<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1996
REGISTRATION NO. 333-1455
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 1
TO
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. [_]
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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 APRIL 3, 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 APRIL , 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.
6
<PAGE>
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.
7
<PAGE>
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
8
<PAGE>
of or interest on, any Debt Security, (2) reduce the principal amount of, or
premium or interest on, any Debt Security, (3) change any obligation of the
Company to pay additional amounts, (4) reduce the amount of principal of an
Original Issue Discount Debt Security due and payable upon acceleration of the
Maturity thereof, (5) change the place of payment where or coin or currency in
which the principal of, or any premium or interest on, any Debt Security is
payable, (6) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security, (7) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
the Holders of which is required for modification or amendment of the Indenture
or for waiver of compliance with certain provisions of the applicable Indenture
or for waiver of certain defaults, (8) modify the provisions of the
Subordinated Note Indenture with respect to the subordination of any
Subordinated Notes in a manner adverse to the Holders thereof, or (9) modify
any of the above provisions. (Section 902)
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the applicable
Indenture. (Section 1009) The Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of each series may, on
behalf of the Holders of all Debt Securities of that series, waive any past
default under the applicable Indenture with respect to Debt Securities of that
series, except a default (1) in the payment of principal of, or any premium or
interest on, any Senior Notes, or (2) in respect of a covenant or provision of
the applicable Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected. (Section 513)
Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt Securities, (1)
the principal amount of an Original Issue Discount Debt Security that will be
deemed to be Outstanding will be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof to such date, and (2) the principal amount of a Debt
Security denominated in a foreign currency or currency unit that will be deemed
to be Outstanding will be the United States dollar equivalent, determined as of
the date of original issuance of such Debt Security, of the principal amount of
such Debt Security (or, in the case of an Original Issue Discount Debt
Security, the United States dollar equivalent, determined as of the date of
original issuance of such Debt Security, of the amount determined as provided
in (1) above). (Section 101)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under either Indenture, may consolidate or merge with or into,
or convey, transfer or lease its properties and assets substantially as an
entirety to, any Person which is a corporation, partnership or trust organized
and validly existing under the laws of any domestic jurisdiction, provided that
any successor Person assumes the Company's obligations on the Debt Securities
and under such Indenture, that after giving effect to the transaction no Event
of Default, and no event which, after notice or lapse of time, would become an
Event of Default, shall have occurred and be continuing under such Indenture
and that certain other conditions are met. (Section 801)
REGARDING CITIBANK, N.A.
The Company and certain of its subsidiaries maintain deposits with and
conduct other banking transactions with Citibank, N.A. in the ordinary course
of business.
9
<PAGE>
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
10
<PAGE>
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.
11
<PAGE>
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.
12
<PAGE>
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.
13
<PAGE>
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.
14
<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.
15
<PAGE>
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
16
<PAGE>
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.
17
<PAGE>
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"). A description of material risks
relating to a particular series of Foreign Currency Securities will be set
forth in the applicable Prospectus Supplement or Prospectus Supplements.
18
<PAGE>
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 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).
19
<PAGE>
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 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.
20
<PAGE>
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.
21
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<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>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$1,500,000,000
FIRST BANK SYSTEM, INC.
LOGO
DEBT SECURITIES,PREFERRED STOCK,DEPOSITARY SHARES AND DEBT WARRANTS
---------------
PROSPECTUS
---------------
APRIL , 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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
----------
Total.................................................... $1,045,862*
==========
</TABLE>
- --------
* All fees and expenses other than the SEC registration fee are estimated.
The expenses listed above will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
Article Ninth of the Company's Restated Certificate of Incorporation, as
amended, provides that a director shall not be liable to the Company or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under the Delaware statutory provision making directors personally liable for
unlawful dividends or unlawful stock repurchases or redemptions or (iv) for any
transaction for which the directors derived an improper personal benefit.
The Bylaws of the Company provide that the officers and directors of the
Company and certain others shall be indemnified to substantially the same
extent permitted by Delaware law.
The Company maintains a standard policy of officers' and directors'
insurance.
In the Underwriting Agreement, a form of which is filed as Exhibit 1.1
hereto, and in the Distribution Agreement, a form of which is filed as Exhibit
1.2 hereto, the Underwriters and the Agents, respectively, will agree to
indemnify, under certain conditions, the Company, its directors, certain of its
officers and persons who control the Company within the meaning of the
Securities Act of 1933, as amended (the "Act") against certain liabilities.
ITEM 16. LIST OF EXHIBITS
<TABLE>
<CAPTION>
<C> <S> <C>
1.1 Proposed form of Underwriting Agreement (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>
- --------
*Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities Act
if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change 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.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING A FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNEAPOLIS, STATE OF MINNESOTA, ON MARCH 28,
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 AMENDMENT TO
THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSON IN THE
CAPACITIES INDICATED BELOW ON MARCH 28, 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
