amount equal to all accrued and unpaid
dividends thereon to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the Prospectus Supplement
relating to such series of the Preferred Stock. If the redemption price is
payable only from the net proceeds of the issuance of capital stock of the
Company, the terms of such series may provide that, if no such capital stock
shall have been issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then due, the
applicable shares of such series of the Preferred Stock shall automatically and
mandatorily be converted into shares of the applicable capital stock of the
Company pursuant to conversion provisions specified in the Prospectus
Supplement relating to such series of the Preferred Stock.
If fewer than all of the outstanding shares of any series of the Preferred
Stock are to be redeemed, the number of shares to be redeemed will be
determined by the Board of Directors of the Company and such shares shall be
redeemed pro rata from the holders of record of such shares in proportion to
the number of such shares held by such holders (with adjustments to avoid
redemption of fractional shares).
Notwithstanding the foregoing, if any dividends, including any accumulation,
on Preferred Stock of any series are in arrears, no Preferred Stock of such
series shall be redeemed unless all outstanding Preferred Stock of such series
are simultaneously redeemed, and the Company shall not purchase or otherwise
acquire any Preferred Stock of such series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of Preferred Stock of
such series pursuant to a purchase or exchange offer provided such offer is
made on the same terms to all holders of such series of the Preferred Stock.
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Notice of redemption shall be given by mailing the same to each record holder
of the shares to be redeemed, not less than 30 nor more than 60 days prior to
the date fixed for redemption thereof, to the respective addresses of such
holders as the same shall appear on the stock books of the Company. Each such
notice shall state (i) the redemption date; (ii) the number of shares and
series of the Preferred Stock to be redeemed; (iii) the redemption price; (iv)
the place or places where certificates for such Preferred Stock are to be
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date. If fewer
than all shares of any series of the Preferred Stock held by any holder are to
be redeemed, the notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Stock called for redemption
(unless default shall be made by the Company in providing money for the payment
of the redemption price of the shares so called for redemption), dividends on
the Preferred Stock so called for redemption shall cease to accrue and such
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Company (except the right to receive the
redemption price) shall cease. Upon surrender in accordance with such notice of
the certificates representing any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Company shall so
require and the notice shall so state), the redemption price set forth above
shall be paid out of funds provided by the Company. If fewer than all of the
shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without cost to the holder
thereof.
CONVERSION
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Stock will not be convertible into any other class or series of
capital stock of the Company.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of shares of each series of the
Preferred Stock and any other stock ranking on a parity with such series of
Preferred Stock upon liquidation will be entitled to receive out of the assets
of the Company available for distribution to stockholders, before any
distribution of assets is made to holders of the Common Stock or any other
class or series of stock of the Company ranking junior to such series of the
Preferred Stock upon liquidation, liquidation distributions in the amount set
forth in the Prospectus Supplement relating to such series of the Preferred
Stock plus an amount equal to the sum of all accrued and unpaid dividends
(whether or not earned or declared) for the then current dividend period and,
if such series of the Preferred Stock is cumulative, for all dividend periods
prior thereto. Neither the sale of all or any part of the property and business
of the Company, nor the merger or consolidation of the Company into or with any
other corporation nor the merger or consolidation of any other corporation into
or with the Company, shall be deemed to be a dissolution, liquidation or
winding up. If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the assets of the Company available for distribution
to the holders of the Preferred Stock of any series and any other shares of
stock of the Company ranking as to any such distribution on a parity with such
series of the Preferred Stock shall be insufficient to pay in full all amounts
to which such holders are entitled, no such distribution shall be made on
account of any shares of any other series of the Preferred Stock or other
securities of the Company ranking as to any such distribution on a parity with
the Preferred Stock of such series upon such dissolution, liquidation or
winding up unless proportionate distributive amounts shall be paid on account
of the Preferred Stock of such series, ratably, in proportion to the full
distributive amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up. After
payment of the full amount of the liquidation distribution to which they are
entitled, the holders of such series of the Preferred Stock will have no right
or claim to any of the remaining assets of the Company.
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DESCRIPTION OF OUTSTANDING PREFERRED STOCK
Series 1990A Preferred Stock. In connection with the sale by the Company of
12,600,000 shares of the Company's Common Stock and accompanying periodic stock
purchase rights and risk event warrants in a private placement in July 1990,
the Company may under certain circumstances be obligated to issue up to 12,750
shares of Series 1990A Preferred Stock. The shares of Series 1990A Preferred
Stock would, if issued, provide for a liquidation preference of $100,000 per
share. The dividend rate would be adjusted quarterly and would be determined at
the time of issuance. If, at the time of any annual meeting of shareholders for
the election of directors, the amount of accrued but unpaid dividends on the
Series 1990A Preferred Stock were equal to at least six quarterly dividends on
such series, then the number of directors of the Company would be increased by
one and the holders of such Series, voting as a separate class, would be
entitled to elect one additional director who would continue to serve the full
term for which he or she would have been elected, notwithstanding the
declaration or payment of any dividends on the Series 1990A Preferred Stock.
Holders of Series 1990A Preferred Stock would not have any other voting rights,
except as described under "Voting Rights" above.
Series 1991A Preferred Stock. In November 1991, the Company issued in a
public offering 2,290,000 shares of its 1991A Preferred Stock and 2,064,900 of
such shares remained outstanding at December 31, 1995. Such shares bear a
dividend rate of 7.125% per annum of the liquidation preference per share. The
shares of the Company's 1991A Preferred Stock are convertible at the option of
the holder at any time at a rate of 1.7256 shares of the Company's Common Stock
for each such share, which is equivalent to a conversion price of $28.975 per
share of the Company's Common Stock. The conversion rate is subject to
adjustment upon the occurrence of specified events. The shares of the Company's
1991A Preferred Stock are not subject to any sinking fund provisions and have
no preemptive rights. Such shares provide for a liquidation preference of $50
per share plus accrued and unpaid dividends, and are subject to redemption,
upon at least 30 days' notice, at the option of the Company at any time on or
after January 1, 1996 at a redemption price equal to $52.1375 per share,
declining to $50 per share on or after January 1, 2002, plus in each case
accrued and unpaid dividends; provided, however, that the shares of the
Company's 1991A Preferred Stock are not redeemable in part in the event that
full cumulative dividends have not been paid. Holders of the Company's 1991A
Preferred Stock do not have any voting rights, except as described under
"Voting Rights" above.
Junior Preferred Stock. The Company has issued the Rights to holders of the
Company's Common Stock entitling such holders, under specified conditions, to
purchase Junior Preferred Stock of the Company. If issued, each share of Junior
Preferred Stock would have a minimum liquidation preference of $100 per share
plus accrued and unpaid dividends and would be entitled to an aggregate payment
equal to the liquidation payment made on 100 shares of the Company's Common
Stock. In addition, each share of Junior Preferred Stock would have a minimum
preferential quarterly dividend payment of $1.00 per share but would be
entitled to an aggregate payment equal to the dividends declared on 100 shares
of the Company's Common Stock. The shares of Junior Preferred Stock would not
be entitled to the benefit of any sinking fund and would not be redeemable.
Each share of Junior Preferred Stock would have 100 votes and would vote
together with the Company's Common Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to and qualified in its entirety by reference to the Deposit Agreement and
Depositary Receipts relating to each series of the Preferred Stock which will
be filed or incorporated by reference as exhibits to the Registration Statement
to which this Prospectus pertains.
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<PAGE>
GENERAL
The Company may, at its option, elect to offer fractional interests in
Preferred Stock, rather than full Preferred Stock. In the event such option is
exercised, the Company will provide for the issuance by a Depositary to the
public of Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of the Preferred Stock) in a share of a
particular series of the Preferred Stock as described below.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000 (the "Depositary"). The Prospectus
Supplement relating to a series of Depositary Shares will set forth the name
and address of the Depositary. Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fractional interest in a Preferred Share underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock underlying such
Depositary Share (including dividend, voting, redemption, conversion and
liquidation rights).
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Company, issue temporary Depositary Receipts
substantially identical to (and entitling the holders thereof to all the rights
pertaining to) the definitive Depositary Receipts but not in definitive form.
Definitive Depositary Receipts will be prepared thereafter without unreasonable
delay, and temporary Depositary Receipts will be exchangeable for definitive
Depositary Receipts at the Company's expense.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the Depositary Receipts at the principal corporate trust
office of the Depositary (unless the related Depositary Shares have previously
been called for redemption), the owner of the Depositary Shares evidenced
thereby is entitled to delivery at such office, to or upon his order, of the
number of shares of Preferred Stock and any money or other property represented
by such Depositary Shares. Partial shares of Preferred Stock will not be
issued. If the Depositary Receipts delivered by the holder evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Preferred Stock to be withdrawn, the Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares. Holders of Preferred Stock thus
withdrawn will not thereafter be entitled to deposit such shares under the
Deposit Agreement or to receive Depositary Shares therefor. No assurance can be
given that a market will exist for the withdrawn Preferred Stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of the Preferred Stock, less any taxes required to be
withheld therefrom, to the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the number of such Depositary Shares owned by
such holders on the relevant record date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any holder
of Depositary Shares a fraction of one cent, and any balance not so distributed
shall be added to and treated as part of the next sum received by the
Depositary for distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the Preferred Stock shall be made available to holders of Depositary Shares.
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REDEMPTION OF DEPOSITED PREFERRED STOCK
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption at the option of the Company, the Depositary Shares will
be redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of the Preferred Stock held by
the Depositary. The Depositary shall mail notice of redemption not less than 30
and not more than 60 days prior to the date fixed for redemption to the record
holders of the Depositary Shares to be so redeemed at their respective
addresses appearing in the Depositary's books. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the Preferred Stock.
Whenever the Company redeems Preferred Stock held by the Depositary, the
Depositary will redeem as of the same redemption date the number of Depositary
Shares relating to the Preferred Stock so redeemed. If less than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot or pro rata as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING OF DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such instructions, and the
Company will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting Preferred Stock to the extent it does not receive specific
instructions from the holders of Depositary Shares relating to such Preferred
Stock.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Stock represented by such Depositary
Shares and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Stock. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Stock in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each share of Preferred Stock to an exchanging
owner of Depositary Shares will, upon such exchange, be the same as the
aggregate tax basis of the Depositary Shares exchanged therefor, and (iii) the
holding period for the Preferred Stock in the hands of an exchanging owner of
Depositary Shares who held such Depositary Shares as a capital asset at the
time of the exchange thereof for Preferred Stock will include the period during
which such person owned such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. A
Deposit Agreement may be terminated by the Company or the
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Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of
the Preferred Stock and any redemption of the Preferred Stock. Holders of
Depositary Shares will pay other transfer and other taxes and governmental
charges and such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
DESCRIPTION OF DEBT WARRANTS
The Company may issue, together with Debt Securities or separately, Warrants
for the purchase of Debt Securities. The Debt 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 Debt
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.
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GENERAL
The applicable Prospectus Supplement or Prospectus Supplements will describe
the terms of the Debt Warrants offered thereby, the Warrant Agreement relating
to such Debt Warrants and the Warrant Certificates representing such Debt
Warrants, including the following: (1) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such Debt
Warrants and the procedures and conditions relating to the exercise of such
Debt Warrants; (2) the designation and terms of any related Debt Securities
with which such Debt Warrants are issued and the number of such Debt Warrants
issued with each such Debt (3) the date, if any, on and after which such Debt
Warrants and the related Debt Securities will be separately transferable; (4)
the principal amount of Debt Securities purchasable upon exercise of each Debt
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
Debt 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 Debt Warrants are Original Issue Discount Debt Securities, a discussion of
Federal income tax considerations applicable thereto; and (7) whether the
Warrant Certificates representing such Debt 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 Debt Warrants, holders of Debt 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 DEBT WARRANTS
Each Debt 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. Debt 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
Debt Warrants will become void.
Debt 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 period 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
Debt Warrants.
FOREIGN CURRENCY RISKS
GENERAL
The Securities of a series may be denominated in and the principal of, and
any interest or premium on, such 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
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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 Security (or the Debt Security purchasable upon exercise of any Debt
Warrant), in the United States dollar-equivalent value of the principal
repayable at maturity of such Security (or the Security purchasable upon
exercise of such Debt 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 Debt 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 Debt 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 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
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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 the Securities to one or more underwriters for public
offering and sale by them or may sell the 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 the 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 the Securities for whom they may act as agent. Underwriters may
sell the 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.
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
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
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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, 1995, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by Dorsey
& Whitney LLP, 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 LLP and Lee R.
Mitau, Esq., General Counsel of the Company, and Dorsey & Whitney LLP will rely
as to all matters governed by New York law on the opinion of Davis Polk &
Wardwell. Dorsey & Whitney LLP 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.................................................... 3
Use of Proceeds........................................................... 3
Ratios of Earnings to Fixed Charges and to Combined Fixed Charges and
Preferred Stock Dividends................................................ 3
Description of Debt Securities............................................ 4
Description of Preferred Stock............................................ 10
Description of Depositary Shares.......................................... 14
Description of Debt Warrants.............................................. 17
Foreign Currency Risks.................................................... 18
Plan of Distribution...................................................... 20
Experts................................................................... 21
Validity of Securities.................................................... 21
</TABLE>
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$1,500,000,000
FIRST BANK SYSTEM, INC.
LOGO
DEBT SECURITIES,PREFERRED STOCK,DEPOSITARY SHARES AND DEBT WARRANTS
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PROSPECTUS
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MARCH , 1996
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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......................................... $ 240,690
Accountants' fees and expenses............................... 20,000
Attorneys' fees and expenses................................. 75,000
Trustee's and Depositary 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.................................................... $1,045,862*
==========
</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>
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<C> <S> <C>
1.1 Proposed form of Underwriting Agreement (incorporated by
reference to Exhibit 1.1 to the Company's Registration
Statement on Form S-3 (File No. 33-58521))
1.2 Proposed form of Distribution Agreement (incorporated by
reference to Exhibit 1.2 to the Company's Registration
Statement on Form S-3 (File No. 33-58521))
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)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
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 Debt Securities Warrant Agreement (incor-
porated by reference to Exhibit 4.5 to the Company's Reg-
istration Statement on Form S-3 (File No. 33-39303))
4.6 Proposed form of Debt Securities Warrant Certificate (in-
cluded as part of Exhibit 4.5)
4.7 Proposed Form of Certificate of Designations*
4.8 Proposed form of Deposit Agreement*
5.1 Opinion and consent of Dorsey & Whitney LLP*
12.1 Computation of ratio of earnings to fixed charges and to
combined fixed charges and preferred stock dividends*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Dorsey & Whitney LLP (included as part of Ex-
hibit 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>
- --------
*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.
II-2
<PAGE>
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-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 REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF MINNEAPOLIS, STATE OF MINNESOTA, ON MARCH 5, 1996.
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 REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSON IN THE CAPACITIES INDICATED
BELOW ON MARCH 5, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ John F. Grundhofer Chairman, President, Chief Executive
___________________________________________ Officer and Director (principal executive
John F. Grundhofer officer)
/s/ Susan E. Lester Executive Vice President and Chief
___________________________________________ Financial Officer (principal financial
Susan E. Lester officer)
/s/ David J. Parrin Senior Vice President and Controller
___________________________________________ (principal accounting officer)
David J. Parrin
Arthur D. Collins, Jr.* Director
___________________________________________
Arthur D. Collins, Jr.
Peter H. Coors* Director
___________________________________________
Peter H. Coors
Roger L. Hale* Director
___________________________________________
Roger L. Hale
Delbert W. Johnson* Director
___________________________________________
Delbert W. Johnson
Director
___________________________________________
Norman M. Jones
John H. Kareken* Director
___________________________________________
John H. Kareken
Richard L. Knowlton* Director
___________________________________________
Richard L. Knowlton
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
Jerry W. Levin* Director
___________________________________________
Jerry W. Levin
Kenneth A. Macke* Director
___________________________________________
Kenneth A. Macke
Marilyn Carlson Nelson* Director
___________________________________________
Marilyn Carlson Nelson
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
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE NO.
----------- ----------- --------
<C> <S> <C>
1.1 Proposed form of Underwriting Agreement (incorporated
by reference to Exhibit 1.1 to the Company's Registra-
tion Statement on Form S-3 (File No. 33-58521))
1.2 Proposed form of Distribution Agreement (incorporated
by reference to Exhibit 1.2 to the Company's Registra-
tion Statement on Form S-3 (File No. 33-58521))
4.1 Indenture dated as of October 1, 1991 between the Com-
pany and Citibank, N.A., as Senior Note Trustee (incor-
porated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated November 12, 1991)
4.2 Indenture dated as of October 1, 1991 between the Com-
pany and 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 Cur-
rent 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 Debt Securities Warrant Agreement (in-
corporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-3 (File No. 33-39303))
4.6 Proposed form of Debt Securities Warrant Certificate
(included as part of Exhibit 4.5)
4.7 Proposed form of Certificate of Designations*
4.8 Proposed form of Deposit Agreement*
5.1 Opinion and consent of Dorsey & Whitney LLP*
12.1 Computation of ratio of earnings to fixed charges and
to combined fixed charges and preferred stock divi-
dends*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Dorsey & Whitney LLP (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 un-
der the Trust Indenture Act of 1939 of Citibank, N.A.*
</TABLE>
- --------
*Filed herewith.
<PAGE>
Exhibit 4.7
FORM OF CERTIFICATE OF DESIGNATION TO
BE ADOPTED BY THE SECURITIES COMMITTEE
(BASED ON SERIES 1991-A)
CERTIFICATE OF THE VOTING POWERS, DESIGNATION,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF
$__________ CUMULATIVE PREFERRED STOCK, SERIES ___
($_______ Par Value)
OF
FIRST BANK SYSTEM, INC.
------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------
The undersigned DOES HEREBY CERTIFY that the following resolution was
duly adopted by the Securities Committee of the Board of Directors (the
"Committee") of First Bank System, Inc., a Delaware corporation (hereinafter
called the "Corporation"), at a meeting held on ____________________________:
RESOLVED that, pursuant to authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation (hereinafter,
as amended and restated to date, called the "Certificate of Incorporation"), and
pursuant to authority conferred upon the Committee by the Board of Directors at
a meeting duly held on ____________________________, the Committee hereby
provides for the issuance of a series of Preferred Stock of the Corporation
("Preferred Stock"), and hereby fixes the voting powers, designation, and
certain of the preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of such series, as follows:
(a) Designation. The designation of the series of Preferred Stock
created by this resolution shall be "$____________ Cumulative Preferred
Stock, Series __________" (hereinafter referred to as this "Series") and
the number of shares constituting this Series shall be _________________.
The number of authorized shares of this Series may be reduced by further
resolution duly adopted by the Board of Directors of the Corporation, the
Committee or any duly authorized committee of the Board of Directors of the
Corporation and
<PAGE>
by the filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such reduction has
been so authorized, but the number of authorized shares of this Series
shall not be increased.
(b) Dividends. (1) Dividend periods ("Dividend Periods") shall
commence on __________________, ___________________, ________________, and
________________ in each year and shall end on and include the day next
preceding the first day of the next Dividend Period. Such dividends shall
be cumulative from the date of original issue of shares of this Series and
shall be payable, when and as declared by the Board of Directors or by any
duly authorized committee of the Board of Directors of the Corporation, on
______________, ______________, _________________ and ______________ of
each year, commencing ____________________________. Each such dividend
shall be paid to the holders of record of shares of this Series as they
appear on the stock register of the Corporation on such record date, not
exceeding _____ days or less than _____ days preceding the payment date
thereof, as shall be fixed by the Board of Directors of the Corporation or
by any duly authorized committee of the Board of Directors of the
Corporation. Dividends on account of arrears for any past Dividend Periods
may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding
_____ days preceding the payment date thereof, as may be fixed by the Board
of Directors of the Corporation or by any duly authorized committee of the
Board of Directors of the Corporation.
(2) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
the shares of this Series for all dividend payment periods terminating on
or prior to the date of payment of such full cumulative dividends. When
dividends are not paid in full, as aforesaid, upon the shares of this
Series and any other Preferred Stock ranking on a parity as to dividends
with this Series, all dividends declared upon shares of this Series and any
other Preferred Stock ranking on a parity as to dividends with this Series
shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear
to each other the same ratio that accrued dividends per share on the shares
of this Series and such other Preferred Stock bear to each other. Except
as provided in the preceding sentence, unless full cumulative dividends on
all outstanding shares of this Series shall have been paid or declared and
set aside for payment for the then-current dividend payment period and all
past dividend payment periods, no dividends (other than a dividend in the
Common Stock, par value $1.25 per share, of the Corporation (the "Common
Stock"), or another stock ranking junior to this Series as to dividends and
upon liquidation) shall
-2-
<PAGE>
be declared or paid or set aside for payment or other distribution declared
or made upon the Common Stock or upon any other stock of the Corporation
ranking junior to or on a parity with this Series as to dividends or upon
liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to this Series as to dividends and upon
liquidation). Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments which may be in arrears.
(3) Dividends payable on this Series for each full Dividend Period
shall be computed by dividing the Dividend Rate by four (4). Dividends
payable on this Series for any period less than a full Dividend Period,
including the Initial Dividend Period (as defined in Section (c) below),
shall be computed on the basis of 30-day months, a 360-day year, and the
actual number of days elapsed in the period.
(c) Dividend Rate. The Dividend Rate on the shares of this Series
for the period (the "Initial Dividend Period") from the date of original
issue thereof (except that shares of this Series originally issued after
the date of original issue of the first ________________ shares of this
Series to be issued shall accrue dividends from the date of original issue
of such first ________________ shares) to and including _________________,
and for each Dividend Period thereafter, shall be $_____________ per annum
per share (excluding any accrued but unpaid dividends).
(d) Redemption.
(1) Optional Redemption. The shares of this Series shall not be
redeemable prior to ___________________. The Corporation, at its option,
may redeem shares of this Series, as a whole or in part, at any time or
from time to time on or after ___________________, at a redemption price as
set forth below (expressed as a percentage of the liquidation preference
thereof), plus, in each case, accrued and unpaid dividends thereon to the
date fixed for redemption:
Date of Redemption Redemption Price per Share
------------------ --------------------------
On or after _______________________
but prior to ______________________ _______%
-3-
<PAGE>
On or after _______________________
but prior to ______________________ _______%
On or after _______________________
but prior to ______________________ _______%
On or after _______________________
but prior to ______________________ _______%
On or after _______________________
but prior to ______________________ _______%
On or after _______________________
but prior to ______________________ _______%
On or after _______________________ 100%
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors of the Corporation, the Committee or
any duly authorized committee of the Board of Directors of the Corporation
and the shares to be redeemed shall be determined by lot or pro rata as may
be determined by the Board of Directors of the Corporation or any duly
authorized committee of the Board of Directors of the Corporation or by any
other method as may be determined by the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of
the Corporation in its sole discretion to be equitable, provided that such
method satisfies any applicable requirements of any securities exchange on
which this Series is listed.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than _____ nor more than _____ days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (i) the redemption date; (ii)
the number of shares of this Series to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that dividends on
the shares to be redeemed will cease to accrue on the redemption date.
-4-
<PAGE>
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the applicable redemption price),
dividends on the shares of this Series so called for redemption shall cease
to accrue, and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the applicable redemption
price) shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation, the Securities
Committee or any duly authorized committee of the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable redemption price.
In case fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
(5) Any shares of this Series which shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors of the Corporation, the Securities Committee or any duly
authorized committee of the Board of Directors of the Corporation.
(6) Notwithstanding the foregoing provisions of this Section (d), in
the event that full cumulative dividends on the shares of this Series have
not been paid, no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously redeemed, and the
Corporation shall not purchase or acquire any shares of this Series
otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of outstanding shares of this Series.
(e) Voting Rights. The shares of this Series shall not have any
voting powers either general or special, except as expressly required by
applicable law and except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of
the holders of at least 66-2/3% of all of the shares of this Series at the
time outstanding, voting separately as a class, shall be required to
authorize any amendment of the Certificate of Incorporation or of any
certificate amendatory thereof or supplemental thereto (including any
certificate of designation or any similar document relating to any series
of Preferred Stock) which will adversely affect the powers, preferences,
privileges or rights of this Series;
-5-
<PAGE>
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of
the holders of at least 66-2/3% of all of the shares of this Series and all
other series of Preferred Stock ranking on a parity with shares of this
Series, either as to dividends or upon liquidation, at the time
outstanding, voting as a single class without regard to series, shall be
required to issue, authorize or increase the authorized amount of, or to
issue or authorize any obligation or security convertible into or
evidencing the right to purchase, any additional class or series of stock
ranking prior to the shares of this Series as to dividends or upon
liquidation; and
(3) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends on the Preferred
Stock shall exist, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series (whether or not the holders of such
series of Preferred Stock would be entitled to vote for the election of
directors if such default in preference dividends did not exist), shall
have the right at such meeting, voting together as a single class without
regard to series, to the exclusion of the holders of Common Stock, to elect
two directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon the
Preferred Stock. Each director elected by the holders of shares of
Preferred Stock (herein called a "Preferred Director") shall continue to
serve as such director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a default in
preference dividends shall cease to exist. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders of
record of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for the purpose. So
long as a default in any preference dividends on the Preferred Stock shall
exist (A) any vacancy in the office of a Preferred Director may be filled
(except as provided in the following clause (B)) by an instrument in
writing signed by the remaining Preferred Director and filed with the
Corporation and (B) in the case of the removal of any Preferred Director,
the vacancy may be filled by the vote of the holders of the outstanding
shares of Preferred Stock, voting together as a single class without regard
to series, at the same meeting at which such removal shall be voted. Each
director appointed as aforesaid by the remaining Preferred Director shall
be deemed, for all purposes hereof, to be a Preferred Director. Whenever
the term of office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be reduced by
two. For the purposes hereof, a "default in preference dividends" on the
Preferred Stock shall be deemed to have occurred
-6-
<PAGE>
whenever the amount of accrued but unpaid dividends upon any series of the
Preferred Stock shall be equivalent to six full quarter-yearly dividends or
more, and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all shares of
Preferred Stock of each and every series then outstanding shall have been
paid to the end of the last preceding dividend period.
(f) Liquidation Rights.
(1) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of this Series shall
be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution of
assets shall be made on the Common Stock or on any other class of stock of
the Corporation ranking junior to this Series upon liquidation, dissolution
or winding up, the amount of $_________ per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and
unpaid thereon to the date of final distribution.
(2) For the purposes of this Section (f), a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation shall not include
the consolidation or merger of the Corporation with or into any other
corporation, or a merger of another corporation with or into the
Corporation, or any sale, lease or conveyance of all or any part of the
property or business of the Corporation.
(3) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (f), the holders
of this Series as such shall not be entitled to any further participation
in any distribution of assets of the Corporation.
(4) If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation available for
distribution to the holders of shares of this Series and of any other
shares of stock of the Corporation ranking on a parity with this Series
upon liquidation shall not be sufficient to pay in full all amounts to
which such holders are entitled pursuant to subsection (1) of this Section
(f), the holders of shares of this Series and of such other shares shall
share ratably in any such distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which they are
entitled.
(g) Conversion or Exchange. The holders of shares of this Series
shall not have any rights herein to convert such shares into or exchange such
shares for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
-7-
<PAGE>
(h) Relative Rank. For purposes of this resolution, any stock of any
class or classes of the Corporation shall be deemed to rank:
(1) Prior to the shares of this Series, either as to dividends or
upon liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of this Series;
(2) On a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or sinking fund provisions,
if any, be different from those of this Series, if the holders of such
stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the
other, as between the holders of such stock and the holders of shares of
this Series; and
(3) Junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders
of shares of such class or classes.
The outstanding shares of the Corporation's _______________ Preferred
Stock and ________________ Preferred Stock shall be deemed to rank on a parity
with the outstanding shares of this Series with respect to the payment of
dividends and upon liquidation. The outstanding shares of the Corporation's
Series A Junior Participating Preferred Stock shall be deemed to rank junior to
the outstanding shares of this Series with respect to the payment of dividends
and upon liquidation.
IN WITNESS WHEREOF, said First Bank System, Inc. has caused this
certificate to be signed by its __________________________, and attested by its
_______________________, this ______ day of ______________________.
FIRST BANK SYSTEM, INC.
By _____________________________________
Attested by:
____________________
-8-
<PAGE>
Exhibit 4.8
- -----------------------------------------------------------------------
FIRST BANK SYSTEM, INC.
___________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES DESCRIBED HEREIN
_______________
Deposit Agreement
_______________
Dated as of __________,1996
- -----------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------------
<S> <C> <C>
Page
------
PARTIES........................................................................ 1
RECITALS....................................................................... 1
ARTICLE I
Definitions
Certificate.................................................................... 1
Company........................................................................ 1
Deposit Agreement.............................................................. 1
Depositary..................................................................... 1
Depositary Shares.............................................................. 1
Depositary's Agent............................................................. 1
Depositary's Office............................................................ 2
Receipt........................................................................ 2
Record Holder.................................................................. 2
Registrar...................................................................... 2
Stock.......................................................................... 2
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
Section 2.01 Form and Transfer of Receipts ................................... 2
Section 2.02 Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof .................................. 3
Section 2.03 Redemption of Stock ............................................. 4
</TABLE>
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<TABLE>
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Section 2.04. Registration of Transfer of Receipts ......................... 5
Section 2.05. Split-ups and Combinations of Receipts;
Surrender of Depositary Shares and Withdrawl Stock ........... 6
Section 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts ................. 6
Section 2.07. Lost Receipts, etc ........................................... 7
Section 2.08. Cancellation and Destruction of Surrendered Receipts ......... 7
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
Section 3.01. Filing Proofs, Certificates and Other Information ........... 7
Section 3.02. Payment of Taxes or Other Governmental Charges .............. 8
Section 3.03. Warranty as to Stock ........................................ 8
ARTICLE IV
The Deposited Securities; Notices
Section 4.01. Cash Distributions .......................................... 8
Section 4.02. Distributions Other than Cash ............................... 8
Section 4.03. Subscription Rights, Preferences or Privileges .............. 9
Section 4.04. Notice of Dividends, etc.; Fixing of Record
Date for Holders of Receipts ................................ 9
Section 4.05. Voting Rights ............................................... 10
Section 4.06. Changes Affecting Deposited Stock and
Reclassification, Recapitalizations, etc. ................... 10
Section 4.07. Inspection of Reports ....................................... 11
Section 4.08. Lists of Holders ............................................ 12
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ARTICLE V
The Depositary, the Depositary's Agents,
The Registrar and the Company
Section 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar........................................... 12
Section 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
any Registrar or the Company........................ 12
Section 5.03. Obligations of the Depositary, the
Depositary's Agents, any Registrar and
the Company......................................... 13
Section 5.04. Resignation and Removal of the Depositary;
Appointments of Successor Depositary................ 14
Section 5.05. Corporate Notices and Reports....................... 15
Section 5.06. Indemnification by the Company...................... 15
Section 5.07. Charges and Expenses................................ 15
ARTICLE VI
Amendment and Termination
Section 6.01. Amendment........................................... 16
Section 6.02. Termination......................................... 16
ARTICLE VII
Miscellaneous
Section 7.01. Counterparts........................................ 16
Section 7.02. Exclusive Benefit of Parties........................ 16
Section 7.03. Invalidity of Provisions............................ 16
Section 7.04. Notices............................................. 16
Section 7.05. Depositary's Agents................................. 17
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Section 7.06. Holders of Receipts Are Parties..................... 18
Section 7.07. Governing Law....................................... 18
Section 7.08. Inspection of Deposit Agreement..................... 18
Section 7.09. Headings............................................ 18
</TABLE>
Testimonium .....................................................
Signatures .....................................................
Exhibits A: Form of Reverse of Depositary Receipt
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DEPOSIT AGREEMENT
This Deposit Agreement (this "Agreement") is made and entered into as
of _____________________, 1996 among First Bank System, Inc., a Delaware
corporation, and _________________, a ___________ corporation, and the holders
from time to time of the shares described herein.
RECITALS
--------
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [describe series of] Preferred
Stock, without par value, of First Bank System, Inc. with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLES I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean First Bank System, Inc., a Delaware corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean _________________, and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
[describe fraction] interest in a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
<PAGE>
"Depositary's Office" shall mean the office of the Depositary at
________, in ________, at which at any particular time its depositary receipt
business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Depositary Shares as herein
provided.
"Stock" shall mean the Company's [describe series of] Preferred Stock,
without par value.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery
Transfer, Surrender and Redemption of Receipts
Section 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office described in the third paragraph of Section 2.02, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so
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exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to the Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Depositary
Share shall be registered on the books of the Depositary as provided in Section
2.04, the Depositary may, notwithstanding any notice to the contrary, treat the
record holder thereof at such time as the absolute owner thereof for the purpose
of determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a
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written order of the Company directing the Depositary to execute and deliver to,
or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares relating to such
deposited Stock. The Depositary Shares, upon issuance, delivery and payment
therefor will be validly issued, fully paid and nonassessable.
Deposited Stock shall be held by the Depositary at the Depositary's
office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock so deposited on the books of the Company in the name of the Depositary or
its nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares relating to the Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's Office or such
other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
__________ shares of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall elect
to redeem shares of Stock in accordance with the provisions of the Certificate,
it shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption , by first class mail, postage
prepaid, not less than 30 nor more than 60 days prior to the date fixed for
redemption in accordance with Section 3.4 of the Certificate. On the date of
such redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class paid postage prepaid, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the Redemption Date"), to the record holders of the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither the failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be
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redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock underlying the Depositary
Shares to be redeemed will cease to accumulate at the close of business on such
Redemption Date. In case less than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accumulate, the
Depositary Shares being redeemed from such proceeds shall be deemed no longer to
be outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to [insert fraction referred to in definition of
"Depositary Shares"] of the redemption price per share paid in respect of the
shares of Stock plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
Section 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Depositary Shares upon any surrender of
the Receipt or Receipts evidencing such Depositary Shares by the holder in
person or by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
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Section 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting of a split-up or combination of such Receipt or
Receipts, and subject to the Terms and Conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered. Any holder of at least
[insert reciprocal of fraction referred to in definition of "Depositary Shares"]
Depositary Shares may withdraw the number of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, relating
thereto by surrendering Receipts evidencing such Depositary Shares at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, underlying the Depositary Shares so surrendered for
withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by a holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares relating to
other than a number of whole shares of Stock, the Depositary shall at the same
time, in addition to such number of whole shares of Stock and such money and
other property, if any, to be so withdrawn, deliver to such holder, or (subject
to Section 3.02) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and
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delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
Section 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
Section 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
Section 3.01. Filing Proof, Certificates and Other Information. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary
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Shares or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
Section 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Depositary Shares shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.07.
Registration of transfer of any Depositary Share or any withdrawal of Stock and
delivery of all money or other property, if any, underlying such Depositary
Share may be refused until any such payment due is made, and any dividends or
other distributions may be withheld or all or any part of the Stock or other
property underlying such Depositary Share and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Depositary Share remaining liable
for any deficiency.
Section 3.03. Warrants as to Stock. The Company hereby represents
and warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of the Receipts.
ARTICLE IV
The Deposited Securities; Notices
Section 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the record
holders of Depositary Shares on the record date fixed pursuant to Section 4.04
such amounts of such dividend or distribution as are, as nearly as practicable,
in proportion to the respective number of Depositary Shares held by such
holders; provided, however; that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Depositary Shares then outstanding.
Section 4.02. Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Stock, the Depositary
shall,
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subject to Sections 3.01 and 3.02, distribute to the record holders of
Depositary Shares on the record date fixed pursuant to Section 4.04 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper
the net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Depositary Shares as provided by Section 4.01 in
the case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act of 1933 or that such registration is not required.
Section 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to the holders of Depositary Shares by the
issue of warrants or otherwise, or (ii) if and to the extent so instructed by
holders of Depositary Shares who do not desire to exercise such rights
preferences or privileges, then the Depositary, in its discretion (with the
approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights preferences or privileges available may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Depositary Shares
entitled thereto as provided by Section 4.01 in the case of a
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distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges, unless the Company shall have provided
an opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act of 1933 or that such registration is
not required.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Depositary Shares any right, preference or privilege
to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective, or unless the offering and
sale of such securities to such holders may be made without registration under
the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
right, preferences or privileges.
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Depositary Shares. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to receive notice of such
meeting.
Section 4.05. Voting Rights. Upon receipt of notice of any meeting
at which holders of the Stock are entitled to vote, the Depositary shall, as
soon as
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practicable thereafter, mail to the record holders of Depositary Shares a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instruction set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Depositary Share, the Depositary will abstain
from voting (but, at its discretion, not from appearing at any meeting with
respect to such Stock unless directed to the contrary by the holders of all the
Depositary Shares) to the extent of the Stock underlying such Depositary Share.
Section 4.06. Changes Affecting Deposited Stock and
Reclassifications, Recapitalizations, etc. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion, upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it is a party,
the Depositary may in its discretion, with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments in (a) the fraction of
an interest in one share of Stock underlying one Depositary Share and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Stock, in each case as may be necessary fully to reflect the effects of
such change in par or liquidation value, split up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
Section 4.07. Inspection of Reports. The Depositary shall make
available for inspection by any holder of Depositary Shares at the Depositary's
Office, and at such other places as it may from time to time deem advisable, any
reports and communications received from the Company which are received by the
Depositary
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<PAGE>
as the holder of the Stock, and the Depositary will forward to the record
holders of the Depositary Shares, at their respective addresses, any such
reports or communications that are not required to be delivered by the Company
to the record holders of the Depositary Shares pursuant to Section 5.05.
Section 4.08. List of Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the name, address and holdings of Depositary Shares of all persons in
whose names Depositary Shares are registered on the books of the Depositary.
ARTICLE V
The Depositary, The Depositary's Agents,
The Registrar and The Company
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office, or at any Registrar's
Office, at which the Depositary shall have complete access to all books and
records maintained on the Company's behalf, facilities for the execution and
delivery, surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of the Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration, and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the record holders of
Depositary Shares.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock underlying such Depositary Shares shall be listed on the New York Stock
Exchange or other securities exchange, the Depositary may, with the approval of
the Company, appoint a Registrar for registration of such Receipts or Depositary
Shares in accordance with any requirements of such Exchange or such other
exchange. Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange or such other exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of Company.
Section 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, any Registrar of the Company. Neither the Depositary
nor
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<PAGE>
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Shares if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority, or in the case of the
Depositary, any Depositary Agent or any Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Depositary
Share (i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's Agents,
any Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Depositary Shares other
than for its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity reasonably satisfactory to it against all expense and
liability be furnished.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Depositary Share
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and
to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote, as long as any such action or non-action is taken in good
faith. The Depositary
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<PAGE>
undertakes, and any Registrar shall be required to undertake, to perform such
duties and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary or any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary; Appoint-ment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided. The Depositary may
at any time be removed by the Company by notice of such removal delivered to the
Depositary, such removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided. In
case the Depositary acting hereunder shall at any time resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation or
removal, as the case may be, appoint a successor Depositary, which shall be a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000. If no
successor Depositary shall have been so appointed within 60 days after delivery
of such notice, the resigning or removed Depositary may petition any court of
competent jurisdiction for the appointment of a successor Depositary. Every
successor Depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor and
shall deliver to such successor a list of the record holders of all outstanding
Depositary Shares. Any successor Depositary shall promptly mail notice of its
appointment to the record holder of Depositary Shares.
Any corporation into or with which the Depositary may merge,
consolidate or be converted shall be the successor of such Depositary without
the execution or filing of any document or, any further act. Such successor
Depositary
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<PAGE>
may authenticate the Receipts in the name of the predecessor Depositary or in
the name of the successor Depositary.
Section 5.05. Corporate Notices and Resorts. The Company agrees that
it will transmit to the record holders of Depositary Shares, in each case at the
address furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, the rules
of any securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company' Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of the Stock. Such
transmission will be at the Company's expense
Section 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless form, any loss, liability or expense (including the
costs and expense of defending itself) which may arise out of (i) acts performed
or omitted in connection with this Deposit Agreement and the Depositary Shares
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence or bad faith on the respective parts of any such person or persons,
or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
Section 5.07. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of a Depositary Shares the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary, any Depositary's Agent hereunder and any
Registrar (including, in each case, fees and expense of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company at such times as the Company
and the Depositary may agree.
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<PAGE>
ARTICLE VI
Amendment and Termination
Section 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary or Registrar, which shall go into
effect not sooner than three months after notice thereof to the holders of the
Depositary Shares) which shall materially and adversely alter the rights of the
existing holders of the Depositary Shares will be effect unless such amendment
shall have been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Every holder of an outstanding Depositary Share at the
time any such amendment becomes effective shall be deemed, by continuing to hold
such Depositary Share, to consent and agree to such amendment and to be bound by
this Deposit Agrees as amended thereby.
Section 6.02. Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 or (ii) there shall have been
made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding-up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary, and Depositary's
Agent and any Registrar under Section 5.06 and 5.07.
ARTICLE VII
Miscellaneous
Section 7.01. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed and original, but all such counterparts taken together shall
constitute one and the same instrument.
Section 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successor
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
-16-
<PAGE>
Section 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex,
confirmed by letter, addressed to the Company at First Bank Place, 601 Second
Avenue South, Minneapolis, Minnesota 55402, to the attention of ___________, or
at any other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex, confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
_______________, or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any record holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or by telegram or
telecopy confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telecopy shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telecopy) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telecopy received by it from the
other or from any holder of a Depositary Share, notwithstanding that such
telegram or telecopy shall not subsequently be confirmed by letter or as
aforesaid.
Section 7.05. Depositary Agents. The Depositary may from time to time,
with the prior approval of the Company, appoint Depositary Agents to act in any
respect of the Depositary for the purposes of this Deposit Agreement and may at
any time appoint additional Depositary Agents and vary or terminate the
appointment of such Depositary Agents.
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<PAGE>
Section 7.06. Holders of Receipts Are Parties. The holders of
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
Section 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE.
Section 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Depositary Share.
Section 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
FIRST BANK SYSTEM, INC.
By
------------------------
Authorized Officer
[Name of Depositary]
By
------------------------
Authorized Officer
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<PAGE>
Exhibit 24.1
Page 1 of 2 of Power of Attorney to First Bank System, Inc. Registration
- ------------------------------------------------------------------------
Statement on Form S-3.
- ----------------------
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lee R. Mitau, Susan E. Lester 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.
Signature Title Date
--------- ----- ----
/s/ John F. Grundhofer
- -------------------------- Chairman, President, Chief March 5, 1996
John F. Grundhofer Executive Officer and Director
(principal executive officer)
/s/ Susan E. Lester
- -------------------------- Executive Vice President March 5, 1996
Susan E. Lester Chief Financial Officer
(principal financial officer)
/s/ David J. Parrin
- -------------------------- Senior Vice President and March 5, 1996
David J. Parrin Controller (principal
accounting officer)
/s/ Arthur D. Collins, Jr.
- -------------------------- Director March 5, 1996
Arthur D. Collins, Jr.
/s/Peter H. Coors
- -------------------------- Director March 5, 1996
Peter H. Coors
/s/ Roger L. Hale
- -------------------------- Director March 5, 1996
Roger L. Hale
/s/ Delbert W. Johnson
- -------------------------- Director March 5, 1996
Delbert W. Johnson
- -------------------------- Director March 5, 1996
Norman M. Jones
<PAGE>
Page 2 of 2 of Power of Attorney to First Bank System, Inc. Registration
- ------------------------------------------------------------------------
Statement on Form S-3.
- ----------------------
/s/ John H. Kareken
- -------------------------- Director March 5, 1996
John H. Kareken
/s/ Richard L. Knowlton
- -------------------------- Director March 5, 1996
Richard L. Knowlton
/s/ Jerry W. Levin
- -------------------------- Director March 5, 1996
Jerry W. Levin
/s/ Kenneth A. Macke
- -------------------------- Director March 5, 1996
Kenneth A. Macke
/s/ Marilyn Carlson Nelson
- -------------------------- Director March 5, 1996
Marilyn Carlson Nelson
/s/ Edward J. Phillips
- -------------------------- Director March 5, 1996
Edward J. Phillips
/s/ James J. Renier
- -------------------------- Director March 5, 1996
James J. Renier
/s/ S. Walter Richey
- -------------------------- Director March 5, 1996
S. Walter Richey
/s/ Richard L. Robinson
- -------------------------- Director March 5, 1996
Richard L. Robinson
/s/ Richard L. Schall
- -------------------------- Director March 5, 1996
Richard L. Schall
/s/ Lyle E. Schroeder
- -------------------------- Director March 5, 1996
Lyle E. Schroeder
-2-
<PAGE>
Exhibit A to Deposit Agreement
Depositary Receipt No. _________________________________
DEPOSITARY SHARES
(Each Depositary Share represents
a _____ interest in a share of
____% Cumulative Preferred
Stock, Series ____
DEPOSITARY RECEIPT FOR SHARES
OF ___% PREFERRED STOCK SERIES ___
OF FIRST BANK SYSTEM, INC.
(INCORPORATED UNDER THE LAWS OF DELAWARE)
______________ as depositary (hereinafter called the "Depositary"), hereby
certifies that ___________________________________, or registered assigns IS THE
OWNER OF __________________
DEPOSITARY SHARES
representing deposited Shares of ___% Cumulative Preferred Stock, Series ___
(herein called "Shares") of First Bank System, Inc., incorporated under the laws
of Delaware (herein called the "Company"). At the date hereof, each Depositary
Share represents a ___ interest in a share of ___% Cumulative Preferred Stock,
Series ___, which is either deposited or subject to deposit under the deposit
agreement at the Corporate Trust Office of the Depositary (herein called the
"Depositary").
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS:
[ADDRESS]
This Depositary Receipt is one of an issue (herein called "Receipts"), all
issued and to be issued upon the terms and conditions set forth in the deposit
agreement, dated as of _________, 1996, (herein called the "Deposit Agreement"),
by and among the Company, the Depositary, and all Owners and holders from time
to time of Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and become bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights of Owners and
holders of the Receipts and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder. Copies of the Deposit Agreement are on file at the Depositary's
Corporate Trust Office in [address].
Dated: ____________ [NAME OF DEPOSITARY]
By _______________________
Authorized Officer
<PAGE>
Exhibit 5.1
[Letterhead of Dorsey & Whitney LLP]
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, in one or more series, of (i) its unsecured debt securities, which may
be either senior debt securities (the "Senior Debt Securities") or unsecured
subordinated debt securities (the "Subordinated Debt Securities" and, together
with the Senior Debt Securities, the "Debt Securities"); (ii) shares of its
preferred stock (the "Preferred Stock"); (iii) depositary shares (the
"Depositary Shares") representing fractional shares of Preferred Stock and
evidenced by depositary receipts; and (iv) warrants to purchase Debt Securities
(the "Debt Warrants") in an aggregate principal amount not to exceed
$1,500,000,000 (the Debt Securities, Preferred Stock, Depositary Shares and Debt
Warrants are hereinafter collectively referred to as the "Securities").
We have examined such documents, including resolutions of the Board of
Directors adopted on February 15, 1995 (the "Financing Resolution") and
resolutions of the Board of Directors adopted on February 22, 1996 (the
"Preferred Stock Resolutions") (the Financing Resolutions and the Preferred
Stock Resolutions are hereinafter collectively referred to as the
"Resolutions"), 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,
<PAGE>
First Bank System, Inc.
March 5, 1996
Page 2
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.
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 Debt
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 Debt Warrants have been
specified in a Warrant Agreement executed and delivered by an Authorized Officer
(as defined in the Financing Resolution), in substantially the form incorporated
by reference as Exhibit 4.5 to the Registration Statement, the Debt 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 Debt Warrants.
3. When the specific terms of a series of Preferred Stock have been
specified in a Certificate of Designations duly adopted by the Securities
Committee (as defined in the Preferred Stock Resolution) of the Board of
Directors, in substantially the form filed as Exhibit 4.7 to the Registration
Statement, and such Certificate of Designations has been duly filed with the
Secretary of State of Delaware, such series of Preferred Stock will have been
duly authorized by all requisite corporate action and, upon issuance, delivery
and
<PAGE>
First Bank System, Inc.
March 5, 1996
Page 3
payment therefor as described in the Registration Statement, will be validly
issued, fully paid and nonassessable.
4. When the specific terms of a series of Depositary Shares have been
specified in a Deposit Agreement executed and delivered by an Authorized
Officer, in substantially the form filed as Exhibit 4.8 to the Registration
Statement, the Depositary Shares established in such Deposit Agreement will have
been duly authorized by all requisite corporate action and, upon issuance,
delivery and payment therefor as described in the Registration Statement, will
be validly issued, fully paid and nonassessable.
The opinions set forth above are subject to the following
qualifications and exceptions:
(a) Our opinions in paragraphs 1 and 2 above 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 in paragraphs 1 and 2 above 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 Resolutions referred to above will not have been modified or rescinded,
there will not have occurred any change in the law affecting the
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
<PAGE>
First Bank System, Inc.
March 5, 1996
Page 4
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.
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: March 5, 1996
Very truly yours,
/s/ Dorsey & Whitney LLP
CFS
<PAGE>
EXHIBIT 12.1
<TABLE>
<CAPTION>
Computation of Ratio of Earnings to Fixed Charges
Year Ended December 31 (Dollars in Millions) 1995 1994 1993 1992 1991
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings
1. Net income from continuing operations before cumulative effect....... $ 568.1 $ 313.5 $ 360.7 $ 213.0 $ 263.4
2. Applicable income taxes.............................................. 334.3 191.8 198.6 115.7 30.3
-----------------------------------------------------
3. Income before taxes (1 + 2).......................................... $ 902.4 $ 505.3 $ 559.3 $ 328.7 $ 293.7
-----------------------------------------------------
4. Fixed charges
a. Interest expense excluding interest on deposits................... $ 398.3 $ 271.4 $ 148.0 $ 155.4 $ 228.3
b. Portion of rents representative of interest and amortization
of debt expense................................................... 29.0 30.2 34.8 36.7 34.4
-----------------------------------------------------
c. Fixed charges excluding interest on deposits (4a + 4b)............ 427.3 301.6 182.8 192.1 262.7
d. Interest on deposits.............................................. 706.7 597.3 648.3 797.7 1,125.9
-----------------------------------------------------
e. Fixed charges including interest on deposits (4c + 4d)............ $1,134.0 $ 898.9 $ 831.1 $ 989.8 $1,388.6
-----------------------------------------------------
5. Amortization of interest capitalized................................. $ -- $ -- $ -- $ .3 $ .3
6. Earnings excluding interest on deposits (3 + 4c + 5)................. 1,329.7 806.9 742.1 521.1 556.7
7. Earnings including interest on deposits (3 + 4e + 5)................. 2,036.4 1,404.2 1,390.4 1,318.8 1,682.6
8. Fixed charges excluding interest on deposits (4c).................... 427.3 301.6 182.8 192.1 262.7
9. Fixed charges including interest on deposits (4e).................... 1,134.0 898.9 831.1 989.8 1,388.6
Ratio of Earnings to Fixed Charges
10. Excluding interest on deposits (line 6/line 8)...................... 3.11 2.68 4.06 2.71 2.12
11. Including interest on deposits (line 7/line 9)...................... 1.80 1.56 1.67 1.33 1.21
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Dividends
Year Ended December 31 (Dollars in Millions) 1995 1994 1993 1992 1991
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings
1. Net income from continuing operations before cumulative effect....... $ 568.1 $ 313.5 $ 360.7 $ 213.0 $ 263.4
2. Applicable income taxes.............................................. 334.3 191.8 198.6 115.7 30.3
-----------------------------------------------------
3. Income before taxes (1 + 2).......................................... $ 902.4 $ 505.3 $ 559.3 $ 328.7 $ 293.7
-----------------------------------------------------
4. Fixed charges and preferred dividends:
a. Interest expense excluding interest on deposits................... $ 398.3 $ 271.4 $ 148.0 $ 155.4 $ 228.3
b. Portion of rents representative of interest and amortization
of debt expense................................................... 29.0 30.2 34.8 36.7 34.4
-----------------------------------------------------
c. Fixed charges excluding interest on deposits (4a + 4b)............ 427.3 301.6 182.8 192.1 262.7
d. Interest on deposits.............................................. 706.7 597.3 648.3 797.7 1,125.9
-----------------------------------------------------
e. Fixed charges including interest on deposits (4c + 4d)............ $1,134.0 $ 898.9 $ 831.1 $ 989.8 $1,388.6
-----------------------------------------------------
f. Preferred stock dividends......................................... $ 7.5 $ 12.6 $ 29.2 $ 31.6 $ 28.8
g. Effective tax rate (2/3).......................................... 37.05% 37.96% 35.51% 35.20% 10.32%
h. Preferred dividend factor on pretax basis (4f/(100%-4g)).......... $ 11.9 $ 20.3 $ 45.3 $ 48.8 $ 32.1
5. Amortization of interest capitalized................................. -- -- -- .3 .3
6. Earnings excluding interest on deposits (3 + 4c + 5)................. 1,329.7 806.9 742.1 521.1 556.7
7. Earnings including interest on deposits (3 + 4e + 5)................. 2,036.4 1,404.2 1,390.4 1,318.8 1,682.6
8. Fixed charges and preferred dividends excluding interest on
deposits (4c + 4h).................................................. 439.2 321.9 228.1 240.9 294.8
9. Fixed charges and preferred dividends including interest on
deposits (4e + 4h).................................................. 1,145.9 919.2 876.4 1,038.6 1,420.7
Ratio of Earnings to Combined Fixed Charges and Preferred Dividends:
10. Excluding interest on deposits (line 6/line 8)...................... 3.03 2.51 3.25 2.16 1.89
11. Including interest on deposits (line 7/line 9)...................... 1.78 1.53 1.59 1.27 1.18
- ---------------------------------------------------------------------------------------------------------------------------------
</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) and related Prospectus of First Bank System,
Inc. for the registration of $1.5 billion of debt securities, preferred stock,
depositary shares and warrants to purchase debt securities and to the
incorporation by reference therein of our report dated January 9, 1996 (except
for Note C, as to which the date is February 16, 1996), with respect to the
consolidated financial statements of First Bank System, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
March 1, 1996
<PAGE>
Exhibit 24.1
Page 1 of 2 of Power of Attorney to First Bank System, Inc. Registration
- ------------------------------------------------------------------------
Statement on Form S-3.
- ----------------------
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lee R. Mitau, Susan E. Lester 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.
Signature Title Date
--------- ----- ----
/s/ John F. Grundhofer
- -------------------------- Chairman, President, Chief March 5, 1996
John F. Grundhofer Executive Officer and Director
(principal executive officer)
/s/ Susan E. Lester
- -------------------------- Executive Vice President March 5, 1996
Susan E. Lester Chief Financial Officer
(principal financial officer)
/s/ David J. Parrin
- -------------------------- Senior Vice President and March 5, 1996
David J. Parrin Controller (principal
accounting officer)
/s/ Arthur D. Collins, Jr.
- -------------------------- Director March 5, 1996
Arthur D. Collins, Jr.
/s/Peter H. Coors
- -------------------------- Director March 5, 1996
Peter H. Coors
/s/ Roger L. Hale
- -------------------------- Director March 5, 1996
Roger L. Hale
/s/ Delbert W. Johnson
- -------------------------- Director March 5, 1996
Delbert W. Johnson
- -------------------------- Director March 5, 1996
Norman M. Jones
<PAGE>
Page 2 of 2 of Power of Attorney to First Bank System, Inc. Registration
- ------------------------------------------------------------------------
Statement on Form S-3.
- ----------------------
/s/ John H. Kareken
- -------------------------- Director March 5, 1996
John H. Kareken
/s/ Richard L. Knowlton
- -------------------------- Director March 5, 1996
Richard L. Knowlton
/s/ Jerry W. Levin
- -------------------------- Director March 5, 1996
Jerry W. Levin
/s/ Kenneth A. Macke
- -------------------------- Director March 5, 1996
Kenneth A. Macke
/s/ Marilyn Carlson Nelson
- -------------------------- Director March 5, 1996
Marilyn Carlson Nelson
/s/ Edward J. Phillips
- -------------------------- Director March 5, 1996
Edward J. Phillips
/s/ James J. Renier
- -------------------------- Director March 5, 1996
James J. Renier
/s/ S. Walter Richey
- -------------------------- Director March 5, 1996
S. Walter Richey
/s/ Richard L. Robinson
- -------------------------- Director March 5, 1996
Richard L. Robinson
/s/ Richard L. Schall
- -------------------------- Director March 5, 1996
Richard L. Schall
/s/ Lyle E. Schroeder
- -------------------------- Director March 5, 1996
Lyle E. Schroeder
-2-
<PAGE>
EXHIBIT 25.1
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, 1995-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 1st day of
March, 1996.
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,
1995, 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.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin...............$ 7,451,000
Interest-bearing balances............ 9,256,000
Held-to-maturity securities.......... 0
Available-for-sale securities........ 15,587,000
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.................... 3,981,000
Securities purchased under
agreements to resell.................. 423,000
Loans and lease financing receiv-
ables:
Loans and Leases, net of un-
earned income.....$145,221,000
LESS: Allowance for loan
and lease losses.. 4,403,000
------------
Loans and leases, net of un-
earned income, allowance,
and reserve........................ 140,818,000
Trading assets......................... 28,407,000
Premises and fixed assets (includ-
ing capitalized leases)............... 3,454,000
Other real estate owned................ 849,000
Investments in unconsolidated
subsidiaries and associated com-
panies................................ 1,181,000
Customers' liability to this bank
on acceptances outstanding............ 1,542,000
Intangible assets...................... 14,000
Other assets........................... 7,147,000
------------
TOTAL ASSETS...........................$220,110,000
============
LIABILITIES
Deposits:
In domestic offices...................$ 35,377,000
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Noninterest-
bearing.............$ 13,214,000
Interest-
bearing............. 22,163,000
------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs................................ 121,599,000
Noninterest-
bearing...............8,014,000
Interest-
bearing.............113,585,000
-----------
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............ 1,852,000
Securities sold under agree-
ments to repurchase................ 556,000
Trading liabilities................... 17,544,000
Other borrowed money:
With original maturity of one
year or less........................ 7,740,000
With original maturity of more
than one year....................... 5,788,000
Mortgage indebtedness and obli-
gations under capitalized leases..... 95,000
Bank's liability on acceptances
executed and outstanding............. 1,559,000
Subordinated notes and
debentures........................... 4,700,000
Other liabilities..................... 8,483,000
------------
TOTAL LIABILITIES..................... $205,293,000
------------
EQUITY CAPITAL
Common stock.......................... $ 751,000
Surplus............................... 6,744,000
Undivided profits and capital re-
serves............................... 7,816,000
Net unrealized holding gains (losses)
on available-for-sale securities..... 62,000
Cumulative foreign currency
translation adjustments.............. (556,000)
------------
TOTAL EQUITY CAPITAL.................. $ 14,817,000
------------
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL....................... $220,110,000
============
</TABLE>
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.
PEI-YUAN CHIA
WILLIAM R.RHODES
PAUL J. COLLINS
DIRECTORS
<PAGE>
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.
PEI-YUAN CHIA
WILLIAM R. RHODES
PAUL J. COLLINS
DIRECTORS
