-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T4Fyti8wv8TOchgvX6QmQzzHkm5PbA/L5NU6agDvceFt1UyRh8+LUmopiLeXBBGc Df8G/GJaPyZV2ZosOphR5g== 0000912057-95-008453.txt : 19951011 0000912057-95-008453.hdr.sgml : 19951011 ACCESSION NUMBER: 0000912057-95-008453 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19951010 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST BANK SYSTEM INC CENTRAL INDEX KEY: 0000036104 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 410255900 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-61667 FILM NUMBER: 95579686 BUSINESS ADDRESS: STREET 1: FIRST BANK PL STREET 2: 601 SECOND AVE S CITY: MINNEAPOLIS STATE: MN ZIP: 55402-4302 BUSINESS PHONE: 6129731111 FORMER COMPANY: FORMER CONFORMED NAME: FIRST BANK STOCK CORP DATE OF NAME CHANGE: 19720317 S-3/A 1 FORM S-3/A As filed with the Securities and Exchange Commission on October __, 1995 Registration No. 33-61667 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- Amendment No. 1 to FORM S-3 REGISTRATION STATEMENT Under The Securities Act of 1933 ---------- FIRST BANK SYSTEM, INC. (Exact name of registrant as specified in its charter) Delaware 41-0255900 (State or other jurisdiction (I.R.S Employer of incorporation or organization) Identification No.) First Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402-4302 (612) 973-1111 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Lee R. Mitau Copy to: First Bank System, Inc. Patrick F. Courtemanche First Bank Place Dorsey & Whitney P.L.L.P. 601 Second Avenue South 220 South Sixth Street Minneapolis, Minnesota 55402-4302 Minneapolis, Minnesota 55402 (612) 973-1111 (612) 340-2780 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. ---------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / ---------- If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ ---------- If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / ___________ ---------- If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / ___________ ---------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / ---------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PROSPECTUS SUBJECT TO COMPLETION, DATED OCTOBER 10, 1995 FIRST BANK SYSTEM, INC. --------------- 41,000 SHARES OF COMMON STOCK ($1.25 PAR VALUE) ------------------- This Prospectus relates to an aggregate of 41,000 shares (the "Shares") of common stock, par value $1.25 per share (the "Common Stock"), of First Bank System, Inc., a Delaware corporation (the "Company" or "FBS"), reserved for issuance upon exercise of warrants (the "Warrants") to be issued by the Company pursuant to the settlement of a class action lawsuit (the "Class Action") entitled PHILLIP DISMUKE, ET AL. V. EDINA REALTY, INC. filed in Minnesota State Court, Hennepin County, Court File No. 92-8716. Each Warrant entitles the holder thereof to purchase Shares at an exercise price of $40.50 per share, subject to certain adjustments, at any time, until the expiration of the Warrants at 5:00 p.m. New York time on May 17, 2005. Assuming the Warrants are exercised in full at their initial exercise price, the Company will receive proceeds in the amount of $1,660,500 before deducting estimated expenses of $67,000. See "Use of Proceeds." The Company will pay all expenses with respect to this offering. The Common Stock is traded on the New York Stock Exchange. On August 7, 1995, the closing price of the Common Stock on the New York Stock Exchange was $43.375 per share. --------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR SAVINGS ASSOCIATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND, SAVINGS ASSOCIATION INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY. ----------------- No person has been authorized to give any information or to make any representations other than those contained in this Prospectus in connection with the offer contained herein, and, if given or made, such information or representations must not be relied upon as having been authorized by the Company. This Prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities offered hereby in any jurisdiction in which it is not lawful or to any person to whom it is not lawful to make any such offer or solicitation. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create any implication that information herein is correct as of any time subsequent to the date hereof. The date of this Prospectus is October __, 1995. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy statements and other information concerning the Company can be inspected and copied at the public reference facilities of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at 7 World Trade Center, Suite 1300, New York, New York 10048 and CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, the Common Stock of the Company is listed on the New York Stock Exchange, and reports, proxy statements and other information concerning the Company can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. The Company has filed a registration statement on Form S-3 (together with all amendments and exhibits thereto, including documents and information incorporated by reference, the "Registration Statement") with the Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the Shares. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement. Statements contained in this Prospectus as to the contents of any document are not necessarily complete, and in each instance reference is made to such document itself, each such statement being qualified in all respects by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents of the Company which have been filed with the Commission are hereby incorporated by reference in this Prospectus: (a) the Company's Annual Report on Form 10-K for the year ended December 31, 1994; (b) the Company's Quarterly Report on Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995; (c) the Company's Current Reports on Form 8-K filed March 3, 1995 (as amended by Amendment No. 1 on Form 8-K/A filed March 7, 1995), filed April 13, 1995, filed April 25, 1995, filed July 6, 1995, filed August 18, 1995 (as amended by Amendment No. 1 on Form 8-K/A filed August 30, 1995) and filed September 11, 1995; (d) the Company's Current Report on Form 8-K/A filed February 13, 1995 (constituting Amendment No. 4 to the Current Report on Form 8-K filed August 5, 1994); and (e) the description of the Company's Common Stock contained in Item 1 of the Company's Registration Statement on Form 8-A dated March 19, 1984, as amended in its entirety by that Form 8 Amendment dated February 26, 1993, and that Form 8-A/A-2 dated October 6, 1994, and any amendment or report filed for the purpose of updating such description filed subsequent to the date of this Prospectus and prior to the termination of the offering described herein; and the description of the rights to purchase preferred stock contained in Item 1 of the Company's Registration Statement on Form 8-A dated December 21, 1988, as amended by that Form 8 Amendment dated June 11, 1990, and as amended in its entirety by that Form 8 Amendment dated February 26, 1993, and any amendment or report filed for the purpose of updating such description filed subsequent to the date of this Prospectus and prior to the termination of the offering described herein. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Common Stock shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the respective dates of filing of such documents. Any statement contained herein or in a document all or part of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to any person to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the foregoing documents incorporated herein by reference (excluding exhibits unless specifically incorporated therein). Requests for such copies should be directed to -2- Karin E. Glasgow, First Bank System, Inc., First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4302, telephone number (612) 973- 1111. FIRST BANK SYSTEM, INC. GENERAL The Company is a regional bank holding company headquartered in Minneapolis, Minnesota. The Company is comprised of eight banks, a savings association and other financial companies with 350 offices primarily in the 11 states of Minnesota, Colorado, North Dakota, South Dakota, Montana, Illinois, Wisconsin, Iowa, Kansas, Nebraska and Wyoming. Through its subsidiaries, the Company provides commercial and agricultural finance, consumer banking, trust, capital markets, treasury management, investment management, data processing, leasing, mortgage banking and brokerage services. At September 30 1995, the Company and its consolidated subsidiaries had consolidated assets of $33.0 billion, consolidated deposits of $21.9 billion and shareholders' equity of $2.7 billion. The subsidiary banks of the Company engage in general commercial banking business, principally in domestic markets, and provide banking and ancillary services to individuals, businesses, institutional organizations, governmental entities and other financial institutions. The largest subsidiary bank, First Bank National Association ("FBNA"), had assets of $15.4 billion at September 30, 1995. The Company is a legal entity separate and distinct from its banking and non-banking affiliates. The principal sources of the Company's income are dividends, interest and fees from FBNA and the other banking and non-banking affiliates. Certain restrictions exist regarding the extent to which bank and thrift subsidiaries may transfer funds to the Company in the form of dividends, loans or advances. Federal law prevents the Company and its nonbank subsidiaries from borrowing from bank and thrift subsidiaries unless the loans are secured by various types of collateral. Further, these secured loans that may be made by bank and thrift subsidiaries to the Company or any individual affiliate are generally limited to 10 percent of the bank's or thrift's equity and 20 percent of the bank's or thrift's equity for loans to all affiliates and the Company in the aggregate. In addition, payment of dividends to the Company by its subsidiary banks and thrift is subject to review by regulatory agencies and is subject to various statutory limitations and in certain circumstances requires approval by regulatory agencies. The Company was incorporated under Delaware law in 1929 and has functioned as a multi-bank holding company since that time. Its principal executive offices are located at First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4302 (telephone (612) 973-1111). For further information concerning the Company, see the Company documents incorporated by reference herein as described under "Incorporation of Certain Documents by Reference." RECENT DEVELOPMENTS The Company reported third quarter 1995 net income of $145.7 million, an increase of $33.2 million, or 30 percent, from the third quarter of 1994. On a per share basis, earnings increased 35 percent to $1.08, compared with $.80 for the year-earlier quarter. The Company's net income for the first nine months was $417.4 million, or $3.05 per share, compared with $340.3 million, or $2.43 per share, for the first nine months of 1994. Return on average assets and return on average common equity in the third quarter of 1995 were 1.76 percent and 21.2 percent, respectively, compared with 1.32 percent and 16.5 percent in the third quarter of 1994. The net interest margin on a taxable-equivalent basis strengthened 11 basis points from the third quarter of 1994 to 4.85 percent. The efficiency ratio, the ratio of expenses to revenues, continued to improve, to 53.9 percent from 57.9 percent for the third quarter of 1994. Strong third quarter results reflected noninterest income growth, ongoing expense control, and effective capital management. Third quarter noninterest income was $216.5 million, an increase of $46.2 million, or 27 percent, from the same quarter of 1994. The increase was primarily due to a $31 million gain on the sale of 63 branches, a $13.5 million increase (27 percent) in credit card fees, and a $3.9 million increase (10 percent) in trust fees. Third quarter noninterest expense totaled $311.1 million, a decrease of $1.5 million, or 0.5 percent, from the third quarter of 1994. In the third quarter, the Company expensed unamortized software costs of approximately $23 million, primarily related to a change in the Company's policy to expense software costs, and also recorded a charge of approximately $8 million to write off miscellaneous other assets. In addition, the Company received an FDIC premium rebate of approximately $10 million. Net interest income on a taxable-equivalent basis was $360.5 million, a decrease of $6.5 million, or 2 percent compared with the third quarter of 1994. This decrease was primarily attributable to a $1.2 billion (4 percent) decrease in total earning assets, an increase in funding costs, and the repurchase of common stock. The provision for credit losses for the quarter was up $4.0 million, or 15 percent, to $31.0 million from third quarter 1994. Nonperforming assets declined to $166.9 million at September 30, 1995, down $65.4 million, or 28 percent, from $232.3 million at December 31, 1994. The ratio of the allowance for credit losses to nonperforming loans at quarter-end was 400 percent compared with 283 percent at the end of 1994. On September 7, 1995, the Company announced that it will seek a buyer for most of its mortgage banking company and that it will instead deliver mortgage loan products through bank branches and telemarketing. On September 20, 1995, the Company announced an agreement to sell its Edina Realty and Equity Title Services operations to a local investor group. -3- USE OF PROCEEDS Assuming that all of the Warrants are exercised in full at their initial exercise price, the Company will receive proceeds of approximately $1,660,500, before deducting expenses payable by the Company estimated at $67,000. Any proceeds to the Company from the sale of any Shares upon exercise of the Warrants will be used for working capital and other general corporate purposes. DESCRIPTION OF WARRANTS AND PLAN OF DISTRIBUTION On January 24, 1995, the Company completed its merger with Metropolitan Financial Corporation ("MFC"), a publicly held regional financial services holding company headquartered in Minneapolis, Minnesota (the "Merger"). Prior to the Merger, Edina Realty, Inc. ("Edina"), a wholly owned subsidiary of MFC, agreed to settle the Class Action, and Edina and MFC executed an Amended Settlement Agreement dated as of February 8, 1994, which, among other things, provided for the distribution to class members of warrants to purchase stock of MFC. On July 21, 1994, the Company signed a definitive agreement to acquire MFC. On October 12, 1994, Edina and MFC executed an Addendum to the February 8, 1994, Amended Settlement Agreement, which provided for the issuance of warrants to purchase shares of common stock of the Company instead of warrants to purchase shares of common stock of MFC subject to the completion of the Merger. The Company has issued the Warrants as part of the Class Action settlement. The Shares offered hereby are being offered by the Company to holders of Warrants. The Company will reserve 50,000 shares of Common Stock for issuance upon exercise of the Warrants. The Warrants were issued in fully registered, certificated form ("Warrant Certificates") under the provisions of a Warrant Agreement dated as of October 2, 1995 (the "Warrant Agreement"), between the Company and First Chicago Trust Company of New York, as Warrant Agent (the "Warrant Agent"). Each Warrant entitles the registered holder thereof (the "Warrantholder") to purchase one share of Common Stock until May 17, 2005. A Warrantholder may exercise a Warrant by surrendering the Warrant Certificate, with the form of election to purchase set forth thereon properly completed and executed, together with payment of the exercise price at the office or agency maintained by the Company for that purpose (initially the corporate trust office of the Warrant Agent but is subject to change by the Company). Payment of the aggregate Exercise Price shall be made by certified or official bank check. The Warrant Agent will return a certificate evidencing the number of Shares issued upon exercise of the Warrant, together with a new Warrant Certificate if less than all of the Shares covered by the Warrant Certificate are being purchased. The Warrant Agreement provides that, upon the occurrence of certain -4- events, the Exercise Price may, subject to certain conditions, be adjusted. When delivered, Shares shall be fully paid and nonassessable. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash equal to the same fraction of the current market value (as determined pursuant to the Warrant Agreement) of a full Warrant or a full Share, as the case may be. The outline above is subject to the provisions of the Warrants and the Warrant Agreement. Copies of the form of Warrant Certificate and the Warrant Agreement have been filed as exhibits to the Registration Statement of which this Prospectus is a part and reference is made to such exhibits for a detailed description of the provisions thereof summarized above. EXPERTS The consolidated financial statements of the Company for the year ended December 31, 1994, appearing in the Company's Current Report on Form 8-K filed March 3, 1995, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The consolidated financial statements of FirsTier Financial, Inc. and subsidiaries appearing in the Current Report on Form 8-K of the Company filed on August 18, 1995, as amended by the Current Report on Form 8-K/A of the Company filed August 30, 1995, have been audited by Arthur Andersen LLP, independent public accountants, as set forth in their report thereon included therein. Such consolidated financial statements are incorporated herein by reference in reliance upon the authority of said firm as experts in accounting and auditing. LEGAL MATTERS The validity of the Shares offered hereby has been passed upon for the Company by Dorsey & Whitney P.L.L.P., 220 South Sixth Street, Minneapolis, Minnesota 55402. The Dorsey & Whitney P.L.L.P. firm and certain of its members are indebted to and have other banking and trust relationships with certain banking subsidiaries of the Company. -5- PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration Fee . . . . . . . . $ 573 Listing Fees . . . . . . . . . . . . 14,750 Accounting Fees and Expenses . . . . 3,000 Legal Fees and Expenses. . . . . . . 30,000 Printing . . . . . . . . . . . . . . 15,000 Miscellaneous. . . . . . . . . . . . 3,677 ------ Total. . . . . . . . . . . . $67,000 ------ ------
All fees and expenses other than the SEC registration fee are estimated. The expenses listed above will be paid by the Company. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under Delaware law, the directors and officers of First Bank System, Inc. (the "Company") are entitled, under certain circumstances, to be indemnified by the Company against all expenses and liabilities incurred or imposed upon them as a result of suits brought against them as such directors and officers, if they act in good faith and in a manner they reasonably believe to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, have no reasonable cause to believe their conduct was unlawful, except that no indemnification shall be made against expenses in respect of any claim, issue or matter as to which they shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, they are fairly and reasonably entitled to be indemnified for such expenses which such court shall deem proper. Any such indemnification may be made by the Company only as authorized in each specific case upon a determination by the stockholders or disinterested directors that indemnification is proper because the indemnitee has met the applicable statutory standard of conduct. Article Ninth of the Company's Restated Certificate of Incorporation, as amended, provides that a director shall not be liable to the Company or its stockholders for monetary damages for a breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under the Delaware statutory provisions making directors personally liable for unlawful dividends or unlawful stock repurchases or redemptions or (iv) for any transaction from which the director derived an improper personal benefit. The Bylaws of the Company provide that the officers and directors of the Company and certain others shall be indemnified substantially to the same extent as permitted by Delaware Law. The Company maintains a standard policy of officers' and directors' liability insurance. ITEM 16. LIST OF EXHIBITS 4.1 Specimen certificate representing the Common Stock of the Company (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3, dated January 7, 1991, File No. 33-38268). 4.2 Restated Certificate of Incorporation of the Company, as amended to date (incorporated by reference to Exhibit 2.1 to the Company's Form 8-A/A-2, dated October 6, 1994, File No. 1-6880). II-1 4.3 Certificate of Designation for First Bank System, Inc. Series 1990A Preferred Stock. (Incorporated by reference to Exhibit 4.4 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.4 Certificate of Designation for First Bank System, Inc. Series 1991A Convertible Preferred Stock. (Incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-4, File No. 33-50700). 4.5 Certificate of Designation for First Bank System, Inc. Series A Junior Participating Preferred Stock, as amended. (Incorporated by reference to Exhibit 2.4 to the Registrant's Form 8-A/A-2 dated October 6, 1994, File No. 1-6880.) 4.6 Bylaws of the Company, as amended to date (incorporated by reference to Exhibit 3B to the Company's Annual Report on Form 10-K for the year ended December 31, 1993, File No. 1-6880). 4.7 Rights Agreement dated as of December 21, 1988 between the Company and Morgan Shareholder Services Trust Company (now known as First Chicago Trust Company of New York) (incorporated by reference to Exhibit 1 to the Company's Current Report on Form 8-K filed January 5, 1989, File No. 1-6880). 4.8 Amendment No. 1, dated as of May 30, 1990, to Rights Agreement (incorporated by reference to Exhibit 4(a) to the Company's Current Report on Form 8-K dated June 5, 1990, File No. 1-6880). 4.9 Amendment No. 2, dated as of February 17, 1993, to Rights Agreement (incorporated by reference to Exhibit 4(a) to the Company's Current Report on Form 8-K filed March 1, 1993, File No. 1-6880). 4.10 Stock Purchase Agreement, dated as of May 30, 1990, among Corporate Partners, L.P., Corporate Offshore Partners, L.P., The State Board of Administration of Florida and First Bank System, Inc. (without exhibits). (Incorporated by reference to Exhibit 4.8 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.11 First Amendment, dated as of June 30, 1990, to Stock Purchase Agreement among Corporate Partners, L.P., Corporate Offshore Partners, L.P., The State Board of Administration of Florida and First Bank System, Inc. (Incorporated by reference to Exhibit 4.9 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.12 Second Amendment, dated as of July 18, 1990, to Stock Purchase Agreement among Corporate Partners, L.P., Corporate Offshore Partners, L.P., The State Board of Administration of Florida and First Bank System, Inc. (Incorporated by reference to Exhibit 4.10 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.13 Stock Purchase Agreement, dated as of May 30, 1990, between The State Board of Administration of Florida and First Bank System, Inc. (without exhibits). (Incorporated by reference to Exhibit 4.11 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.14 Form of Periodic Stock Purchase Right. (Incorporated by reference to Exhibit 4.12 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.15 Form of Risk Event Warrant. (Incorporated by reference to Exhibit 4.13 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). II-2 4.16 Registration Rights Agreement, dated as of July 18, 1990, among Corporate Partners, L.P., Corporate Offshore Partners, L.P., The State Board of Administration of Florida and First Bank System, Inc. (Incorporated by reference to Exhibit 4.14 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33-42650). 4.17 Registration Rights Agreement, dated as of July 18, 1990, between The State Board of Administration of Florida and First Bank System, Inc. (Incorporated by reference to Exhibit 4.14 to Amendment No. 1 to the Company's Registration Statement on Form S-3, File No. 33- 42650). 4.18 Warrant Agreement, dated as of October 2, 1995, between the Company and First Chicago Trust Company of New York as Warrant Agent.* 4.19 Form of Warrant Certificate.* 5 Opinion of Dorsey & Whitney P.L.L.P. regarding legality.* 23.1 Consent of Ernst & Young LLP.* 23.2 Consent of Arthur Andersen LLP.* 23.3 Consent of Dorsey & Whitney P.L.L.P. (included in Exhibit 5 to this Registration Statement).* 24 Powers of Attorney.** --------------------- * Filed herewith. ** Previously filed. ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change to such information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 320% change in the "maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change in the information set forth in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered II-3 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on October 10, 1995. FIRST BANK SYSTEM, INC. By /s/ John F. Grundhofer ---------------------------------------------- John F. Grundhofer Chairman, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE AND TITLE DATE /s/ John F. Grundhofer _____________________________________________ October 10, 1995 John F. Grundhofer, Chairman, President, Chief Executive Officer and Director (principal executive officer) /s/ Richard A. Zona _____________________________________________ October 10, 1995 Richard A. Zona, Vice Chairman and Chief Financial Officer (principal financial officer) /s/ David J. Parrin _____________________________________________ October 10, 1995 David J. Parrin, Senior Vice President and Controller (principal accounting officer) ____________________________________________ Roger L. Hale, Director * ____________________________________________ October 10, 1995 Delbert W. Johnson, Director * ____________________________________________ October 10, 1995 John H. Kareken, Director II-5 * ____________________________________________ October 10, 1995 Richard L. Knowlton, Director ____________________________________________ Jerry W. Levin, Director * ____________________________________________ October 10, 1995 Kenneth A. Macke, Director * ____________________________________________ October 10, 1995 Marilyn C. Nelson, Director * ____________________________________________ October 10, 1995 Edward J. Phillips, Director * ____________________________________________ October 10, 1995 James J. Renier, Director * ____________________________________________ October 10, 1995 S. Walter Richey, Director * ____________________________________________ October 10, 1995 Richard L. Robinson, Director * ____________________________________________ October 10, 1995 Richard L. Schall, Director * ____________________________________________ October 10, 1995 Lyle E. Schroeder, Director * By /s/ David J. Parrin _______________________________________ David J. Parrin Pro se and as Attorney-in-Fact II-6 INDEX TO EXHIBITS Exhibit Number Description of Exhibit Form of Filing - ------- ---------------------- -------------- 4.18 Warrant Agreement, dated as of October 2, 1995, between the Company and First Chicago Trust Company of New York as Warrant Agent. Electronic Transmission 4.19 Form of Warrant Certificate . . . . . . . . Electronic Transmission 5. Opinion of Dorsey & Whitney P.L.L.P. regarding legality. . . . . . . . . . . . . Electronic Transmission 23.1 Consent of Ernst & Young LLP. . . . . . . . Electronic Transmission 23.2 Consent of Arthur Andersen LLP. . . . . . . Electronic Transmission 23.3 Consent of Dorsey & Whitney P.L.L.P. (included in Exhibit 5 to this Registration Statement). . . . . . . . . . . . . . . . . Electronic Transmission EX-4.18 2 EXH 4.18 WARRANT AGREEMENT - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- FIRST BANK SYSTEM, INC. and FIRST CHICAGO TRUST COMPANY OF NEW YORK as Warrant Agent ---------------------------- WARRANT AGREEMENT Dated as of October 2, 1995 ----------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- TABLE OF CONTENTS* Page Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1. Appointment of Warrant Agent. . . . . . . . . . . . . . . . 1 Section 2. Form of Warrant Certificates. . . . . . . . . . . . . . . . 1 Section 3. Execution and Countersignature of Warrant Certificates. . . 2 Section 4. Registration. . . . . . . . . . . . . . . . . . . . . . . . 3 Section 5. Registration of Transfers and Exchanges . . . . . . . . . . 3 Section 6. Duration and Exercise of Warrants and Residual Value. . . . 4 Section 7. Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . 6 Section 8. Mutilated or Missing Warrant Certificates . . . . . . . . . 7 Section 9. Reservation of Shares . . . . . . . . . . . . . . . . . . . 7 Section 10. Obtaining of Governmental Approvals and Stock Exchange Listings. . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 11. Adjustments of Exercise Price and Number of Shares Purchasable or Number of Warrants . . . . . . . . . . . . . 8 Section 12. Fractional Warrants and Fractional Shares . . . . . . . . . 15 Section 13. Notices to Warrantholders Upon Adjustment of Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 14. Warrant Certificate Holder Not Deemed a Stockholder . . . . 19 Section 15. Merger, Consolidation or Change of Name of Warrant Agent. . 19 Section 16. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 20 Section 17. Disposition of Proceeds of Exercise of Warrants . . . . . . 23 Section 18. Change of Warrant Agent . . . . . . . . . . . . . . . . . . 23 Section 19. Identity of Transfer Agent. . . . . . . . . . . . . . . . . 24 Section 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 21. Supplements and Amendments. . . . . . . . . . . . . . . . . 26 Section 22. Delivery of Prospectuses. . . . . . . . . . . . . . . . . . 26 Section 23. Successors. . . . . . . . . . . . . . . . . . . . . . . . . 27 Section 24. Termination . . . . . . . . . . . . . . . . . . . . . . . . 27 Section 25. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 27 Section 26. Benefits of This Agreement. . . . . . . . . . . . . . . . . 27 Section 27. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 27 Section 28. Captions. . . . . . . . . . . . . . . . . . . . . . . . . . 28 Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Exhibit A. Form of Warrant Certificate . . . . . . . . . . . . . . . . A-1 - ---------- * This Table of Contents does not constitute a part of this Agreement or have any bearing upon the interpretation of any of its terms or provisions. - i - WARRANT AGREEMENT dated as of October 2, 1995, between First Bank System, Inc., a Delaware corporation (the "Company"), and First Chicago Trust Company of New York, a corporation duly organized and existing under the laws of the State of New York, as Warrant Agent (the "Warrant Agent"). WHEREAS, the Company proposes to issue a maximum of 50,000 warrants entitling the holders thereof to purchase an aggregate of a maximum of 50,000 shares of its common stock, $1.25 par value (the "Common Stock") (such shares being hereinafter referred to as the "Shares"); such warrants being herein referred to as the "Warrants" and the certificates evidencing the Warrants being hereinafter referred to as "Warrant Certificates"; and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, registration, transfer, exchange, replacement and exercise of Warrant Certificates and other matters as provided herein; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. SECTION 2. FORM OF WARRANT CERTIFICATES. The Warrant Certificates to be delivered pursuant to this Agreement shall be in registered form only and shall be substantially in the form set forth in Exhibit A attached hereto. -1- SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES. Warrant Certificates shall be signed on behalf of the Company by the person who, at the date of such execution, shall be its President, Chief Executive Officer, or a Vice President and by its Secretary or an Assistant Secretary, and such execution shall be under the Company's corporate seal. Each such signature upon the Warrant Certificates may be in the form of a facsimile signature of the present or any future President, Chief Executive Officer, Vice President, Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on the Warrant Certificates, and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been President, Chief Executive Officer, a Vice President, Secretary or an Assistant Secretary on the date of such adoption and use by the Company. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates. In case any officer of the Company who shall have signed, or whose facsimile signature shall have been imprinted by or at the Company's order on, any of the Warrant Certificates shall cease to be such officer before the Warrant Certificates so signed or imprinted shall have been countersigned by the Warrant Agent or disposed of by the Company, such Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such person had not ceased to be such officer of the Company. In connection with the initial issuance of the Warrant Certificates, upon receipt of Warrant Certificates executed by the Company and a written order of the Company executed by its President, Chief Executive Officer or a Vice President and -2- by its Secretary or an Assistant Secretary (a "Company Order"), the Warrant Agent shall countersign and deliver Warrant Certificates in accordance with the instructions contained in such order. At any time and from time to time after the execution and delivery of this Warrant Agreement, the Company may deliver Warrant Certificates executed by the Company to the Warrant Agent, together with a Company Order for the countersignature and delivery by the Warrant Agent of such Warrant Certificates, and the Warrant Agent in accordance with such Company Order shall countersign and deliver such Warrant Certificates as in this Warrant Agreement provided and not otherwise. Warrant Certificates shall be dated the date of countersignature by the Warrant Agent. SECTION 4. REGISTRATION. Warrant Certificates distributed as provided in Section 11 shall be registered in the names of the record holders of the Warrant Certificates to whom they are to be distributed. The Company and the Warrant Agent may deem and treat the registered holder of a Warrant Certificate as the absolute owner thereof for all purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES. The Warrant Agent shall from time to time register the transfer of any outstanding Warrant Certificates upon the records to be maintained by it for that purpose (the "Warrant Register"), upon surrender thereof to the Warrant Agent at its office maintained for the -3- purpose of registration of the issuance, exchange, transfer or exercise of the Warrants at the location specified in Section 20 of this Agreement (the "Warrant Agent Office"), accompanied (if so required by the Warrant Agent or by the Company) by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent or the Company, as the case may be, duly executed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney. Upon any such registration of transfer, a new Warrant Certificate or Warrant Certificates of like tenor and representing in the aggregate a like number of Warrants shall be issued to the transferee. Warrant Certificates may be exchanged at the option of the holders thereof, when surrendered to the Warrant Agent at the Warrant Agent Office, for a new Warrant Certificate or new Warrant Certificates of like tenor and representing in the aggregate a like number of Warrants. Warrant Certificates surrendered for exchange, transfer or exercise shall be canceled by the Warrant Agent. Such canceled Warrant Certificates shall then be disposed of by the Warrant Agent in a manner satisfactory to the Company. SECTION 6. DURATION AND EXERCISE OF WARRANTS AND RESIDUAL VALUE. The Warrants shall expire at 5:00 p.m. New York time on May 17, 2005 (such date of termination being herein referred to as the "Termination Date"). Each Warrant may be exercised on any Business Day (as hereinafter defined) during the period commencing at the opening of business on the date on or after May 18, 1995, that Warrants are first issued pursuant to this Agreement (or the next day thereafter on which banks in New York City are not required or authorized to be closed (a "Business Day") if the date of such issuance is not a Business Day) and ending at -4- the close of business on the Termination Date (or the next preceding Business Day if the Termination Date is not a Business Day) (the "Exercise Period"). Subject to the provisions of this Agreement, during the Exercise Period the holder of each Warrant shall have the right to purchase from the Company (and the Company shall issue and sell to such holder) one (or such other number as shall be determined by adjustment pursuant to the provisions of Section 11 hereof) fully paid and nonassessable whole Share at an exercise price of $40.50 per share (such exercise price as the same may be adjusted from time to time pursuant to the provisions of Section 11 hereof, being herein referred to as the "Exercise Price") upon the surrender on any Business Day during such Exercise Period to the Warrant Agent at the Warrant Agent Office of the Warrant Certificate evidencing such Warrant, with the form of election to purchase on the reverse thereof duly filled in and signed, and upon payment to the Warrant Agent for the account of the Company of the Exercise Price in lawful money of the United States of America. Payment of the aggregate Exercise Price shall be made by certified or official bank check. The Warrants evidenced by a Warrant Certificate shall be exercisable during the Exercise Period, at the election of the registered holder thereof, either as an entirety or from time to time for part of the number of Warrants specified in the Warrant Certificate. In the event that less than all the Warrants evidenced by a Warrant Certificate surrendered upon the exercise of Warrants are exercised at any time prior to the close of business on the Termination Date, a new Warrant Certificate or Certificates will be issued for the remaining number of Warrants evidenced by the Warrant Certificate so surrendered. -5- Subject to Section 7, upon such surrender of a Warrant Certificate and payment of the Exercise Price, the Warrant Agent shall requisition from the transfer agent for the Shares for issuance and delivery to or upon the written order of the registered holder of such Warrant Certificate and in such name or names as such registered holder may designate a certificate or certificates for the Share or Shares issuable upon such exercise. Such certificate shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become the holder of record of such Share or Shares as of the date of the surrender of such Warrant Certificate and payment of the Exercise Price. SECTION 7. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes attributable to the issuance of Warrant Certificates or the issuance of Shares upon the exercise of Warrants; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issue of any Warrant Certificates, or in respect of the issue of any certificates for Shares upon exercise of Warrants, in a name other than that of the registered holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 8. MUTILATED OR MISSING WARRANT CERTIFICATES. In case any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company may in its discretion issue, and the Warrant Agent shall, upon the order of the Company, -6- countersign and deliver, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and indemnity or bond, if requested, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such sums as the Company may require to cover any fees and expenses (including the fees and expenses of the Warrant Agent) in connection therewith. SECTION 9. RESERVATION OF SHARES. The Company will at all times through the close of business on the Termination Date reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Common Stock, for the purpose of enabling it to satisfy any obligation to issue Shares upon exercise of Warrants, the number of Shares deliverable upon the exercise of all outstanding Warrants. Before taking any action which would cause an adjustment pursuant to Section 11 reducing the Exercise Price below the then par value (if any) of the Shares issuable upon exercise of the Warrants, the Company will take any corporate action which may, in the opinion of its counsel (which may be counsel employed by the Company), be necessary in order that the Company may validly and legally issue fully paid and nonassessable Shares at the Exercise Price as so adjusted. -7- The Company represents and warrants that all Shares issued upon exercise of the Warrants will, upon issuance in accordance with the terms of this Agreement, be duly authorized, validly issued, fully paid and nonassessable and free from all liens and security interests thereon created by the Company. SECTION 10. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE LISTINGS. The Company covenants that if any of the Shares required to be reserved for purposes of exercise of Warrants require, under any federal securities law or applicable governing rule or regulation of any national securities exchange, registration or approval of any governmental authority, or listing on any such national securities exchange before the Shares may be issued upon exercise, the Company will in good faith prior to the issuance of the Shares endeavor to cause the Shares to be duly registered, approved or listed on the relevant national securities exchange, as the case may be; provided, however, that in no event shall such Shares be issued, and the Company is hereby authorized to suspend the exercise of all Warrants, for the period during which such registration, approval or listing is required but not in effect. SECTION 11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE OR NUMBER OF WARRANTS. The Exercise Price and the number of Shares purchasable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 11. (a) In case the Company shall at any time after the date of this Agreement (i) declare a dividend on the Common Stock payable in shares of Common Stock, -8- (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable upon exercise of a Warrant shall on such date be proportionately adjusted to the extent necessary so that the holder of any Warrant exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Warrant had been exercised immediately prior to such date, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above in this paragraph (a) shall occur. (b) In case the Company shall issue rights or warrants to all holders of Common Stock entitling them (for a period expiring within 45 calendar days after the date of issuance) to subscribe for or purchase Common Stock (or securities convertible into Common Stock) at a price per share of Common Stock (or having a conversion price per share of Common Stock, if a security convertible into Common Stock) less than the current market price per share of Common Stock (as defined in Section 11(d)) on the record date mentioned below, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise -9- Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so to be offered (or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined by the Board of Directors of the Company. Shares of Common Stock owned by or held for the account of the Company or any majority-owned subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, but such subsequent adjustment shall not affect the number of Shares issued upon any exercise of Warrants prior to the date such adjustment is made. (c) In case the Company shall fix a record date for the making of a distribution to all holders of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing -10- corporation) of evidences of indebtedness or assets (other than cash dividends or cash distributions payable out of consolidated earnings or earned surplus or dividends payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the current market price per share of Common Stock (as defined in Section 11(d)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive, and described in a statement filed with the Warrant Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that it is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record had not been fixed. (d) For the purpose of any computation under Section 11(b) or (c), the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices for the 30 consecutive trading days on the New York Stock Exchange commencing 45 trading days before such date. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or -11- admitted to trading on such exchange, on the principal national securities exchange on which Common Stock is listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the highest reported bid and lowest reported asked price as furnished by the National Association of Securities Dealers ("NASD") or similar organization if the NASD is no longer reporting such information. (e) No adjustment in the Exercise Price shall be required unless such adjustments would require an increase or decrease of at least 1% in such price; PROVIDED, HOWEVER, that any adjustments which by reason of this Section 11(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (f) In the event that at any time, as a result of an adjustment made pursuant to Section 11(a), the holder of any Warrant thereafter exercised shall become entitled to receive any shares of capital stock of the Company other than shares of Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Shares contained in Sections 11(a) through (c), inclusive, and the provisions of Sections 6, 7, 9, 10, 11(e), 11(j) and 12 with respect to the Shares shall apply on like terms to any such other shares. (g) In any case in which this Section 11 shall require that an adjustment in the Exercise Price be made effective as of record date for a specified event, the -12- Company may elect to defer until the occurrence of such event the issuing to the holder of any Warrant exercised after such record date the Shares and other capital stock of the Company, if any, issuable upon such exercise over and above the Shares and other capital stock of the Company, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; PROVIDED, HOWEVER, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment. (h) Unless the Company shall have exercised its election as provided in Section 11(i), upon each adjustment of the Exercise Price as a result of the calculations made in Section 11(a), (b) or (c), each Warrant outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Shares (calculated to the nearest hundredth) obtained by (i) multiplying the number of Shares purchasable upon exercise of a Warrant immediately prior to such adjustment of the number of Shares by the Exercise Price in effect immediately prior to such adjustment of the Exercise Price, and (ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price. (i) The Company may elect on or after the date of any adjustment of the Exercise Price to adjust the number of Warrants, in substitution for an adjustment in the number of Shares purchasable upon the exercise of a Warrant as provided in Section 11(h). -13- (j) In case of any capital reorganization of the Company, or in case of the consolidation of the Company with or the merger of the Company into any other corporation (other than a consolidation or merger in which the Company is the continuing corporation) or of the sale of the properties and assets of the Company as, or substantially as, an entirety to any other corporation, each Warrant shall after such reorganization, consolidation, merger or sale be exercisable, upon the terms and conditions specified in this Agreement, for the number of shares of stock or other securities or property to which a holder of the number of Shares purchasable (at the time of such reorganization, consolidation, merger or sale) upon exercise of such Warrant would have been entitled upon such reorganization, consolidation, merger or sale; and in any such case, if necessary, the provisions set forth in this Section 11 with respect to the rights and interest thereafter of the holders of the Warrants shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or property thereafter deliverable on the exercise of the Warrants. (k) Any determination as to fair market value pursuant to this Section 11 or as to whether an adjustment in the Exercise Price in effect hereunder is required pursuant to Sections 11(a) through 11(c), or as to the amount of any such adjustment, if required, shall be binding upon the holders of Warrants and the Company if made in good faith by the Company and, if required by the provisions of Section 13, evidenced by a certificate of a firm of independent public accountants (who may be the independent accountants regularly employed by the Company) selected by the Company. -14- SECTION 12. FRACTIONAL WARRANTS AND FRACTIONAL SHARES. (a) The Company shall not be required to issue fractions of Warrants on any distribution of Warrants to holders of Warrant Certificates pursuant to Section 11(i) or to distribute Warrant Certificates which evidence fractional Warrants. In lieu of such fractional Warrants there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants would otherwise be issuable an amount in cash equal to the same fraction of the current market value of a full Warrant. For purposes of this Section 12(a), the current market value of a Warrant shall be the closing price of the Warrant (as determined pursuant to the method delineated for such a determination in respect of the Common Stock in the second sentence of Section 11(d)) for the trading day immediately prior to the date on which such fractional Warrant would have been otherwise issuable. (b) Notwithstanding an adjustment pursuant to Section 11(h) in the number of Shares purchasable upon the exercise of a Warrant, the Company shall not be required to issue fractions of Shares upon exercise of the Warrants or to distribute certificates which evidence fractional Shares. In lieu of fractional Shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are issued as herein provided an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this Section 12(b), the current market value of a share of Common Stock shall be the closing price of a share of Common Stock (as determined pursuant to the second sentence of Section 11(d)) for the trading day immediately prior to the date of such exercise. -15- SECTION 13. NOTICES TO WARRANTHOLDERS UPON ADJUSTMENT OF EXERCISE PRICE. Upon any adjustment of the Exercise Price pursuant to Section 11, the Company within 20 calendar days thereafter shall (a) deliver to the Warrant Agent a certificate setting forth the Exercise Price after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based and setting forth the number of Shares purchasable upon exercise of a Warrant or number of Warrants after such adjustment in the Exercise Price, which certificate shall be conclusive evidence of the correctness of the matters set forth therein, and (b) cause to be given to each of the registered holders of the Warrant Certificates, at the holder's address appearing on the Warrant Register, written notice of such adjustments by first- class mail, postage prepaid. Where appropriate, such notice may be given in advance and included as part of the notice required to be mailed under the other provisions of this Section 13. Whenever the Exercise Price is adjusted, as herein provided, the Company shall cause the Warrant Agent promptly to mail by first-class mail, postage prepaid, to each registered holder, notice of such adjustment or adjustments and shall deliver to the Warrant Agent a certificate setting forth the Exercise Price after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made. Such certificate shall be conclusive evidence of the correctness of such adjustment. The Warrant Agent shall be entitled to rely on such certificate and shall be under no duty or responsibility with respect to any such certificate, except to exhibit the same, from time to time, to any registered -16- holder desiring an inspection thereof during reasonable business hours. The Warrant Agent shall not at any time be under any duty or responsibility to any registered holders to determine whether any facts exist which may require any adjustment of the Exercise Price or other stock or property purchasable on the exercise thereof, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making such adjustment. In case: (a) the Company shall authorize the issuance to all holders of Common Stock of rights or warrants to subscribe for or purchase capital stock of the Company or of any other subscription rights or warrants; (b) the Company shall authorize the distribution to all holders of Common Stock of evidences of its indebtedness or assets (other than cash dividends or cash distributions payable out of consolidated earnings or earned surplus or dividends payable in Common Stock); (c) of any consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required, or of the conveyance or transfer of the properties and assets of the Company substantially as an entirety, or of any capital reorganization or any reclassification of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination); (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or -17- (e) the Company proposes to take any other action which would require an adjustment of the Exercise Price pursuant to Section 11; then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each of the registered holders of the Warrant Certificates at his address appearing on the Warrant Register, at least 20 calendar days (or 10 calendar days in any case specified in clauses (a) or (b) above) prior to the applicable record date hereinafter specified, by first-class mail, postage prepaid, a written notice stating (i) the date as of which the holders of record of shares of Common Stock to be entitled to receive any such rights, warrants or distribution are to be determined, or (ii) the date on which any such consolidation, merger, conveyance, transfer, reorganization, reclassification, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of record of shares of Common Stock shall be entitled to exchange such shares for securities or other property, if any, deliverable upon such consolidation, merger, conveyance, transfer, reorganization, reclassification, dissolution, liquidation or winding up. The failure to give notice required by this Section 13 or any defect therein shall not affect the legality or validity of any distribution, right, warrant, consolidation, merger, conveyance, transfer, reorganization, reclassification, dissolution, liquidation or winding up or the vote upon any action. SECTION 14. WARRANT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. Nothing contained in this Agreement or in any of the Warrant Certificates shall be construed as conferring upon the holders thereof the right to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the -18- election of directors of the Company or any other matter, or any rights whatsoever as shareholders of the Company. SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to the stock transfer or corporate trust business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Warrant Agent under the provisions of Section 18. In case at the time such successor to the Warrant Agent shall succeed under this Agreement any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates in the name of the predecessor Warrant Agent; and in all such cases, such countersignatures shall have the same effect as if the successor Warrant Agent had itself signed such Warrant Certificates. In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name, and in the case at the time any of the -19- Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates in its prior name, and in all such cases, such countersignatures shall have the same effect as if the successor Warrant Agent had itself signed such Warrant Certificates. SECTION 16. WARRANT AGENT. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements of fact and recitals contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any holder of a Warrant to make or cause to be made any adjustment in the Exercise Price or in the number of Shares issuable (except as instructed by the Company), or to determine whether any facts exist which may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate -20- in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate or other paper, document or instrument reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent under this Agreement, to reimburse the Warrant Agent upon demand for all reasonable expenses, disbursements and advances incurred or made by the Warrant Agent in accordance with the provisions of this Agreement and to indemnify the Warrant Agent and save it harmless against any and all losses, liabilities and expenses, including judgments, costs and reasonable counsel fees, incurred without negligence, bad faith or willful misconduct on its part, for anything done or omitted by the Warrant Agent arising out of or in connection with this Agreement. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred. (g) The Warrant Agent, and any stockholder, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the -21- Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties are only such duties as are specifically set forth in this Agreement. (i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. (j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof by the Company or in respect of the validity or execution of any Warrant Certificate by the Company; nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Shares to be issued pursuant to this Agreement or any Warrant Certificate or as to whether the Shares will when issued be validly issued, fully paid and nonassessable or, except with respect to the accuracy of the records kept by it pursuant to Section 5 hereof, as to the Exercise Price or the number of Shares issuable upon exercise of any Warrant. (k) The Warrant Agent is hereby authorized and directed to apply to and to accept instructions with respect to the performance of its duties hereunder from the -22- President, Chief Executive Officer, any Vice President, the Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the terms of this Agreement and instructions of any such officer. SECTION 17. DISPOSITION OF PROCEEDS OF EXERCISE OF WARRANTS. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys received by the Warrant Agent on the purchase of Shares through the exercise of Warrants either by bank check or certified check or wire transfer. SECTION 18. CHANGE OF WARRANT AGENT. If the Warrant Agent shall resign (such resignation to become effective not earlier than 30 days after the giving of written notice thereof to the Company and the registered holders of Warrant Certificates) or shall become incapable of acting as Warrant Agent, the Company shall appoint a successor. If the Company shall fail to make such appointment within a period of 30 days after it has been so notified in writing by the Warrant Agent or by the registered holder of a Warrant Certificate (in the case of incapacity of the Warrant Agent), then the registered holder of any Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor warrant agent, whether appointed by the Company or by such a court, shall be (a) a bank or trust company, or (b) an affiliate -23- thereof with a corporate trust or stock transfer department, in each case in good standing, incorporated under the laws of the United States of America or any state thereof and must have at the time of its appointment as warrant agent a combined capital and surplus of at least $50,000,000. After appointment the successor warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the former Warrant Agent shall deliver and transfer to the successor warrant agent any property at the time held by it hereunder and execute and deliver, at the expense of the Company, any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 18, however, or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor warrant agent as the case may be. SECTION 19. IDENTITY OF TRANSFER AGENT. The Warrant Agent currently acts as Transfer Agent for the Common Stock. Forthwith upon the appointment of any subsequent transfer agent for the Common Stock, of any other shares of the Company's capital stock issuable upon exercise of the Warrant, the Company will file with the Warrant Agent a statement setting forth the name and address of such subsequent transfer agent. SECTION 20. NOTICES. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by the registered holder of any Warrant Certificate to or on the Company shall be sufficiently given or made if sent -24- by mail, first class or registered, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows: First Bank System, Inc. First Bank Place 601 Second Avenue South Minneapolis, MN 55402-4302 Attention: Corporate Secretary In case the Company shall fail to maintain such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the principal office of the Warrant Agent. Any notice pursuant to this Agreement to be given by the Company or by the registered holder of any Warrant Certificate to the Warrant Agent shall be sufficiently given if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company) to the Warrant Agent as follows: By Mail: First Chicago Trust Company of New York Suite 4660 P.O. Box 2565 Jersey City, N.J. 07303-2565 Attention: Tenders and Exchanges By Hand or Overnight Courier: First Chicago Trust Company of New York Suite 4680 14 Wall Street, 8th Floor New York, NY 10005 -25- Any notice pursuant to this Agreement to be given to the registered holder of any Warrant Certificate shall be given to such holder by first-class mail, postage prepaid, at his address appearing on the Warrant Register. SECTION 21. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of the Warrant Certificates. SECTION 22. DELIVERY OF PROSPECTUSES. For so long as the Company may be required by the Securities Act of 1933, as amended, or any other applicable federal or state law, to furnish a prospectus to holders of Warrants upon their exercise of Warrants, the Company shall cause to be kept at the Warrant Agent Office sufficient quantities of such prospectus for delivery to holders of Warrants upon their exercise thereof, and the Warrant Agent hereby agrees to deliver or cause to be delivered such prospectuses to such holders of Warrants together with the shares of Common Stock or other securities receivable by such holders of Warrants upon such exercise. SECTION 23. SUCCESSORS. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. -26- SECTION 24. TERMINATION. This Agreement shall terminate when all the Warrants outstanding hereunder shall have been exercised or expired and the Warrant Agent shall have fulfilled all its obligations hereunder. Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants have been exercised. The provisions of Section 16 shall survive such termination. SECTION 25. GOVERNING LAW. This Agreement and each Warrant Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State. SECTION 26. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed to give to any person or entity other than the Company, the Warrant Agent and the registered holders of Warrant Certificates any legal or equitable right, remedy or claim under this Agreement, but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. SECTION 27. COUNTERPARTS. This Agreement may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. -27- SECTION 28. CAPTIONS. The captions of the Sections and subsections of this Agreement have been inserted for convenience only and shall have no substantive effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the date first above written. FIRST BANK SYSTEM, INC. By: /s/ Ann E. Underbrink -------------------------------- Name: Ann E. Underbrink ------------------------------ Title: Vice President ----------------------------- Attest: /s/ John A. Blumenfeld - -------------------------- Name: John A. Blumenfeld -------------------- Title: Assistant Secretary -------------------- FIRST CHICAGO TRUST COMPANY OF NEW YORK By /s/ Joanne Gorostiola ----------------------------- Name: Joanne Gorostiola -------------------------- Title: Assistant Vice President ------------------------- [Seal] Attest: /s/ Ralph Persico - ------------------------------- Name: Ralph Persico -------------------------- Title: Customer Service Officer ------------------------ -28- EXHIBIT A VOID AFTER 5:00 P.M., NEW YORK TIME ON MAY 17, 2005 Certificate Number Registered Warrants W-________________ 5 Warrants FIRST BANK SYSTEM, INC. WARRANTS TO PURCHASE SHARES OF COMMON STOCK CUSIP 319279 12 1 See Reverse Side for Additional Provisions THIS WARRANT CERTIFICATE CERTIFIES that________________________________, or or registered assigns, is the registered holder of the number of Warrants (the "Warrants") expiring May 17, 2005 to purchase shares of Common Stock, $1.25 par value, of First Bank System, Inc., a Delaware corporation (the "Company"). This Warrant Certificate is issued under and in accordance with the Warrant Agreement (the "Warrant Agreement") dated as of October 2, 1995, between the Company and First Chicago Trust Company of New York, as Warrant Agent. Each Warrant entitles the holder to purchase from the Company during the period from the date on or after May 18, 1995, that Warrants are first issued pursuant to the Warrant Agreement through May 17, 2005 (the "Exercise Period"), one (or such other number as may be determined by adjustment pursuant to the Warrant Agreement upon the occurrence of certain events) fully paid and nonassessable share of Common Stock, $1.25 par value, of the Company (the "Shares") at the initial exercise price of $40.5 per Share or at such other price as determined by adjustment pursuant to the Warrant Agreement upon the occurrence of certain events (the "Exercise Price") payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent in Jersey City, New Jersey (the "Warrant Agent Office"), but only subject to the conditions set forth herein and in the Warrant Agreement. No Warrant may be exercised after the close of business on May 17, 2005 (the "Termination Date"). To the extent not exercised prior to the close of business on the Termination Date, all Warrants evidenced hereby shall be null and void and shall no longer be exercisable. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, and such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and facsimile signatures of its duly authorized officers. Dated: FIRST BANK SYSTEM, INC. By ------------------------------------- Title: By ------------------------------------- Title: Countersigned and Registered: First Chicago Trust Company of New York, as Warrant Agent ATTEST: By_______________________________ Authorized Signature A-1 Each Warrant evidenced by this Warrant Certificate is part of a duly authorized issue of Warrants expiring May 17, 2005, to purchase one share (subject to adjustment) of Common Stock, $1.25 par value, of the Company, and is issued or to be issued pursuant to a Warrant Agreement dated as of October 2, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company and First Chicago Trust Company of New York, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. Warrants may be exercised to purchase Shares from the Company during the period from the date on or after May 18, 1995, that Warrants are first issued pursuant to the Warrant Agreement through the close of business on the Termination Date (the "Exercise Period"), at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price at the Warrant Agent Office. Payment of the aggregate Exercise Price shall be made by certified or official bank check. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or the holder's assignee a new Warrant Certificate evidencing the number of Warrants not exercised. The Company has covenanted that if any of the Shares required to be reserved for purposes of exercise of Warrants require, under any federal securities law or applicable governing rule or regulation of any national securities exchange, registration or approval of any governmental authority, or listing on any such national securities exchange before the Shares may be issued upon exercise, the Company will in good faith prior to the issuance of the Shares endeavor to cause the Shares to be duly registered, approved or listed on the relevant national securities exchange, as the case may be; provided, however, that in no event shall such Shares be issued, and the Company is authorized to suspend the exercise of all Warrants, for the period during which such registration, approval or listing is required but not in effect. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise price is adjusted, the Warrant Agreement provides that, at the election of the Company, either (a) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted, or (b) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment or substitute Warrant Certificates to replace all outstanding Warrant Certificates. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash equal to the same fraction of the current market value (as determined pursuant to the Warrant Agreement) of a full Warrant or a full Share, as the case may be. Warrant Certificates, when surrendered at the Warrant Agent Office by the registered holder thereof in person or by legal representative by an attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentation for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate for all purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. The following abbreviations, when used in the Inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common UNIF GIFT MIN ACT-_______________________ (Cust) TEN ENT -- as tenants by the Custodian________________________________ entireties (Minor) JT TEN -- as joint tenants with under Uniform Gifts to Minors Act_________ right of survivorship (State) and not as tenants in common COM PROP -- as community property Additional abbreviations may also be used though not in the above list. FORM OF ELECTION TO EXERCISE (To be executed upon exercise of Warrant during the Exercise Period) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ____________________ Shares and herewith tenders payment for such Shares in the amount of $ ____________________ in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ____________________, whose address is __________________________________, and that such certificate be delivered to ________________________________, whose address is ________________________________________. If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of __________________________, whose address is ________________________________________ . Any cash payments to be paid in lieu of a fractional Share should be made to ________________________________________________, whose address is ________________________________________, and the check representing payment thereof should be delivered to ___________________________, whose address is ________________________________________ . Dated:____________ Taxpayer Identification or Social Security Number ________ ____________________________________ ________________________________ (Name of holder of Warrant Certificate. Please print) Signature Address:_______________________________________________________________________ Street City State Zip Code Signature Guaranteed:___________________________________________________________ NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. FORM OF ASSIGNMENT For value received,_________________________________________ hereby sells, assigns and transfers unto______________________________________________________ (Please print name and address) the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ________________ ________________ attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated:________________ ________________________________________ Signature Signature Guaranteed:__________________________________________________________ NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. A-2 EX-4.19 3 EXH 4.19 FORM OF WARRANT CERT CERTIFICATE NUMBER VOID AFTER 5:00 P.M., NEW YORK TIME, REGISTERED WARRANTS ON MAY 17, 2005 FIRST BANK SYSTEM, INC. W- WARRANTS TO PURCHASE SHARES OF COMMON STOCK CUSIP 319279 12 THIS WARRANT CERTIFICATE CERTIFIES that 1 See Reverse Side For Additional Provisions
, or registered assigns, is the registered holder of the number of Warrants (the "Warrants") indicated above expiring May 17, 2005 to purchase shares of Common Stock, $1.25 par value, of First Bank System, Inc., a Delaware corporation (the "Company"). This Warrant Certificate is issued under and in accordance with the Warrant Agreement (the "Warrant Agreement") dated as of October 2, 1995, between the Company and First Chicago Trust Company of New York, as Warrant Agent. Each Warrant entitles the holder to purchase from the Company during the period from the date on or after May 18, 1995, that Warrants are first issued pursuant to the Warrant Agreement through May 17, 2005 (the "Exercise Period"), one (or such other number as may be determined by adjustment pursuant to the Warrant Agreement upon the occurrence of certain events) fully paid and nonassessable share of Common Stock, $1.25 par value, of the Company (the "Shares") at the initial exercise price of $40.50 per Share or at such other price as determined by adjustment pursuant to the Warrant Agreement upon the occurrence of certain events (the "Exercise Price") payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent in Jersey City, New Jersey (the "Warrant Agent Office"), but only subject to the conditions set forth herein and in the Warrant Agreement. No Warrant may be exercised after the close of business on May 17, 2005 (the "Termination Date"). To the extent not exercised prior to the close of business on the Termination Date, all Warrants evidenced hereby shall be null and void and shall no longer be exercisable. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, and such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and facsimile signatures of its duly authorized officers. DATED: COUNTERSIGNED AND REGISTERED: FIRST CHICAGO TRUST COMPANY OF NEW YORK, FIRST BANK SYSTEM, INC. AS WARRANT AGENT ATTEST: By BY BY AUTHORIZED TITLE: TITLE: SIGNATURE
Each Warrant evidenced by this Warrant Certificate is part of a duly authorized issue of Warrants expiring May 17, 2005, to purchase one share (subject to adjustment) of Common Stock, $1.25 par value, of the Company, and is issued or to be issued pursuant to a Warrant Agreement dated as of October 2, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company and First Chicago Trust Company of New York, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. Warrants may be exercised to purchase Shares from the Company during the period from the date on or after May 18, 1995, that Warrants are first issued pursuant to the Warrant Agreement through the close of business on the Termination Date (the "Exercise Period"), at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price at the Warrant Agent Office. Payment of the aggregate Exercise Price shall be made by certified or official bank check. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or the holder's assignee a new Warrant Certificate evidencing the number of Warrants not exercised. The Company has covenanted that if any of the Shares required to be reserved for purposes of exercise of Warrants require, under any federal securities law or applicable governing rule or regulation of any national securities exchange, registration or approval of any governmental authority, or listing on any such national securities exchange before the Shares may be issued upon exercise, the Company will in good faith prior to the issuance of the Shares endeavor to cause the Shares to be duly registered, approved or listed on the relevant national securities exchange, as the case may be; provided, however, that in no event shall such Shares be issued, and the Company is authorized to suspend the exercise of all Warrants, for the period during which such registration, approval or listing is required but not in effect. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise price is adjusted, the Warrant Agreement provides that, at the election of the Company, either (a) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted, or (b) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment or substitute Warrant Certificates to replace all outstanding Warrant Certificates. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash equal to the same fraction of the current market value (as determined pursuant to the Warrant Agreement) of a full Warrant or a full Share, as the case may be. Warrant Certificates, when surrendered at the Warrant Agent Office by the registered holder thereof in person or by legal representative by an attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentation for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate for all purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common TEN ENT -- as tenants by the entireties JT TEN -- as joint tenants with right of survivorship and not as tenants in common COM PROP -- as community property
TEN COM (Cust) TEN ENT Custodian JT TEN (Minor) under Uniform Gifts to Minors Act COM PROP (State) UNIF GIFT MIN ACT--
Additional abbreviations may also be used though not in the above list. FORM OF ELECTION TO EXERCISE (TO BE EXECUTED UPON EXERCISE OF WARRANT DURING THE EXERCISE PERIOD) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ____________________ Shares and herewith tenders payment for such Shares in the amount of $ ____________________ in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ________________ ________________ ________________ ________________ ________________ , whose address is ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ , and that such certificate be delivered to ________________ ________________ ________________ ________________ ________________ , whose address is ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ . If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ________________ ________________ ________________ ________________ ________________ , whose address is ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ . Any cash payments to be paid in lieu of a fractional Share should be made to ________________ ________________ ________________ ________________ ________________ , whose address is ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ , and the check representing payment thereof should be delivered to ________________ ________________ ________________ ________________ ________________ , whose address is ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ . Taxpayer Identification or Dated:________________________________ Social Security Number ________________________________ ____________________________________ ____________________________________ (Name of holder of Warrant Signature Certificate. Please print) Address:________________________________________________________________________ Street City State Zip Code Signature Guaranteed:____________________________________________________________ NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. FORM OF ASSIGNMENT For value received, ________________ ________________ ________________ ________________ ________________ ________________ hereby sells, assigns and transfers unto ________________________________________ (Please print name and address) the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ________________ ________________ ________________ ________________ ________________ attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated:________________ ________________________________________ Signature Signature Guaranteed:________________ ________________ ________________ ________________ ________________ NOTE: THE ABOVE SIGNATURE OF WARRANT HOLDER MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. EX-5 4 EXHIBIT 5 [Letterhead of Dorsey & Whitney P.L.L.P.] First Bank System, Inc. First Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402-4302 Re: Registration Statement on Form S-3 Ladies and Gentlemen: We have acted as counsel to First Bank System, Inc., a Delaware corporation (the "Company"), in connection with a Registration Statement on Form S-3 (the "Registration Statement") relating to the sale by the Company from time to time of up to 41,000 shares of Common Stock, $1.25 par value, of the Company (the "Shares") upon the exercise of warrants (collectively the "Warrants") being issued by the Company pursuant to the settlement of a class action lawsuit entitled PHILLIP DISMUKE, ET AL. V. EDINA REALTY, INC. filed in Minnesota State Court, Hennepin County, Court File No. 92-8716. We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of the opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials. We have also assumed that the Common Stock will be sold for a price per share not less than the par value per share of the Common Stock. Based on the foregoing, we are of the opinion that the Shares initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance and, upon issuance, delivery and payment therefor as described in the Registration Statement, will be validly issued, fully paid and nonassessable. First Bank System, Inc. October 10, 1995 Page 2 Our opinions expressed above are limited to the Delaware General Corporation Law. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the reference to our firm under the heading "Legal Matters" in the Prospectus constituting part of the Registration Statement. Dated: October 10, 1995 Very truly yours, DTB EX-23.1 5 EXHIBIT 23.1 Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-3 No. 33-61667) and related Prospectus of First Bank System, Inc. for the registration of 41,000 shares of its common stock and to the incorporation by reference therein of our report dated January 24, 1995, with respect to the consolidated financial statements of First Bank System, Inc. included in its Current Report on Form 8-K dated March 3, 1995, filed with the Securities and Exchange Commission. Ernst & Young LLP Minneapolis, Minnesota October 5, 1995 EX-23.2 6 EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS ------------------------------------------- As independent public accountants, we hereby consent to the incorporation by reference in this Amendment No. 1 to the Form S-3 Registration Statement of our report dated August 28, 1995, on FirsTier Financial, Inc. and Subsidiaries, included in First Bank System, Inc.'s Form 8-K/A filed August 30, 1995, and to all references to our firm included in this Registration Statement. Arthur Andersen LLP Omaha, Nebraska October 6, 1995 -----END PRIVACY-ENHANCED MESSAGE-----