SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 1, 1997
U.S. Bancorp
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(Exact Name of Registrant as Specified in Charter)
Delaware 1-6880 41-0255900
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(State or Other Jurisdiction (Commission (IRS employer
of Incorporation) File Number) Identification No.)
601 Second Avenue South, Minneapolis, Minnesota 55402-4302
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 973-1111
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First Bank System, Inc.
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(former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets.
Effective August 1, 1997, U. S. Bancorp, an Oregon
corporation ("Old USBC"), merged (the "Merger") with and into
First Bank System, Inc. ("Registrant") pursuant to an Agreement
and Plan of Merger, dated as of March 19, 1997, by and between
Old USBC and Registrant (the "Merger Agreement"). As a result of
the Merger, Registrant changed its name to "U.S. Bancorp" ("New
USBC"). Pursuant to the Merger Agreement, each share of common
stock, par value $5.00 per share, of Old USBC was converted into
the right to receive 0.755 of a share of common stock, par value
$1.25 per share, of New USBC ("New USBC Common Stock"), with cash
to be paid in lieu of fractional shares. Also pursuant to the
Merger Agreement, each share of 8 1/8% Cumulative Preferred
Stock, Series A, without par value, liquidation preference $25
per share, of Old USBC was converted into one share of 8 1/8%
Cumulative Preferred Stock, Series A, par value $1.00 per share,
liquidation preference $25 per share, of New USBC ("New USBC
Preferred Stock").
The Registrant's Registration Statement on Form S-4
(Registration No. 333-29409), which was declared effective by the
Securities and Exchange Commission on June 19, 1997 (the
"Registration Statement"), sets forth certain information
regarding the Merger, the Registrant and Old USBC, including, but
not limited to, the date and manner of the Merger, a description
of the assets involved, the nature and amount of consideration
paid by the Registrant therefor, the method used for determining
the amount of such consideration, the nature of any material
relationships between Old USBC and the Registrant or any officer
or director of the Registrant or any associate of any such
officer or director, the nature of Old USBC's business and the
Registrant's intended use of the assets acquired in the Merger.
Item 5. Other Events.
A. Name Change; NYSE and NASDAQ Symbols
As a result of the Merger, Registrant changed its name to
"U.S. Bancorp". Commencing on August 4, 1997, the New USBC Common
Stock will trade under the symbol "USB" on the New York Stock
Exchange and the New USBC Preferred Stock will be quoted on the
Nasdaq National Market under the symbol "USBPD" for 30 days and
then under the symbol "USBCP".
B. Increase in Authorized Capitalization
As a result of the Merger, the total number of shares of
all classes of stock which Registrant has the authority to issue
was increased from 210,000,000 (consisting of 200,000,000 shares
of New USBC Common Stock and 10,000,000 shares of preferred
stock, par value $1.00 per share) to 510,000,000 (consisting of
500,000,000 shares of New USBC Common Stock and 10,000,000 shares
of preferred stock, par value $1.00 per share).
C. Increase in Size of Board of Directors
As a result of the Merger, Registrant's Certificate of
Incorporation was amended to increase the maximum size of
Registrant's Board of Directors to 30 and to exempt from the 80%
stockholder voting requirement any future amendment
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thereto to reduce the maximum number of directors to not less
than the greater of (i) the number of directors then in office
and (ii) 24.
D. Restated Certificate of Incorporation and Amended By-Laws
On August 1, 1997, the Registrant filed a Restated
Certificate of Incorporation with the Delaware Secretary of
State, a copy of which is included as Exhibit 3.1 hereto and is
incorporated by reference herein.
In connection with the Merger, the Registrant made certain
amendments to its By-Laws. A copy of the Registrant's Amended
By-Laws is included as Exhibit 3.2 hereto and is incorporated by
reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
The Registrant has filed all required financial statements,
pro forma financial information and exhibits required by Item 2
hereof with the Securities and Exchange Commission as part of the
Registration Statement and as part of a Current Report on Form
8-K filed with the Securities and Exchange Commission on June 24,
1997.
The following exhibits are filed herewith:
3.1 Copy of the Registrant's Restated Certificate of Incorporation
3.2 Copy of the Registrant's Amended By-Laws
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
Date: August 1, 1997
U.S. BANCORP
(Registrant)
By: /s/ David J. Parrin
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Name: David J. Parrin
Title: Senior Vice President and Controller
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EXHIBIT INDEX
3.1 Copy of the Registrant's Restated Certificate of Incorporation
3.2 Copy of the Registrant's Amended By-Laws
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Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. BANCORP
FIRST: The name of this corporation is U.S. Bancorp.
SECOND: The registered office of the corporation in the
State of Delaware is to be located at 1209 Orange Street in the
City of Wilmington, County of New Castle. The name of the
registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the corporation is to engage in any
part of the world in any capacity in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware, and the corporation shall be
authorized to exercise and enjoy all powers, rights and
privileges which corporations organized under the General
Corporation Law of Delaware may have under the laws of the State
of Delaware as in force from time to time, including without
limitation all powers, rights and privileges necessary or
convenient to carry out all those acts and activities in which it
may lawfully engage.
FOURTH: The total number of shares of all classes of stock
which the corporation shall have the authority to issue is
510,000,000, consisting of 10,000,000 shares of Preferred Stock
of the par value of $1.00 each and 500,000,000 shares of Common
Stock of the par value of $1.25 each.
The designations and the powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, of
each class of stock are as follows:
The Board of Directors is expressly authorized at any time,
and from time to time, to provide for the issuance of shares of
preferred stock in one or more series, with such voting powers,
full or limited, or without voting powers and with such
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the
resolution or resolutions providing for the issue thereof adopted
by the board of directors, subject to the limitations prescribed
by law and in accordance with the provisions hereof, including
(but without limiting the generality thereof) the following:
(a) The designation of the series and the number of shares
to constitute the series.
(b) The dividend rate of the series, the conditions and
dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any
other class or classes of stock, and whether such dividends shall
be cumulative or noncumulative.
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(c) Whether the shares of the series shall be subject to
redemption by the corporation and, if made subject to such
redemption, the times, prices and other terms and conditions of
such redemption.
(d) The terms and amount of any sinking fund provided for
the purchase or redemption of the shares of the series.
(e) Whether or not the shares of the series shall be
convertible into or exchangeable for shares of any other class or
classes or of any other series of any class or classes of stock
of the corporation, and, if provision be made for conversion or
exchange, the times, prices, rates, adjustments and other terms
and conditions of such conversion or exchange.
(f) The extent, if any, to which the holders of the shares
of the series shall be entitled to vote with respect to the
election of directors or otherwise.
(g) The restrictions, if any on the issue or reissue of any
additional preferred stock.
(h) The rights of the holders of the shares of the series
upon the dissolution, liquidation, or winding up of the
corporation.
Subject to the prior or equal rights, if any, of the
preferred stock of any and all series stated and expressed by the
board of directors in the resolution or resolutions providing for
the issuance of such preferred stock, the holders of common stock
shall be entitled (i) to receive dividends when and as declared
by the board of directors out of any funds legally available
therefore, (ii) in the event of any dissolution, liquidation or
winding up of the corporation, to receive the remaining assets of
the corporation, ratably according to the number of shares of
common stock held, and (iii) to one vote for each share of common
stock held. No holder of common stock shall have any preemptive
right to purchase or subscribe for any part of any issue of stock
or of securities of the corporation convertible into stock of any
class whatsoever, whether now or hereafter authorized.
Pursuant to the authority conferred by this Article FOURTH,
the following series of Preferred Stock have been designated,
each such series consisting of such number of shares, with such
voting powers and with such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof as are stated
and expressed in the exhibit with respect to such series attached
hereto as specified below and incorporated herein by reference:
Exhibit A Adjustable Rate Cumulative Preferred Stock, Series 1990A
Exhibit B 8 1/8% Cumulative Preferred Stock, Series A
FIFTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
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(a) To fix, determine and vary from time to time the amount
to be maintained as surplus and the amount or amounts to be set
apart as working capital.
(b) To adopt, amend, alter or repeal by-laws of the
corporation, without any action on the part of the shareholders.
The by-laws adopted by the directors may be amended, altered,
changed, added to or repealed by the shareholders.
(c) To authorize and cause to be executed mortgages and
liens, without limit as to amount, upon the real and personal
property of this corporation.
(d) To sell, assign, convey or otherwise dispose of a part
of the property, assets and effects of this corporation, less
than the whole, or less than substantially the whole thereof, on
such terms and conditions as they shall deem advisable, without
the assent of the shareholders; and also to sell, assign,
transfer, convey and otherwise dispose of the whole or
substantially the whole of the property, assets, effects,
franchises and good will of this corporation on such terms and
conditions as they shall deem advisable, but only pursuant to the
affirmative vote of the holders of a majority in amount of the
stock then having voting power and at the time issued and
outstanding, but in any event not less than the amount required
by law.
(e) All of the powers of this corporation, insofar as the
same lawfully may be vested by this certificate in the board of
directors, are hereby conferred upon the board of directors of
this corporation.
SIXTH: The affairs of the Corporation shall be conducted by
a Board of Directors. Except as otherwise provided by this
Article Sixth, the number of directors, not less than twelve (12)
nor more than thirty (30), shall be fixed from time to time by
the Bylaws. Commencing with the annual election of directors by
the stockholders in 1986, the directors shall be divided into
three classes: Class I, Class II and Class III, each such class,
as nearly as possible, to have the same number of directors. Such
classified directors may be removed by vote of the stockholders
only for cause. The term of office of the initial Class I
directors shall expire at the annual election of directors by the
stockholders in 1987, the term of office of the initial Class II
directors shall expire at the annual election of directors by the
stockholders in 1988, and the term of office of the initial Class
III directors shall expire at the annual election of directors by
the stockholders in 1989. At each annual election of directors by
the stockholders held after 1985, the directors chosen to succeed
those whose terms have then expired shall be identified as being
of the same class as the directors they succeed and shall be
elected by the stockholders for a term expiring at the third
succeeding annual election of directors. In all cases, directors
shall hold office until their respective successors are elected
by the stockholders and have qualified.
In the event that the holders of any class or series of
stock of the Corporation having a preference as to dividends or
upon liquidation of the Corporation shall be entitled, by a
separate class vote, to elect directors as may be specified
pursuant to Article Fourth, then the
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provisions of such class or series of stock with respect to their
rights shall apply. The number of directors that may be elected
by the holders of any such class or series of stock shall be in
addition to the number fixed pursuant to the preceding paragraph
of this Article Sixth. Except as otherwise expressly provided
pursuant to Article Fourth, the number of directors that may be
so elected by the holders of any such class or series of stock
shall be elected for terms expiring at the next annual meeting of
stockholders and without regard to the classification of the
remaining members of the Board of Directors and vacancies among
directors so elected by the separate class vote of any such class
or series of stock shall be filled by the remaining directors
elected by such class or series, or, if there are no such
remaining directors, by the holders of such class or series in
the same manner in which such class or series initially elected a
director.
If at any meeting for the election of directors, more than
one class of stock, voting separately as classes, shall be
entitled to elect one or more directors and there shall be a
quorum of only one such class of stock, that class of stock shall
be entitled to elect its quota of directors notwithstanding the
absence of a quorum of the other class or classes of stock.
Vacancies and newly created directorships resulting from an
increase in the number of directors, subject to the provision of
Article Fourth, shall be filled by a majority of the directors
then in office, although less than a quorum, or by a sole
remaining director, and such directors so chosen shall hold
office until the next election of the class for which such
directors shall have been chosen, and until their successors
shall be elected and shall have qualified.
Notwithstanding any other provisions of this Amended
Certificate of Incorporation or the Bylaws of the Corporation
(and notwithstanding that a lesser percentage may be specified by
law), the provisions of this Article Sixth may not be amended or
repealed (except an amendment hereto to reduce the maximum number
of directors of the Corporation to not less than the greater of
(A) the number of directors then in office and (B) twenty-four
(24)) unless such action is approved by the affirmative vote of
the holders of not less than eighty percent (80%) of the voting
power of all of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, considered for purposes of this Article Sixth as a
single class.
SEVENTH: No action required to be taken or which may be
taken at any annual meeting or special meeting of stockholders
may be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
EIGHTH: (a) In addition to the requirements of the
provision of any series of preferred stock which may be
outstanding, and whether or not a vote of the stockholders is
otherwise required, the affirmative vote of the holders of not
less than eighty percent (80%) of the voting power of the Voting
Stock shall be required for the approval or authorization of any
Business Transaction with a Related Person, or any Business
Transaction in which a Related
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Person has an interest (other than only a proportionate interest
as a stockholder of the Corporation); provided, however, that the
eighty percent (80%) voting requirement shall not be applicable
if (i) the Business Transaction is Duly Approved by the
Continuing Directors, or (ii) all of the following conditions are
satisfied:
(A) the Business Transaction is a merger or consolidation
or sale of substantially all of the assets of the corporation,
and the aggregate amount of cash and the fair market value of the
property, securities or other consideration to be received per
share (on the date of effectiveness of such merger or
consolidation or on the date of distribution to stockholders of
the Corporation of the proceeds from such sale of assets) by
holders of common stock of the corporation (other than such
Related Person) in connection with such Business Transaction is
at least equal in value to such Related Person's Highest Common
Stock Purchase Price;
(B) after such Related Person has become the Beneficial
Owner of not less than ten percent (10%) of the voting power of
the Voting Stock and prior to the consummation of such Business
Transaction, such Related Person shall not have become the
Beneficial Owner of any additional shares of Voting Stock or
securities convertible into Voting Stock, except (i) as a part of
the transaction which resulted in such Related Person becoming
the Beneficial Owner of not less than ten percent (10%) of the
voting power of the Voting Stock, or (ii) as a result of a pro
rata stock dividend or stock split; and
(C) prior to the consummation of such Business Transaction,
such Related Person shall not have, directly or indirectly, (i)
received the benefit (other than only a proportionate benefit as
a stockholder of the Corporation) of any loans, advances,
guarantees, pledges or other financial assistance or tax credits
provided by the corporation or any of its subsidiaries, (ii)
caused any material change in the corporation's business or
equity capital structure, including, without limitation, the
issuance of shares of capital stock of the corporation or (iii)
except as Duly Approved by the Continuing Directors, caused the
corporation to fail to declare and pay quarterly cash dividends
on the outstanding common stock on a per share basis at least
equal to the cash dividends being paid thereon by the corporation
immediately prior to the date on which the Related Person became
a Related Person.
(b) For the purpose of this Article Eighth:
(i) The term "Business Transaction" shall mean (a) any
merger or consolidation involving the corporation or a subsidiary
of the corporation, (b) any sale, lease, exchange, transfer or
other disposition (in one transaction or a series of related
transactions), including, without limitation, a mortgage or any
other security device, of all or any Substantial Part of the
assets either of the corporation or of a subsidiary of the
corporation, (c) any sale, lease, exchange, transfer or other
disposition (in one transaction or a series of related
transactions) of all or any Substantial Part of the assets of an
entity to the corporation or a subsidiary of the corporation, (d)
the issuance, sale, exchange, transfer or other disposition (in
one transaction or a series of related transactions) by the
corporation or a subsidiary of the corporation of any securities
of the corporation or any subsidiary of the corporation having an
aggregate fair market value of $100 million or more, (e) any
recapitalization or reclassification of the
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securities of the Corporation (including, without limitation, any
reverse stock split) or other transaction that would have the
effect of increasing the voting power of a Related Person or
reducing the number of shares of each class of Voting Securities
outstanding, (f) any liquidation, spinoff, splitoff, splitup or
dissolution of the corporation, and (g) any agreement, contract
or other arrangement providing for any of the transactions
described in this definition of Business Transaction.
(ii) The term "Related Persons" shall mean and include (a)
any individual, corporation, partnership, group, association or
other person or entity which, together with its Affiliates and
Associates, is the Beneficial Owner of not less than ten percent
(10%) of the voting power of the Voting Stock or was the
Beneficial Owner of not less than ten percent (10%) of the voting
power of the Voting Stock (x) at the time the definitive
agreement providing for the Business Transaction (including any
amendment thereof) was entered into, (y) at the time a resolution
approving the Business Transaction was adopted by the Board of
Directors of the Corporation or (z) as of the record date for the
determination of stockholders entitled to notice of and vote on,
or consent to, the Business Transaction, and (b) any Affiliate or
Associate of any such individual, corporation, partnership,
group, association or other person or entity; provided, however,
and notwithstanding anything in the foregoing to the contrary,
the term "Related Person" shall not include the corporation, a
wholly-owned subsidiary of the corporation, any employee stock
ownership or other employee benefit plan of the corporation or
any wholly-owned subsidiary of the corporation, or any trustee
of, or fiduciary with respect to, any such plan when acting in
such capacity.
(iii) The term "Beneficial Owner" shall be defined by
reference to Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on January 16, 1986; provided, however, that
any individual, corporation, partnership, group, association or
other person or entity which has the right to acquire any Voting
Stock at any time in the future, whether such right is contingent
or absolute, pursuant to any agreement, arrangement or
understanding or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed the Beneficial Owner of
Voting Stock.
(iv) The term "Highest Common Stock Purchase Price" shall
mean the highest amount of consideration paid by such Related
Person for a share of Common Stock of the Corporation (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) in the transaction which resulted in such Related Person
becoming a Related Person or within one year prior to the date
such Related Person became a Related Person, whichever is higher;
provided, however, that the Highest Common Stock Purchase Price
shall be appropriately adjusted to reflect the occurrence of any
reclassification, recapitalization, stock split, reverse stock
split or other similar corporate readjustment in the number of
outstanding shares of common stock of the corporation between the
last date upon which such Related Person paid the Highest Common
Stock Purchase Price to the effective date of the merger or
consolidation or the date of distribution to stockholders of the
corporation of the proceeds from the sale of substantially all of
the assets of the corporation referred to in subparagraph (A) of
Section 1 of this Article Eighth.
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(v) The term "Substantial Part" shall mean more than twenty
percent (20%) of the fair market value of the total assets of the
entity in question, as reflected on the most recent consolidated
balance sheet of such entity existing at the time the
stockholders of the corporation would be required to approve or
authorize the Business Transaction involving the assets
constituting any such Substantial Part.
(vi) In the event of a merger in which the corporation is
the surviving corporation, for the purpose of subparagraph (A) of
Section 1 of this Article Eighth, the phrase "property,
securities or other consideration to be received" shall include,
without limitation, Common Stock of the Corporation retained by
its stockholders (other than such Related Person).
(vii) The term "Voting Stock" shall mean all outstanding
shares of capital stock of the corporation entitled to vote
generally in the election of directors, considered for the
purpose of this Article Eighth as one class.
(viii) The term "Preferred Stock" shall mean each class or
series of capital stock which may from time to time be authorized
in or by Article Fourth of the Amended and Restated Certificate
of Incorporation which is not designated as "Common Stock".
(ix) The term "Continuing Director" shall mean a director
who either was a member of the Board of Directors of the
corporation on April 24, 1986 or who became a director of the
corporation subsequent to such date and whose election, or
nomination for election by the corporation's stockholders, was
Duly Approved by the Continuing Directors then on the Board
either by a specific vote or by approval of the proxy statement
issued by the corporation on behalf of the Board of Directors in
which such person is named as nominee for director, without due
objection to such nomination; provided, however, that in no event
shall a director be considered a "Continuing Director" if such
director is a Related Person and the Business Transaction to be
voted upon is with such Related Person or is one in which such
Related Person has an interest (other than only a proportionate
interest as a stockholder of the corporation).
(x) The term "Duly Approved by the Continuing Directors"
shall mean an action approved by the vote of at least a majority
of the Continuing Directors then on the Board, except, if the
votes of such Continuing Directors in favor of such action would
be insufficient to constitute an act of the Board of Directors
(if a vote by the entire Board of Directors were to have been
taken), then such term shall mean an action approved by the
unanimous vote of the Continuing Directors so long as there are
at least three Continuing Directors on the Board at the time of
such unanimous vote.
(xi) The term "Affiliate", used to indicate a relationship
to a specified person, shall mean a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified
person.
(xii) The term "Associate", used to indicate a relationship
with a specified person, shall mean (A) any Corporation,
partnership or other organization of which such specified
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person is an officer or partner (B) any trust or other estate in
which such specified person has a substantial beneficial interest
or as to which such specified person serves as trustee or in a
similar fiduciary capacity, (C) any relative or spouse of such
specified person, or any relative of such spouse, who has the
same home as such specified person or who is a director or
officer of the Corporation or any of its subsidiaries, and (D)
any person who is a director, officer or partner of such
specified person or of any corporation (other than the
corporation or any wholly-owned subsidiary of the corporation),
partnership or other entity which is an Affiliate of such
specified person.
(c) For the purpose of this Article Eighth, so long as
Continuing Directors constitute at least two-thirds of the entire
Board of Directors, the Board of Directors shall have the power
to make a good faith determination, on the basis of information
known to them, of: (i) the number of shares of Voting Stock of
which any person is the Beneficial Owner, (ii) whether a person
is a Related Person or is an Affiliate or Associate of another,
(iii) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in the
definition of Beneficial Owner herein, (iv) whether the assets
subject to any Business Transaction constitute a Substantial
Part, (v) whether any Business Transaction is with a Related
Person or is one in which a Related Person has an interest (other
than only a proportionate interest as a stockholder of the
corporation), (vi) whether a Related Person has, directly or
indirectly, received the benefits or caused any of the changes
referred to in subparagraph (C) of Section 1 of this Article
Eighth, and (vii) such other matters with respect to which a
determination is required under this Article Eighth; and such
determination by the Board of Directors shall be conclusive and
binding for all purposes of this Article Eighth.
(d) Nothing contained in this Article Eighth shall be
construed to relieve any Related Person of any fiduciary
obligation imposed by law.
(e) The fact that any Business Transaction complies with
the provisions of Section 1 of this Article Eighth shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Transaction or recommend its adoption or
approval to the stockholders of the corporation.
(f) Notwithstanding any other provisions of this Amended
and Restated Certificate of Incorporation or the Bylaws of the
Corporation (and notwithstanding that a lesser percentage may be
specified by law), the provisions of this Article Eighth may not
be repealed or amended in any respect, unless such action is
approved by the affirmative vote of the holders of not less than
eighty percent (80%) of the Voting Stock.
NINTH: No director of the corporation shall be personally
liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty by such director as a
director; provided, however, that this Article Ninth shall not
eliminate or limit the liability of a director to the extent
provided by applicable law (i) for any breach of the director's
duty of loyalty to the corporation 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 section 174 of
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the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Article Ninth
shall apply to or have any effect on the liability or alleged
liability of any director of the corporation for or with respect
to any acts or omissions of such director occurring prior to such
amendment or repeal.
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Exhibit A
U.S. Bancorp
Adjustable Rate Cumulative Preferred Stock, Series 1990A
(a) Designation. The designation of the series of
Preferred Stock created by this resolution shall be "Adjustable
Rate Cumulative Preferred Stock, Series 1990A" (hereinafter
referred to as this "Series") and the number of shares
constituting this Series shall be twelve thousand seven hundred
fifty (12,750). The number of authorized shares of this Series
may be increased or reduced by further resolution duly adopted by
the Board of Directors of the Corporation or any duly authorized
committee of the Board of Directors of the Corporation and by the
filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such
reduction or increase, as the case may be, has been so
authorized.
(b) Dividends. (1) Dividend periods ("Dividend
Periods") shall commence on January 1, April 1, July 1, and
October 1 in each year and shall end on and include the day next
preceding the first day of the next Dividend Period. Such
dividends shall be cumulative from the date of original issue of
shares of this Series and shall be payable, when and as declared
by the Board of Directors or by any duly authorized committee of
the Board of Directors of the Corporation, on March 31, June 30,
September 30 and December 31 of each year, commencing [insert
first dividend payment date]. Each such dividend shall be paid to
the holders of record of shares of this Series as they appear on
the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be
fixed by the Board of Directors of the Corporation or by any duly
authorized committee of the Board of Directors of the
Corporation. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time, without
reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment
date thereof, as may be fixed by the Board of Directors of the
Corporation or by any duly authorized committee of the Board of
Directors of the Corporation.
(2) No full dividends shall be declared or paid or set
apart for payment on the Preferred Stock of any series ranking,
as to dividends, on a parity with or junior to this Series for
any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on
the shares of this Series for all dividend payment periods
terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the shares of this Series and any other Preferred
Stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other
Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other Preferred Stock
shall in all cases bear to each other the same ratio that accrued
dividends per share on the shares of this Series and such other
Preferred Stock bear to each other. Except as provided
<PAGE>
in the preceding sentence, unless full cumulative dividends
on all outstanding shares of this Series shall have been paid or
declared and set aside for payment for the then-current dividend
payment period and all past dividend payment periods, no
dividends (other than a dividend in the Common Stock, par value
$1.25 per share, of the Corporation (the "Common Stock"), or
another stock ranking junior to this Series as to dividends and
upon liquidation) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common
Stock or upon any other stock of the Corporation ranking junior
to or on a parity with this Series as to dividends or upon
liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as
to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon liquidation).
Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stock, in excess
of full cumulative dividends, as herein provided, on this Series.
No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments which may
be in arrears.
(3) Dividends payable on this Series for each full
Dividend Period shall be computed by dividing the dividend rate
for such Dividend Period (stated on an annualized basis) by four
(4) and applying such rate against the liquidation preference per
share of this Series. Dividends payable on this Series for any
period less than a full Dividend Period, including the Initial
Dividend Period (as defined in Section (c) below), shall be
computed on the basis of 30-day months, a 360-day year, and the
actual number of days elapsed in the period.
(c) Dividend Rate. (1) The dividend rate on the shares
of this Series shall be: (i) for the period (the "Initial
Dividend Period") from the date of original issue thereof to and
including [insert first dividend payment date], [insert rate for
Initial Dividend Period]% per annum of the liquidation preference
thereof (excluding any accrued but unpaid dividends) and (ii) for
each Dividend Period thereafter a rate per annum of the
liquidation preference thereof (excluding any accrued but unpaid
dividends) equal to the Applicable Rate (as defined in paragraph
(2) of this Section (c)) in respect of such Dividend Period, in
each case, as adjusted as described under paragraph 9 of this
Section (c).
(2) Except as provided below in this paragraph, the
"Applicable Rate" for any Dividend Period shall be (a) [insert
amount]% greater than (b) the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate (each as hereinafter defined) for such Dividend
Period. If the Corporation determines in good faith that for any
reason one or more of such rates cannot be determined for any
Dividend Period, then the Applicable Rate for such Dividend
Period shall be [insert amount]% greater than the higher of
whichever of such rates can be so determined. If the Corporation
determines in good faith that for any reason none of such rates
can be determined for any Dividend Period, then the Applicable
Rate in effect for the preceding Dividend Period shall be
continued for such Dividend Period. Anything herein to the
contrary notwithstanding, the
<PAGE>
Applicable Rate for any Dividend Period shall in no event be less
than [insert minimum rate]% per annum.
(3) Except as provided below in this paragraph, the
"Treasury Bill Rate" for each Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate,
if only one such rate shall be published during the relevant
Calendar Period (as defined below)) for three-month U.S. Treasury
bills, as published weekly by the Federal Reserve Board during
the Calendar Period immediately prior to the last ten calendar
days immediately preceding the first day of the Dividend Period
for which the dividend rate on this Series is being determined.
In the event that the Federal Reserve Board does not publish such
a weekly per annum market discount rate during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per
annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate shall be published during
the relevant Calendar Period) for three-month U.S. Treasury
bills, as published weekly during such Calendar Period by any
Federal Reserve Bank or any U.S. Government department or agency
selected by the Corporation. In the event that a per annum market
discount rate for three-month U.S. Treasury bills shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be
published during the relevant Calendar Period) for all of the
U.S. Treasury bills then having maturities of not less than 80
nor more than 100 days, as published during such Calendar Period
by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish during such rates, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason no such U.S. Treasury bill rates are
published as provided above during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based
upon the closing bids during such Calendar Period for each of the
issues of marketable noninterest bearing U.S. Treasury securities
with a maturity of not less than 80 nor more than 100 days from
the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation
by at least three recognized dealers in U.S. Government
securities selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the
Corporation cannot determine the Treasury Bill Rate for any
Dividend Period as provided above in this paragraph, the Treasury
Bill Rate for such Dividend Period shall be the arithmetic
average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues
of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days, as chosen
and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available)
to the Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
<PAGE>
(4) Except as provided below in this paragraph, the "Ten
Year Constant Maturity Rate" for each Dividend Period shall be
the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (as defined below) (or the one weekly per
annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period), as published
weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days immediately
preceding the first day of the Dividend Period for which the
dividend rate on this Series is being determined. In the event
that the Federal Reserve Board does not publish such weekly per
annum Ten Year Average Yield during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per
annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only such Yield shall be published during
the relevant Calendar Period), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In
the event that a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the
one weekly per annum average yield to maturity, if only one such
yield shall be published during the relevant Calendar Period) for
all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities (as
defined below)) then having maturities of not less than eight nor
more than twelve years, as published during such Calendar Period
by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the
Ten Year Constant Maturity Rate for any Dividend Period as
provided above in this paragraph, then the Ten Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity based upon
the closing bids during such Calendar Period for each of the
issues of actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) with a final
maturity date not less than eight nor more than twelve years from
the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation
by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
(5) Except as provided below in this paragraph, the
"Thirty Year Constant Maturity Rate" for each Dividend Period
shall be the arithmetic average of the two most recent weekly per
annum Thirty Year Average Yields (as defined below) (or the one
weekly per annum Thirty Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period), as
published weekly by the Federal Reserve Board during the Calendar
Period immediately prior to the last ten calendar days
immediately preceding the first day of the Dividend Period for
which the dividend rate on this Series is being determined. In
the event that the Federal Reserve Board does not publish such a
weekly per annum Thirty Year Average Yield during such Calendar
Period, then the Thirty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most
recent weekly
<PAGE>
per annum Thirty Year Average Yields (or the one weekly per annum
Thirty Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Corporation. In the event that a per annum Thirty Year Average
Yield shall not be published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Thirty Year Constant
Maturity Rate for such Dividend Period will be the arithmetic
average of the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to maturity,
if only one such yield shall be published during the relevant
Calendar Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
Securities) then having maturities of not less than twenty-eight
nor more than thirty years, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the
Thirty Year Constant Maturity Rate for any Dividend Period as
provided above in this paragraph, then the Thirty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity based upon
the closing bids during such Calendar Period for each of the
issues of actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) with a final
maturity date not less than twenty-eight nor more than thirty
years from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less frequently
if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate shall
each be rounded to the nearest five one-hundredths of a
percentage point.
(7) For purposes of paragraphs (3) through (6) of this
Section (c), the term
(i) "Calendar Period" means 14 calendar days;
(ii) "Special Securities" means securities which
can, at the option of the holder, be surrendered at face
value in payment of any Federal estate tax or which provide
tax benefits to the holder and are priced to reflect such
tax benefits or which were originally issued at a deep or
substantial discount;
(iii) "Ten Year Average Yield" means the average yield
to maturity for actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to constant
maturities of ten years); and
(iv) "Thirty Year Average Yield" means the
average yield to maturity for actively traded marketable
U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of thirty years).
<PAGE>
(8) The Corporation will calculate the Applicable Rate with
respect to each Dividend Period as promptly as practicable prior
to the commencement thereof according to the appropriate method
described herein. The Corporation will cause notice of such
Applicable Rate to be enclosed with the dividend payment checks
next mailed to the holders of shares of this Series.
(9) If, after the day on which shares of this Series
are first issued, one or more amendments to the Internal Revenue
Code of 1986, as amended (the "Code"), are enacted that change
the percentage specified in Section 243(a)(1) of the Code or any
successor provision (the "Dividends Received Percentage"), the
amount of each dividend payable per share of this Series after
the effective date of any such change shall be adjusted by
multiplying the amount of dividends determined as described under
Section (c)(1) (before adjustment) by a factor, which shall be
the number determined in accordance with the following formula,
and rounding the result to the nearest cent:
1 - FTR (1 - OLD)
-----------------
1 - FTR (1 - DRP)
For the purposes of the above formula, "FTR" means the
federal income tax rate applicable to corporations under the Code
as in effect on the date shares of this Series are first issued,
"OLD" means the Dividend Received Percentage as in effect on such
date and "DRP" means the Dividends Received Percentage applicable
to the dividend in question. Notwithstanding the foregoing
provisions, in the event that, with respect to any such
amendment, the Corporation shall receive either an unqualified
opinion of independent recognized tax counsel or a private letter
ruling or similar form of authorization from the Internal Revenue
Service to the effect that such an amendment would not apply to
dividends payable on this Series, then any such amendment shall
not result in the adjustment provided for pursuant to this
Section (c)(9). For purposes of these Resolutions, all references
to dividends shall mean dividends as adjusted pursuant to the
provisions of this Section (c)(9). The Corporation's calculations
of the dividends payable as so adjusted and as certified accurate
as to calculation and reasonable as to method by the independent
certified public accountants then regularly engaged by the
Corporation, shall be final and not subject to review.
In the event that the amount of dividends payable per
share of this Series shall be adjusted pursuant to the provisions
of the foregoing paragraph, the Corporation shall cause notice of
each such adjustment, together with the Applicable Rate with
respect to such dividend, to be included with the dividend
payment checks next mailed to the holders of this Series, each as
provided in Section (c)(8) of these Resolutions.
(d) Redemption.
(1) Except as set forth in Section (d)(2), the shares
of this Series shall not be redeemable prior to the date that is
the tenth anniversary of the day on which shares of this Series
are first issued. The Corporation, at its option, may redeem
shares of this Series, as a whole or in part, at any time or from
time to time on or after such date, at a redemption price
<PAGE>
equal to the aggregate liquidation value of the shares so
redeemed, plus, in each case, accrued and unpaid dividends
thereon to the date fixed for redemption.
(2) Notwithstanding the provisions of Section (d)(1),
in the event that an amendment to the Code is enacted that would
effect a change in the Dividends Received Percentage so as to
result in the amount of dividend payable being adjusted upward
pursuant to Section (c)(9), the Corporation, at its option, may
redeem the issued and outstanding shares of this Series as a
whole, at any time after the effective date of any such change in
the Dividends Received Percentage, at a redemption price of
$100,000 per share, plus, in each case, an amount equal to
accrued and unpaid dividends (whether or not declared) to the
date fixed for redemption.
(3) In the event that fewer than all the outstanding
shares of this Series are to be redeemed, the number of shares to
be redeemed shall be determined by the Board of Directors of the
Corporation or any duly authorized committee of the Board of
Directors of the Corporation and the shares to be redeemed shall
be determined by lot or pro rata as may be determined by the
Board of Directors of the Corporation or any duly authorized
committee of the Board of Directors of the Corporation or by any
other method as may be determined by the Board of Directors of
the Corporation or any duly authorized committee of the Board of
Directors of the Corporation in its sole discretion to be
equitable, provided that such method satisfies any applicable
requirements of any securities exchange on which this Series is
listed.
(4) In the event the Corporation shall redeem shares
of this Series, notice of such redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each
such notice shall state: (i) the redemption date; (ii) the number
of shares of this Series to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price;
and (v) that dividends on the shares to be redeemed will cease to
accrue on the redemption date.
(5) Notice having been mailed as aforesaid, from and
after the redemption date (unless default shall be made by the
Corporation in providing money for the payment of the applicable
redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the applicable
redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation or any duly authorized committee of
the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the applicable redemption price. In case fewer
than all the shares represented by any such certificate are
redeemed, a new
<PAGE>
certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(6) Any shares of this Series which shall at any time
have been redeemed shall, after such redemption, have the status
of authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more
designated as part of a particular series by the Board of
Directors of the Corporation or any duly authorized committee of
the Board of Directors of the Corporation.
(7) Notwithstanding the foregoing provisions of this
Section (d), in the event that full cumulative dividends on the
shares of this Series have not been paid, no shares of this
Series shall be redeemed unless all outstanding shares of this
Series are simultaneously redeemed, and the Corporation shall not
purchase or acquire any shares of this Series otherwise than
pursuant to a purchase or exchange offer made on the same terms
to all holders of outstanding shares of this Series.
(e) Conversion or Exchange. The holders of shares of
this Series shall not have any rights to convert such shares into
or exchange such shares for shares of any other class or classes
or of any other series of any class or classes of capital stock
of the Corporation.
(f) Voting Rights. The shares of this Series shall not have
any voting powers either general or special, except as expressly
required by applicable law and except that:
(1) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
affirmative vote or consent of the holders of at least 66-2/3% of
all of the shares of this Series at the time outstanding, voting
separately as a class, shall be required to authorize any
amendment of the Certificate of Incorporation or of any
certificate amendatory thereof or supplemental thereto (including
any certificate of designation or any similar document relating
to any series of Preferred Stock) which will adversely affect the
powers, preferences, privileges or rights of this Series;
(2) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
affirmative vote or consent of the holders of at least 66-2/3% of
all of the shares of this Series and all other series of shares
of Preferred Stock ranking on a parity with the shares of this
Series, either as to dividends or upon liquidation, at the time
outstanding, voting as a single class without regard to series,
shall be required to issue, authorize or increase the authorized
amount of, or to issue or authorize any obligation or security
convertible into or evidencing the right to purchase, any
additional class or series of stock ranking prior to the shares
of this Series as to dividends or upon liquidation; and
(3) If at the time of any annual meeting of
stockholders for the election of directors a default in
preference dividends on the shares of this Series shall exist,
the number of directors constituting the Board of Directors of
the Corporation shall be increased by one, and the holders of the
shares of this Series shall have the right at such meeting,
voting together
<PAGE>
as a single class, to the exclusion of the holders of Common
Stock, to elect one director of the Corporation to fill such
newly created directorship. Such right shall continue until there
are no dividends in arrears upon the shares of this Series. Each
director elected by the holders of shares of this Series (herein
called a "Preferred Director") shall continue to serve as such
director for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default in
preference dividends shall cease to exist. Any Preferred Director
may be removed by, and shall not be removed except by, the vote
of the holders of record of the outstanding shares of this
Series, voting together as a single class, at a meeting of the
stockholders, or of the holders of shares of this Series, called
for the purpose. So long as a default in any preference dividends
on the shares of this Series shall exist any vacancy in the
office of a Preferred Director may be filled by the vote of the
holders of the outstanding shares of this Series voting together
as a single class, at a meeting of the stockholders or of the
holders of shares of this Series called for the purpose. Whenever
the term of office of the Preferred Director shall end and a
default in preference dividends shall no longer exist, the number
of directors constituting the Board of Directors of the
Corporation shall be reduced by one. For the purposes hereof, a
"default in preference dividends" on the shares of this Series
shall be deemed to have occurred whenever the amount of accrued
but unpaid dividends on such shares shall be equivalent to six
full quarter-yearly dividends or more, and, having so occurred,
such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all such shares then outstanding
shall have been paid to the end of the last preceding dividend
period. Notwithstanding anything contained in this Certificate of
Designation or any other Certificate of Designation, whether
currently in effect or adopted hereafter, or the Certificate of
Incorporation, as amended from time to time, to the contrary, the
holders of shares of this Series shall not be entitled to vote
for the election of directors except as set forth in this Section
(f)(3).
(g) Liquidation Rights.
(1) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of
shares of this Series shall be entitled to receive out of the
assets of the Corporation available for distribution to its
stockholders, before any payment or distribution of assets shall
be made on the Common Stock or on any other class of stock of the
Corporation ranking junior to this Series upon liquidation, the
amount of $100,000 per share, plus a sum equal to all dividends
(whether or not earned or declared) on such shares accrued and
unpaid thereon to the date of final distribution.
(2) For the purposes of this Section (g), a voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation shall not include the consolidation or merger of the
Corporation with or into any other corporation, or any sale,
lease or conveyance of all or any part of the property or
business of the Corporation.
(3) After the payment to the holders of the shares of
this Series of the full preferential amounts provided for in this
Section (g), the holders of this Series as such shall not be
entitled to any further participation in any distribution of
assets of the Corporation.
<PAGE>
(4) If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to the holders of shares
of this Series and of any other shares of stock of the
Corporation ranking on a parity with this Series upon liquidation
shall not be sufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (1) of this Section
(g), the holders of shares of this Series and of such other
shares shall share ratably in any such distribution of assets of
the Corporation in proportion to the full respective preferential
amounts to which they are entitled.
(h) Relative Rank. For purposes of this resolution, any
stock of any class or classes of the Corporation shall be deemed
to rank:
(1) Prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or
classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up
of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(2) On a parity with shares of this Series, either as
to dividends or upon liquidation, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices
per share or sinking fund provisions, if any, be different from
those of this Series, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one
over the other, as between the holders of such stock and the
holders of shares of this Series; and
(3) Junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be Common
Stock or if the holders of shares of this Series shall be
entitled to receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the
case may be, in preference or priority to the holders of shares
of such class or classes.
The outstanding shares of the Corporation's Adjustable
Rate Cumulative Preferred Stock, Series 1983A, the Corporation's
Adjustable Rate Cumulative Preferred Stock, Series 1989A, the
Corporation's Adjustable Rate Cumulative Preferred Stock, Series
1989B and the Corporation's Adjustable Rate Cumulative Preferred
Stock, Series 1990B shall be deemed to rank on a parity with the
outstanding shares of this Series with respect to the payment of
dividends and upon liquidation. The Series A Junior Participating
Preferred Stock shall be deemed to rank junior to this Series
with respect to the payment of dividends and upon liquidation.
<PAGE>
Exhibit B
U.S. Bancorp
8 1/8% Cumulative Preferred Stock, Series A
Section 1. Designation and Amount. The shares of the series
shall be designated as the 8 1/8% Cumulative Preferred Stock,
Series A (the "Series"), and the number of shares constituting
the Series shall be 6,000,000. The number of shares constituting
the Series may be decreased from time to time by action of the
Board, but not below the number of shares of the Series then
outstanding. The Series shall rank senior to the common stock,
par value $1.25 per share ("Common Stock"), of the Corporation
and on a parity with the Adjustable Rate Cumulative Preferred
Stock, Series 1990A, par value $1.00 per share, of the
Corporation, as to dividends and upon liquidation.
Section 2. Dividends.
(a) Right to Receive Cash Dividends. The holders of
shares of the Series shall be entitled to receive when, as and if
declared by the Board out of assets legally available therefor,
cumulative cash dividends, payable quarterly in arrears on the
fifteenth day of February, May, August and November of each year
(each quarterly period ending on any such date being hereinafter
referred to as a "dividend period") commencing on the First
Payment Date (as defined below) at the rate per annum set forth
in Section 2(b). Each such dividend shall be paid to the holders
of record of shares of the Series as they appear on the stock
books of the Corporation on such record dates, not exceeding 45
days preceding the dividend payment dates therefor, as shall be
fixed by the Board. Dividends on shares of the Series shall be
cumulative from the date of original issuance of the shares of 8
1/8% Cumulative Preferred Stock, Series A (the "Old Shares"), of
U. S. Bancorp, an Oregon corporation ("Old USB") from which the
Series shares are converted in the merger (the "Merger") of Old
USB and the Corporation and shall include any arrearage on the
Old Shares whether or not there shall be assets legally available
for the payment of such dividends; provided, that if Old USB
shall have set a record date with respect to the Old Shares which
record date is prior to the effective date of the Merger for a
dividend payment date after the effective date of the Merger,
dividends in respect of the Old Shares shall be deemed to accrue
to such dividend payment date notwithstanding the intervening
occurrence of the Merger, and no dividends shall accrue on the
shares of the Series until the first date following such dividend
payment date.
The "First Payment Date" shall be (i) if Old USB shall
have set a record date with respect to the Old Shares which
record date is prior to the effective date of the Merger for a
dividend payment date after the effective date of the Merger, the
next succeeding dividend payment date following such dividend
payment date; provided, that the Corporation shall pay the
dividend declared on the Old Shares to the holders of record of
Old Shares as of such record date or (ii) if no such record date
shall have been set by Old USB, the first dividend payment date
after the effective date of the Merger (it being the intention
that no dividend shall be payable with respect to both the Old
Shares and the shares of the Series with
<PAGE>
respect to the same period of time or that any loss of dividends result
from the conversion of Old Shares into shares of the Series).
(b) Rate. The dividend rate per annum on the shares of
the Series shall be 8 1/8% of the liquidating preference of $25
per share.
(c) Restrictions. No full dividends shall be declared
or paid or set aside for payment on any stock of the Corporation
ranking, as to dividends, on a parity with or junior to the
Series for any period unless full cumulative dividends on the
Series have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set aside
for such payment on the Series for all dividend periods
terminating on or prior to the date of payment of such dividends.
When dividends are not paid in full on the Series and any other
preferred stock of the Corporation ranking on a parity as to
dividends with the Series, all dividends declared or paid upon
shares of the Series and such other preferred stock shall be
declared and paid pro rata so that the amount of dividends
declared and paid per share on the Series and such other
preferred stock shall in all cases bear to each other the same
ratio that accrued dividends per share (which in the case of
noncumulative preferred stock shall not include any accumulation
in respect of unpaid dividends for prior dividend periods) on
shares of the Series and such other preferred stock bear to each
other. Except as provided in the preceding sentence, unless full
cumulative dividends on the Series have been paid or declared and
set aside for payment, no dividends (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 Corporation ranking junior to the Series as to
dividends and upon liquidation) shall be declared or paid or set
aside for payment or any other distribution declared or made upon
the Common Stock or any other stock of the Corporation ranking
junior to or on a parity with the Series as to dividends or upon
liquidation. No Common Stock or any other stock of the
Corporation ranking junior to or on a parity with the Series as
to dividends or upon liquidation shall be redeemed, purchased or
otherwise acquired for any consideration (and no moneys shall be
paid to or made available for a sinking fund for the redemption
of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking
junior to the Series as to dividends and upon liquidation)
unless, in each case, the full cumulative dividends on the Series
shall have been paid or declared and set aside for payment.
Holders of shares of the Series shall not be entitled to any
dividend, whether payable in cash, property or stock, in excess
of the full dividends on such shares. No interest shall be
payable in respect of any dividend payment which may be in
arrears on the Series.
(d) Computation. Dividends payable on shares of the
Series (i) for any period other than a full dividend period,
shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and (ii) for each full dividend period,
shall be computed by dividing the annual dividend rate by four.
Any dividend payment made on shares of the Series shall first be
credited against the earliest accumulated but unpaid dividend due
with respect to shares of the Series.
<PAGE>
Section 3. Redemption.
(a) Redemption Prices and Dates. The Corporation
at its option may redeem shares of the Series, at any time or
from time to time, on or after July 23, 1997, at a cash
redemption price of $25 per share plus an amount equal to any
accrued and unpaid dividends (including any accumulated
dividends) thereon to and including the date fixed for redemption
(the "Redemption Price").
Notwithstanding the foregoing, if at the time the
Corporation proposes to give a notice of redemption pursuant to
Section 3(d), the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board"), or a successor Federal
agency responsible for supervision of bank holding companies
under the Bank Holding Company Act of 1956, as amended, requires
that, in order to be counted as "Tier 1" or "core" capital for
capital adequacy purposes, bank holding company preferred stock
may not be redeemed without the prior approval of the Federal
Reserve Board or such successor agency, then the Corporation may
not redeem any shares of the Series or give a notice of
redemption unless the Federal Reserve Board or such successor
agency shall have consented to such redemption.
(b) Pro Rata Redemption. If fewer than all the
outstanding shares of the Series are to be redeemed, the shares
to be redeemed shall be selected pro rata as nearly as
practicable or by lot as may be determined by the Board or by any
other method as the Board may determine to be fair and
appropriate.
(c) Restrictions on Redemption. Notwithstanding the
foregoing, if any quarterly dividend payable on shares of the
Series shall be in arrears and until all such dividends in
arrears shall have been paid or declared and a sum sufficient for
the payment thereof set aside for payment, the Corporation shall
not redeem any shares of the Series unless all outstanding shares
of the Series are simultaneously redeemed and shall not purchase
or otherwise acquire any shares of the Series except pursuant to
a purchase or exchange offer made on the same terms to all
holders of shares of the Series for the purchase of all
outstanding shares thereof.
(d) Notice. Notice of any redemption shall be given by
first class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the redemption date to each record
holder of the shares to be redeemed at the address of such holder
appearing in the stock books of the Corporation. Each such notice
shall state: (1) the redemption date, (2) the number of shares of
the Series to be redeemed, (3) the Redemption Price, (4) that
dividends on the shares to be redeemed shall cease to accrue on
such redemption date and (5) the place or places where
certificates for such shares are to be surrendered for payment of
the Redemption Price. If fewer than all the shares of the Series
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.
(e) Cessation of Dividends. If notice of redemption
has been given, from and after the redemption date for the shares
of the Series called for redemption (unless default shall be made
by the Corporation in providing for the payment of the Redemption
Price of the
<PAGE>
shares so called for redemption), dividends on the shares of the
Series 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 (except the right to receive the
Redemption Price) shall cease. Upon surrender in accordance with
such notice of the certificates representing any shares of the
Series so redeemed (properly endorsed or assigned for transfer,
if the Board shall so require and the notice shall so state), the
applicable Redemption Price shall be paid out of funds provided
by the Corporation. 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.
(f) Status of Redeemed and Reacquired Shares. Shares
of the Series which have been redeemed or otherwise acquired by
the Corporation shall be retired and canceled and shall be
restored to the status of authorized but unissued shares of
preferred stock, par value $1.00 per share, without designation
as to series, and may thereafter be issued, but not as shares of
the Series.
Section 4. Liquidation Rights.
(a) Payment on Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the holders of shares of the Series shall be
entitled to receive out of the assets of the Corporation
available for distribution to shareholders, before any
distribution of assets is made to holders of the Common Stock or
any other class or series of stock of the Corporation ranking
junior to the Series upon liquidation, a liquidating distribution
in an amount equal to $25 per share plus an amount equal to any
accrued and unpaid dividends (including any accumulated
dividends) thereon to and including the date of such
distribution. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to the holders of shares
of the Series and any other preferred stock of the Corporation
ranking as to any such distribution on a parity with the Series
shall be insufficient to pay in full all amounts to which such
holders are entitled, the holders of shares of the Series and
other preferred stock shall share ratably in such distribution of
assets of the Corporation in proportion to the sums that would be
payable to such holders if all sums were paid in full. After
payment of the full amount of the liquidation distribution plus
accrued and unpaid dividends to which they are entitled, the
holders of shares of the Series shall have no right or claim to
any of the remaining assets of the Corporation.
(b) Definition. None of the consolidation or merger of
the Corporation into or with another corporation or corporations,
or the sale, lease or exchange of all or substantially all of the
Corporation's assets, shall be deemed a liquidation, dissolution
or winding up of the Corporation within the meaning of this
Section 4.
Section 5. Voting Rights.
(a) Generally. Except as hereinafter provided or as
expressly required by applicable law, the holders of shares of
the Series will not be entitled to vote. When holders of shares
of the Series are entitled to vote, each holder shall be entitled
to one vote per share.
<PAGE>
(b) Arrearages. If at any time the equivalent of six
quarterly dividends, whether or not consecutive, payable on the
Series are unpaid or not declared and set aside for payment, the
number of directors of the Corporation shall be increased by two
and the holders of shares of the Series outstanding at the time
(voting separately as a single class with the holders of shares
of any one or more series of preferred stock of the Corporation
ranking on a parity with the Series as to dividends or upon
liquidation and upon which like voting rights have been conferred
and are exercisable) shall have the right to elect two directors
to serve as such until all arrearages of dividends on the Series
have been paid or declared and set aside for payment at which
time the terms of office of the two directors so elected shall
terminate and the number of directors of the Corporation shall be
reduced by two (subject to any additional rights as to the
election of directors provided for the holders of shares of other
preferred stock of the Corporation). Any director so elected may
be removed by, and shall not be removed except by, the vote of
the holders of shares of the Series outstanding at the time
(voting separately as a single class with the holders of shares
of any one or more series of preferred stock of the Corporation
ranking on a parity with the Series as to dividends or upon
liquidation and upon which like voting rights have been conferred
and are exercisable).
(c) Certain Corporate Actions. So long as any shares
of the Series remain outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at
least two-thirds of the shares of the Series and of any other
similarly affected series of preferred stock of the Corporation
ranking on a parity with the Series as to dividends or upon
liquidation and upon which like voting rights have been conferred
and are exercisable outstanding at the time (voting separately as
a single class without regard to series), given in person or by
proxy, either in writing or at a meeting, (i) authorize, create
or issue, or increase the authorized or issued amount of, any
class or series of stock ranking prior to the Series as to
dividends or upon liquidation or (ii) amend, alter or repeal,
whether by merger or otherwise, the provisions of the Certificate
so as to materially and adversely affect any of the preferences,
limitations, and relative rights of the Series; provided,
however, that any increase in the amount of the authorized
preferred stock of the Corporation or the creation and issuance
of other series of preferred stock of the Corporation, in each
case ranking on a parity with or junior to the Series as to
dividends or upon liquidation, will not be deemed to materially
and adversely affect such preferences, limitations and relative
rights. Without limiting the foregoing, under any circumstances
in which the Series would have additional rights under Oregon law
if the Corporation were incorporated under the Oregon Business
Corporation Act (rather than the Delaware General Corporation
Law), holders of shares of the Series shall be entitled to such
rights, including, without limitation, voting rights under
Section 60.441, voting and notice rights under Section 60.487 and
dissenters' rights under Sections 60.551-60.594 of the Oregon
Business Corporation Act (as such Sections may be amended from
time to time).
Section 6. No Sinking Fund. Shares of the Series are not
subject to a sinking fund or other obligation of the Corporation
to redeem or retire the Series.
<PAGE>
Exhibit 3.2
BYLAWS
OF
U.S. BANCORP
ARTICLE I.
OFFICES
Section 1. Offices.
The registered office of the Corporation in the State of
Delaware shall be in the City of Wilmington, County of New
Castle, State of Delaware.
The Corporation shall have offices at such other places as
the Board of Directors may from time to time determine.
ARTICLE II.
STOCKHOLDERS
Section 1. Annual Meeting.
The annual meeting of the stockholders for the election of
Directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date as
the Board of Directors shall each year fix. Each such annual
meeting shall be held at such place, within or without the State
of Delaware, and hour as shall be determined by the Board of
Directors. The day, place and hour of such annual meeting shall
be specified in the notice of annual meeting.
The meeting may be adjourned from time to time and place to
place until its business is completed.
Section 2. Special Meeting.
Special meetings of stockholders may be called by the Board
of Directors or the Chief Executive Officer. The notice of such
meeting shall state the purpose of such meeting and no business
shall be transacted thereat except as stated in the notice
thereof. Any such meeting may be held at such place within or
without the State of Delaware as may be fixed by the Board of
Directors or the Chief Executive Officer, and as may be stated in
the notice of such meeting.
Section 3. Notice of Meeting.
<PAGE>
Notice of every meeting of the stockholders shall be given
in the manner prescribed by law.
Section 4. Quorum.
Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the holders of not less than
one-third of the shares entitled to vote at any meeting of the
stockholders, present in person or by proxy, shall constitute a
quorum and the act of the majority of such quorum shall be deemed
the act of the stockholders.
If a quorum shall fail to attend any meeting, the chairman
of the meeting may adjourn the meeting to another place, date, or
time.
Section 5. Qualification of Voters.
The Board of Directors may fix a day and hour not more than
sixty nor less than ten days prior to the day of holding any
meeting of the stockholders as the time as of which the
stockholders entitled to notice of and to vote at such meeting
shall be determined. Only those persons who were holders of
record of voting stock at such time shall be entitled to notice
of and to vote at such meeting.
Section 6. Procedure.
The presiding officer at each meeting of stockholders shall
conclusively determine the order of business, all matters of
procedure and whether or not a proposal is proper business to be
transacted at the meeting and has been properly brought before
the meeting.
The Board shall appoint two or more inspectors of election
to serve at every meeting of the stockholders at which Directors
are to be elected.
Section 7. Nomination of Directors.
Only persons nominated in accordance with the following
procedures shall be eligible for election by stockholders as
Directors. Nominations of persons for election as Directors at a
meeting of stockholders called for the purpose of electing
Directors may be made (a) by or at the direction of the Board of
Directors or (b) by any stockholder in the manner herein
provided. For a nomination to be properly made by a stockholder,
the stockholder must give written notice to the Secretary of the
Corporation so as to be received at the principal executive
offices of the Corporation not later than (i) with respect to an
annual meeting of stockholders, 90 days in advance of such
meeting and (ii) with respect to a special meeting of
stockholders for the election of directors, the close of business
on the seventh day following the date on which the notice of such
meeting is first given to stockholders. Each such notice shall
set forth (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be
nominated; (b) a representation that the stockholder is a
<PAGE>
holder of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understanding
between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d)
such other information regarding each nominee proposed by such
stockholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended
to be nominated, by the Board; and (e) the consent of each
nominee to serve as a Director of the Corporation if so elected.
ARTICLE III.
DIRECTORS
Section 1. Number and Election.
The Board of Directors of the Corporation shall consist of
such number of Directors as are fixed from time to time by
resolution of the Board and within the requirements set forth in
the Certificate of Incorporation. Commencing with the annual
election of Directors by the stockholders in 1986, the Directors
shall be divided into three classes: Class I, Class II and Class
III, each such class, as nearly as possible, to have the same
number of Directors. The term of office of the initial Class I
Directors shall expire at the annual election of Directors by the
stockholders in 1987, the term of office of the initial Class II
Directors shall expire at the annual election of Directors by the
stockholders in 1988, and the term of office of the initial Class
III Directors shall expire at the annual election of Directors by
the stockholders in 1989. At each annual election of Directors by
the stockholders held after 1985, the Directors chosen to succeed
those whose terms have then expired shall be identified as being
of the same class as the Directors they succeed and shall be
elected by the stockholders for a term expiring at the third
succeeding annual election of Directors. In all cases, Directors
shall hold office until their respective successors are elected
by the stockholders and have qualified.
In the event that the holders of any class or series of
stock of the Corporation having a preference as to dividends or
upon liquidation of the Corporation shall be entitled, by a
separate class vote, to elect Directors as may be specified
pursuant to Article Fourth of the Corporation's Restated
Certificate of Incorporation, then the provisions of such class
or series of stock with respect to their rights shall apply. The
number of Directors that may be elected by the holders of any
such class or series of stock shall be in addition to the number
fixed pursuant to the preceding paragraph. Except as otherwise
expressly provided pursuant to Article Fourth of the
Corporation's Restated Certificate of Incorporation, the number
of Directors that may be so elected by the holders of any such
class or series of stock shall be elected for terms expiring at
the next annual meeting of stockholders and without regard to the
classification of the remaining members of the Board of Directors
and vacancies among Directors so elected by the separate class
vote of any such class or series of stock shall be filled by the
remaining Directors elected by such class or series, or, if there
are no such
<PAGE>
remaining Directors, by the holders of such class or series in the
same manner in which such class or series initially elected a Director.
If at any meeting for the election of Directors, more than
one class of stock, voting separately as classes, shall be
entitled to elect one or more Directors and there shall be a
quorum of only one such class of stock, that class of stock shall
be entitled to elect its quota of Directors notwithstanding the
absence of a quorum of the other class or classes of stock.
Section 2. Vacancies.
Vacancies and newly created directorships resulting from an
increase in the number of Directors shall be filled by a majority
of the Directors then in office, although less than a quorum, or
by a sole remaining Director, and such Directors so chosen shall
hold office until the next election of the class for which such
Directors shall have been chosen, and until their successors are
elected and qualified.
Section 3. Regular Meetings.
Regular meetings of the Board shall be held at such times
and places as the Board may from time to time determine.
Section 4. Special Meetings.
Special meetings of the Board may be called at any time, at
any place and for any purpose by the Chairman of the Board, or
the President, or by any officer of the Corporation upon the
request of a majority of the entire Board.
Section 5. Notice of Meetings.
Notice of regular meetings of the Board need not be given.
Notice of every special meeting of the Board shall be
given to the Directors at their usual places of business, or at
such other addresses as shall have been furnished by them for the
purpose. Such notice shall be given at least twelve hours (three
hours if meeting is to be conducted by conference telephone)
before the meeting by telephone or by being personally delivered,
mailed, or telegraphed. Such notice need not include a statement
of the business to be transacted at, or the purpose of, any such
meeting.
Section 6. Quorum.
Except as may be otherwise provided by law or in these
Bylaws, the presence of one-third of the entire Board shall be
necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, and the act
of a majority of such quorum shall be deemed the act of the
Board.
<PAGE>
Less than a quorum may adjourn any meeting of the Board
from time to time without notice.
Section 7. Participation in Meetings by Conference Telephone.
Members of the Board, or of any committee thereof, may
participate in a meeting of such Board or committee by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other and such participation shall constitute presence in person
at such meeting.
Section 8. Powers.
The business, property, and affairs of the Corporation
shall be managed by or under the direction of its Board of
Directors, which shall have and may exercise all the powers of
the Corporation to do all such lawful acts and things as are not
by law, or by the Certificate of Incorporation, or by these
Bylaws, directed or required to be exercised or done by the
stockholders.
Section 9. Compensation of Directors.
Directors shall receive such compensation for their
services as shall be determined by a majority of the entire Board
provided that Directors who are serving the Corporation as
officers or employees and who receive compensation for their
services as such officers or employees shall not receive any
salary or other compensation for their services as Directors.
Section 10. Committees of the Board.
A majority of the entire Board of Directors may designate
one or more standing or temporary committees consisting of one or
more Directors. The Board may invest such committees with such
powers and authority, subject to the limitations of law and such
conditions as it may see fit.
<PAGE>
ARTICLE IV.
EXECUTIVE COMMITTEE
Section 1. Election.
At any meeting of the Board, an Executive Committee,
composed of the Chairman of the Board, the President, and not
less than three other members, may be elected by a majority vote
of the entire Board to serve until the Board shall otherwise
determine. Either the Chairman of the Board or the President,
whichever is the Chief Executive Officer, shall be the Chairman
of the Executive Committee, and the other shall be the Vice
Chairman thereof, unless the Board shall otherwise determine.
Members of the Executive Committee shall be members of the Board.
Section 2. Powers.
The Executive Committee shall have and may exercise all of
the powers of the Board of Directors when the Board is not in
session, except that, unless specifically authorized by the Board
of Directors, it shall have no power to (a) elect directors or
officers; (b) alter, amend, or repeal these Bylaws or any
resolution of the Board of Directors relating to the Executive
Committee; (c) declare any dividend or make any other
distribution to the stockholders of the Corporation; (d) appoint
any member of the Executive Committee; or (e) take any other
action which legally may be taken only by the Board.
Section 3. Rules.
The Executive Committee shall adopt such rules as it may
see fit with respect to the calling of its meetings, the
procedure to be followed thereat, and its functioning generally.
Any action taken with the written consent of all members of the
Executive Committee shall be as valid and effectual as though
formally taken at a meeting of said Executive Committee.
Section 4. Vacancies.
Vacancies in the Executive Committee may be filled at any
time by a majority vote of the entire board.
<PAGE>
ARTICLE V.
OFFICERS
Section 1. Number.
The officers of the Corporation shall be appointed or
elected by the Board of Directors. The officers shall be a
Chairman of the Board, a President, one or more Vice Chairmen,
such number of Vice Presidents or other officers as the Board may
from time to time determine, a Secretary, a Treasurer, and a
Controller. The President shall be Chief Executive Officer unless
the Board shall determine otherwise. The Chairman of the Board
shall preside at all meetings of the Board and shall perform such
other duties as may be assigned from time to time by the Board.
In the absence of the Chairman or if such office shall be vacant,
the President shall preside at all meetings of the Board. In the
absence of the Chairman of the Board and the President, any other
Board member designated by the Board may preside at all meetings
of the stockholders and of the Board. The Board of Directors may
appoint or elect a person as a Vice Chairman without regard to
whether such person is a member of the Board of Directors.
Section 2. Staff and Divisional Officers.
The Chief Executive Officer may appoint at his discretion
such persons to hold the title of staff vice president,
divisional chairman, divisional president, divisional vice
president or other similar designation. Such persons shall not be
officers of the Corporation and shall retain such title at the
sole discretion of the Chief Executive Officer who may at his
will and from time to time make or revoke such designation.
Section 3. Terms of Office.
All officers, agents, and employees of the Corporation
shall hold their respective offices or positions at the pleasure
of the Board of Directors or the appropriate appointing authority
and may be removed at any time by such authority with or without
cause.
Section 4. Duties.
The officers, agents, and employees shall perform the
duties and exercise the powers usually incident to the offices or
positions held by them respectively, and/or such other duties and
powers as may be assigned to them from time to time by the Board
of Directors or the Chief Executive Officer.
<PAGE>
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, AND EMPLOYEES
Section 1.
The Corporation shall indemnify to the full extent
permitted by, and in the manner permissible under the Delaware
General Corporation Law, as amended from time to time, any person
made, or threatened to be made, a party to any action, suit, or
proceeding, whether criminal, civil, administrative, or
investigative, by reason of the fact that such person (i) is or
was a director, advisory director, or officer of the Corporation
or any predecessor of the Corporation, or (ii) is or was a
director, advisory director or officer of the Corporation or any
predecessor of the Corporation and served any other corporation,
partnership, joint venture, trust or other enterprise as a
director, advisory director, officer, partner, trustee, employee
or agent at the request of the Corporation or any predecessor of
the Corporation. The foregoing rights of indemnification shall
not be deemed exclusive of any other rights to which any such
director, advisory director or officer may be entitled apart from
the provisions of this Article.
The Board of Directors in its discretion shall have power
on behalf of the Corporation to indemnify any person, other than
such a director, advisory director or officer, made a party to
any action, suit, or proceeding by reason of the fact that such
person, or the testator or intestate of such person, is or was an
employee of the Corporation.
Section 2.
Expenses incurred by a director, advisory director or
officer in defending a civil or criminal action, suit or
proceeding for which indemnification is required pursuant to
Section 1 shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, advisory
director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
Corporation as authorized by Delaware law. Such expenses incurred
by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
<PAGE>
ARTICLE VII.
STOCK
Section 1. Stock Certificates.
The interest of each stockholder of the Corporation shall
be evidenced by a certificate or certificates for shares of stock
in such form as the Board of Directors may from time to time
prescribe. The shares of the stock of the Corporation shall be
transferable on the books of the Corporation by the holder
thereof in person or by his attorney upon surrender for
cancellation of a certificate or certificates for the same number
of shares with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, and with such proof
of the validity of the signature as the Corporation or its agents
may reasonably require.
Section 2. Signatures.
The certificates of stock shall be signed by the Chairman,
President, or a Vice President and by the Secretary or an
Assistant Secretary, provided that if such certificates are
signed by a transfer agent or transfer clerk and by a registrar,
the signatures of such Chairman, President, Vice President,
Secretary, or Assistant Secretary may be facsimiles, engraved, or
printed.
Section 3. Replacement.
No certificate for shares of stock in the Corporation shall
be issued in place of any certificate alleged to have been lost,
stolen, or destroyed except upon production of such evidence of
such loss, theft, or destruction and upon delivery to the
Corporation of a bond of indemnity in such amount, and upon such
terms and secured by such surety as the Board of Directors or the
Executive Committee in its discretion may require.
ARTICLE VIII.
MISCELLANEOUS
Section 1. Seal.
The Corporation seal shall bear the name of the
Corporation, the date 1929 and the words "Corporate Seal,
Delaware".
Section 2. Fiscal Year.
The fiscal year of the Corporation shall begin on the first
day of January in each year and shall end on the thirty-first day
of December following.
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ARTICLE IX.
AMENDMENTS
Section 1.
These Bylaws, or any of them, may from time to time be
supplemented, amended, or repealed (a) by a majority vote of the
entire Board of Directors or (b) at any annual or special meeting
of the stockholders.
ARTICLE X.
EMERGENCY BYLAW
Section 1. Operative Event.
The Emergency Bylaw provided in this Article X shall be
operative during any emergency resulting from an attack on the
United States, any nuclear or atomic incident, or other event
which creates a state of disaster of sufficient severity to
prevent the normal conduct and management of the affairs and
business of the Corporation, notwithstanding any different
provision in the preceding articles of the Bylaws or in the
Certificate of Incorporation of the Corporation or in the General
Corporation Law of Delaware. To the extent not inconsistent with
this Emergency Bylaw, the Bylaws provided in the preceding
Articles shall remain in effect during such emergency and upon
the termination of such emergency the Emergency Bylaw shall cease
to be operative unless and until another such emergency shall
occur.
Section 2. Notice of Meeting.
During any such emergency, any meeting of the Board of
Directors may be called by any officer of the Corporation or by
any Director. Notice shall be given by such person or by any
officer of the Corporation. The notice shall specify the place of
the meeting, which shall be the head office of the Corporation at
the time if feasible and otherwise any other place specified in
the notice. The notice shall also specify the time of the
meeting. Notice may be given only to such of the Directors as it
may be feasible to reach at the time and by such means as may be
feasible at the time, including publication or radio. If given by
mail, messenger, telephone, or telegram, the notice shall be
addressed to the Directors at their residences or business
addresses, or such other places as the person giving the notice
shall deem most suitable. Notice shall be similarly given, to the
extent feasible, to the other persons serving as Directors
referred to in Section 3 below. Notice shall be given at least
two days before the meeting if feasible in the judgment of the
person giving the notice and otherwise on any shorter time he may
deem necessary.
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Section 3. Quorum.
During any such emergency, at any meeting of the Board of
Directors, a quorum shall consist of one-third of the number of
Directors fixed at the time pursuant to Article III of the
Bylaws. If the Directors present at any particular meeting shall
be fewer than the number required for such quorum, other persons
present, to the number necessary to make up such quorum, shall be
deemed Directors for such particular meeting as determined by the
following provisions and in the following order of priority:
(a) All Executive Vice Presidents of the Corporation in
order of their seniority of first election to such office,
or if two or more shall have been first elected to such
office on the same day, in the order of their seniority in
age; and
(b) All Senior Vice Presidents of the Corporation in order
of their seniority of first election to such office, or if
two or more shall have been first elected to such office on
the same day, in the order of their seniority in age; and
(c) All Vice Presidents of the Corporation in order of
their seniority of first election to such office, or if two
or more shall have been first elected to such office on the
same day, in the order of their seniority in age; and
(d) Any other persons that are designated on a list that
shall have been approved by the Board of Directors before
the emergency, such persons to be taken in such order of
priority and subject to such conditions as may be provided
in the resolution approving the list.
Section 4. Lines of Management Succession.
The Board of Directors, during as well as before any such
emergency, may provide and from time to time modify lines of
succession in the event that during such an emergency any or all
officers or agents of the Corporation shall for any reason be
rendered incapable of discharging their duties.
Section 5. Office Relocation.
The Board of Directors, during as well as before any such
emergency, may, effective in the emergency, change the head
office or designate several alternative head offices or regional
offices, or authorize the officers to do so.
Section 6. Liability.
No officer, director, or employee acting in accordance with
this Emergency Bylaw shall be liable except for willful
misconduct.
Section 7. Repeal or Amendment.
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This Emergency Bylaw shall be subject to repeal or change
by further action of the Board of Directors or by action of the
stockholders, except that no such repeal or change shall modify
the provisions of the next preceding paragraph with regard to
action or inaction prior to the time of such repeal or change.
Any such amendment of this Emergency Bylaw may make any further
or different provision that may be practical and necessary for
the circumstances of the emergency deems it to be in the best
interest of the Corporation to do so.
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