-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, AAhmBFeqLRBtAHWVpwxxmSsQZbmud4qNkakzY9FYWnyKmBnPuFAj93rShTIDuuQp VRRQOfCXKNoherLIzE0H9Q== 0000950131-95-000903.txt : 19950414 0000950131-95-000903.hdr.sgml : 19950414 ACCESSION NUMBER: 0000950131-95-000903 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 8 REFERENCES 429: 033-51407 FILED AS OF DATE: 19950410 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 SEC ACT: 1933 Act SEC FILE NUMBER: 033-58521 FILM NUMBER: 95528013 BUSINESS ADDRESS: STREET 1: 601 SECOND AVE S STREET 2: FIRST BANK PL 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 1 FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 1995 REGISTRATION NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ---------------- FIRST BANK SYSTEM, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 41-0255900 (STATE OF INCORPORATION) (I.R.S EMPLOYER IDENTIFICATION NO.) FIRST BANK PLACE MICHAEL J. O'ROURKE 601 SECOND AVENUE SOUTH FIRST BANK PLACE MINNEAPOLIS, MINNESOTA 55402-4302 601 SECOND AVENUE SOUTH (612) 973-1111 MINNEAPOLIS, MINNESOTA 55402-4302 (ADDRESS AND TELEPHONE NUMBER OF (612) 973-1111 REGISTRANT'S PRINCIPAL EXECUTIVE (ADDRESS AND TELEPHONE NUMBER OFFICES) OF AGENT FOR SERVICE) COPY TO: LEE R. MITAU RANDAL K. QUARLES DORSEY & WHITNEY P.L.L.P. DAVIS POLK & WARDWELL 2200 SOUTH SIXTH STREET 450 LEXINGTON AVENUE MINNEAPOLIS, MINNESOTA 55402-4302 NEW YORK, N.Y. 10017 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. ---------------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. [_] ---------------- If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered in connection with dividend or interest reinvestment plans, check the following box. [X] CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
PROPOSED PROPOSED TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE - --------------------------------------------------------------------------------------------- Debt Securities and Warrants to Purchase Debt Securities(2)..... $1,000,000,000(3) 100%(4) $1,000,000,000(4) $344,828 - ---------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- (1) Estimated in accordance with Rule 457 solely for the purpose of calculating the registration fee. (2) The Debt Securities to be offered hereunder or Debt Securities purchasable upon exercise of Warrants to purchase Debt Securities offered hereunder will consist of one or more series of Senior Notes or Subordinated Notes, or both, as herein more fully described. Because the Warrants will provide a right only to purchase the Debt Securities offered hereunder, no additional registration fee is required. (3) Or, in the case of Debt Securities issued at an original issue discount, such greater principal amount as shall result in an aggregate offering price of the amount set forth above or, in the case of Debt Securities denominated in a currency other than U.S. dollars or in a composite currency, such U.S. dollar amount as shall result from converting the aggregate public offering price of such Debt Securities into U.S. dollars at the spot exchange rate in effect on the date such Debt Securities are initially offered to the public. (4) Plus accrued interest, if any. Pursuant to Rule 429, the Prospectus contained in this Registration Statement also relates to and constitutes Post-Effective Amendment No. 1 to Registration Statement No. 33-51407, most recently declared effective on February 15, 1994. ---------------- 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 $1,325,000,000 FIRST BANK SYSTEM, INC. LOGO DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES ---------------- First Bank System, Inc. ("FBS" or the "Company") may offer from time to time its debt securities (the "Debt Securities") in an aggregate principal amount not to exceed $1,325,000,000, or its equivalent (based on the applicable exchange rate at the time of the offering) in such foreign currency or units of two or more foreign currencies as may be designated by the Company at the time of the offering, on terms to be determined at the time of sale. The Debt Securities may be senior debt securities (the "Senior Notes") or subordinated debt securities (the "Subordinated Notes"). The Company may also offer, alone or with the Debt Securities, warrants to purchase Debt Securities ("Warrants" and, together with the Debt Securities, the "Securities"). The specific designation, aggregate principal amount, purchase price, maturity, any interest rate or rates (which may be fixed or variable) and time of payment of any interest, any redemption or extension terms and other specific terms of the Debt Securities (including any Debt Securities purchasable upon exercise of Warrants) and the principal amount of Debt Securities purchasable upon exercise of each Warrant and the purchase price thereof, the date on or after which the Warrants may be exercised, the expiration date and other specific terms of the Warrants will be set forth in one or more supplements to this Prospectus (each a "Prospectus Supplement"). As used herein, the term "Debt Securities" shall include securities denominated in United States dollars or, if so specified in the applicable Prospectus Supplement, in any other currency or currency units or in amounts determined by reference to an index. The Senior Notes, when issued, will rank on a parity with all other unsecured and unsubordinated indebtedness of the Company. The Subordinated Notes, when issued, will be subordinated as described herein under "Description of Debt Securities--Subordination of Subordinated Notes." ---------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COM- MISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ---------------- The Securities may be sold to or through underwriters, dealers or agents for public offering or directly to other purchasers pursuant to terms of offering fixed at the time of sale. See "Plan of Distribution." Any underwriters, dealers or agents participating in an offering of Securities will be named in the accompanying Prospectus Supplement or Prospectus Supplements. Such underwriters, dealers or agents may be deemed "underwriters" within the meaning of the Securities Act of 1933. ---------------- THE DATE OF THIS PROSPECTUS IS , 1995. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information filed by the Company can be inspected and copied at the public reference facilities of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's Regional Offices at Seven World Trade Center, 13th floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Reports, proxy statements and other information concerning the Company can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. The Company has filed with the Commission a registration statement on Form S- 3 (herein, together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents of the Company which have been filed with the Commission are hereby incorporated by reference in this Prospectus: (a) Annual Report on Form 10-K for the year ended December 31, 1994; (b) Current Report on Form 8-K filed March 3, 1995 (as amended by Amendment No. 1 on Form 8-K/A filed March 7, 1995); and (c) Current Report on Form 8-K/A filed February 13, 1995 (constituting Amendment No. 4 to the Current Report on Form 8-K filed August 5, 1994). All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Prospectus and prior to the termination of the offering of the Securities shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the respective dates of filing of such documents. Any statement contained herein or in a document all or any portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to any person to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the foregoing documents incorporated herein by reference, other than certain exhibits to such documents for which the Company may impose a copying charge. Requests for such copies should be directed to Ann E. Underbrink, First Bank System, Inc., First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4302, telephone number (612) 973-1111. Unless otherwise indicated, currency amounts in this Prospectus and any Prospectus Supplement are stated in United States dollars ("$" or "dollars"). FIRST BANK SYSTEM, INC. GENERAL FBS is a regional bank holding company headquartered in Minneapolis, Minnesota. FBS is comprised of 9 banks, 5 trust companies and several nonbank subsidiaries with 225 offices primarily in Minnesota, 2 Colorado, Montana, North Dakota, South Dakota and Wisconsin. Through its subsidiaries, FBS provides commercial and agricultural finance, consumer banking, trust, capital markets, treasury management, investment management, data processing, leasing, mortgage banking and brokerage services. At December 31, 1994, FBS and its consolidated subsidiaries had consolidated assets of $26.2 billion, consolidated deposits of $18.8 billion and shareholders' equity of $2.3 billion. The subsidiary banks of FBS engage in general commercial banking business, principally in domestic markets, and provide banking and ancillary services to individuals, businesses, institutional organizations, governmental entities and other financial institutions. The largest subsidiary bank, First Bank National Association ("FBNA"), had assets of $14.4 billion at December 31, 1994. Effective January 24, 1995, the Company completed its merger with Metropolitan Financial Corporation ("MFC"), a regional financial services holding company headquartered in Minneapolis, Minnesota. At December 31, 1994, MFC had $7.9 billion in assets, $5.5 billion in deposits and 211 offices located principally in North Dakota, Minnesota, Nebraska, Iowa, Kansas, South Dakota, Wisconsin and Wyoming. The merger with MFC was accounted for using the pooling of interests method of accounting and, in accordance with the rules of the Commission, the Company's financial statements have been restated for all periods prior to the merger to include the accounts and operations of MFC. These restated supplemental financial statements have been filed with the Commission in the Company's Current Report on Form 8-K dated March 3, 1995 and will become the Company's historical financial statements upon issuance of its earnings release for the three months ended March 31, 1995. See "Incorporation of Certain Documents by Reference." The historical financial information of FBS as of December 31, 1994 set forth above does not include MFC. FBS is a legal entity separate and distinct from its banking and non-banking affiliates. The principal sources of FBS' income are dividends, interest and fees from FBNA and the other banking and non-banking affiliates. The bank subsidiaries of FBS, including FBNA (the "Banks"), are subject to certain restrictions imposed by federal law on any extensions of credit to, and certain other transactions with, FBS and certain other affiliates, and on investments in stock or other securities thereof. Such restrictions prevent FBS and such other affiliates from borrowing from the Banks unless the loans are secured by various types of collateral. Further, such secured loans, other transactions and investments by any of the Banks are generally limited in amount as to FBS and as to each of such other affiliates to 10% of such Bank's capital and surplus and as to FBS and all of such other affiliates to an aggregate of 20% of such Bank's capital and surplus. In addition, payment of dividends to FBS by the subsidiary banks is subject to ongoing review by banking regulators and is subject to various statutory limitations and in certain circumstances requires approval by banking regulatory authorities. FBS was incorporated under Delaware law in 1929 and has functioned as a multi-bank holding company since that time. Its principal executive offices are located at First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4302 (telephone (612) 973-1111). For further information concerning FBS, see the FBS documents incorporated by reference herein as described under "Incorporation of Certain Documents by Reference." USE OF PROCEEDS The net proceeds from the sale of the Securities will be used for general corporate purposes, including repayment of outstanding indebtedness of the Company, investments in, or extension of credit to, the Company's subsidiaries and possible acquisitions. Specific allocations of the proceeds to such purposes may not have been made at the date of the applicable Prospectus Supplement, although management of the Company will have determined that funds should be borrowed at that time in anticipation of future funding requirements. The precise amount and timing of the application of such proceeds will depend upon the funding requirements of the Company and the availability and cost of other funds. Pending such application, such net proceeds may be temporarily invested or applied to the reduction of short-term indebtedness. 3 RATIOS OF EARNINGS TO FIXED CHARGES The following table sets forth the ratios of earnings to fixed charges of the Company for the respective periods indicated. These ratios have not been restated for the merger with MFC described above.
YEAR ENDED DECEMBER 31 ------------------------ 1990 1991 1992 1993 1994 ---- ---- ---- ---- ---- Excluding interest on deposits......................... 1.17 2.09 2.54 4.53 4.31 Including interest on deposits......................... 1.04 1.21 1.32 1.86 2.18
For purposes of computing these ratios, earnings represent income before income taxes and cumulative effect of changes in accounting principles and fixed charges (excluding capitalized interest). Fixed charges, excluding interest on deposits, include interest (other than on deposits but including capitalized interest) and the portion deemed representative of the interest factor of rents. Fixed charges, including interest on deposits, include all interest (including capitalized interest) and the portion deemed representative of the interest factor of rents. DESCRIPTION OF DEBT SECURITIES The Senior Notes will be issued under an Indenture dated as of October 1, 1991 (the "Senior Note Indenture") between the Company and Citibank, N.A., as Trustee (the "Senior Note Trustee"), and the Subordinated Notes will be issued under an Indenture dated as of October 1, 1991, as amended by a First Supplemental Indenture dated as of April 1, 1993 (as so amended, the "Subordinated Note Indenture" and, together with the Senior Note Indenture, the "Indentures") between the Company and Citibank, N.A., as Trustee (the "Subordinated Note Trustee"). Copies of the Indentures have been filed as exhibits to the Registration Statement of which this Prospectus is a part. The following brief summaries of certain provisions of the Indentures do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable Indenture. Certain terms capitalized and not otherwise defined herein are defined in one or both of the Indentures. The Debt Securities may be issued from time to time in one or more series. The terms of each series of Debt Securities will be established by or pursuant to a resolution of the Board of Directors of the Company (a "Board Resolution") and set forth or determined in the manner provided in an Officers' Certificate or by a supplemental indenture. The particular terms of the Debt Securities offered pursuant to any Prospectus Supplement or Prospectus Supplements will be described in such Prospectus Supplement or Prospectus Supplements. Because the Company is a holding company, its rights and the rights of its creditors, including the holders of the Debt Securities offered hereby, to participate in the assets of any subsidiary upon the latter's liquidation or reorganization will be subject to the prior claims of such subsidiary's creditors, except to the extent that the Company may itself be a creditor with recognized claims against the subsidiary. Any capital loans by the Company to any of the Banks would be subordinate in right of payment to deposits and to certain other indebtedness of such Banks. Claims on the subsidiaries by creditors other than the Company may include long-term and medium-term debt and substantial obligations with respect to deposit liabilities, federal funds purchased, securities sold under repurchase agreements and other short-term borrowings. GENERAL The Indentures do not limit the aggregate principal amount of Debt Securities which may be issued thereunder nor the amount of other debt which may be issued by the Company. The Debt Securities will be unsecured obligations of the Company and those issued under the Senior Note Indenture will rank on a parity with all other unsecured and unsubordinated indebtedness of the Company, while those issued under the Subordinated Note Indenture will be subordinated as hereinafter described under "Subordination of Subordinated Notes." Unless otherwise indicated in the applicable Prospectus Supplement or Prospectus Supplements, the Debt Securities of any series will be issued only in fully registered form in denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000. (Section 302) Debt Securities may be issuable in the form of one or more Global Securities, as described below under "Global Securities." A Global Security 4 will be issued in a denomination equal to the aggregate principal amount of outstanding Debt Securities of the series represented by such Global Security. The Debt Securities (other than those issued in the form of a Global Security) are exchangeable or transferable without charge therefor, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith and require the holders to furnish appropriate endorsements and transfer documents. (Section 305) Debt Securities may be issued as Original Issue Discount Debt Securities to be sold at a substantial discount below their principal amount. Special Federal income tax and other considerations applicable thereto and special Federal tax and other considerations applicable to any Debt Securities which are denominated in a currency or currency unit other than United States dollars will be described in the Prospectus Supplement or Prospectus Supplements relating thereto. Unless otherwise indicated in the applicable Prospectus Supplement or Prospectus Supplements, principal of and any premium and interest on the Debt Securities will be payable, and the transfer of the Debt Securities will be registrable, at the principal corporate trust office of the applicable Trustee. In addition, unless otherwise provided in the applicable Prospectus Supplement or Prospectus Supplements, payment of interest may be made at the option of the Company by check mailed to the address of the person entitled thereto as it appears on the Security Register. (Sections 301, 305, 1001 and 1002) The applicable Prospectus Supplement or Prospectus Supplements will describe the terms of the Debt Securities offered thereby, including the following: (1) the title of the offered Debt Securities; (2) whether the offered Debt Securities are Senior Notes or Subordinated Notes; (3) any limit on the aggregate principal amount of the offered Debt Securities; (4) the price or prices (expressed as a percentage of the aggregate principal amount thereof) at which the offered Debt Securities will be issued; (5) the date or dates on which the offered Debt Securities will mature and any rights of extension; (6) the rate or rates, if any (which may be fixed or variable), per annum at which the offered Debt Securities will bear interest, if any, or the formula pursuant to which such rate or rates shall be determined, and the date from which any such interest will accrue; (7) the dates on which any such interest on the offered Debt Securities will be payable and the regular record dates therefor; (8) any mandatory or optional sinking fund or analogous provisions; (9) the period or periods, if any, within which and the price or prices at which the offered Debt Securities may be redeemed, pursuant to any redemption provisions, at the option of the Company or of the holder thereof and other detailed terms of any such optional redemption provision; (10) the currency or currency units, including European Currency Units ("ECUs") or other composite currencies, for the payment of principal of and any premium and interest payable on the offered Debt Securities, if other than United States dollars; (11) the place or places where the principal of and any premium and interest on the offered Debt Securities will be payable; (12) any other event or events of default applicable with respect to the offered Debt Securities in addition to or in lieu of those described under "Events of Default"; (13) the denominations in which any offered Debt Securities will be issuable, if other than denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000; (14) whether such Debt Securities are to be issued in whole or in part in the form of one or more Global Securities and, if so, the identity of the Depositary for such Global Security or Securities and the circumstances under which any such Global Security may be exchanged for Securities registered in the name of, and any transfer of such Global Security may be registered to, a Person other than such Depositary or its nominee; and (15) any other terms of the offered Debt Securities not inconsistent with the provisions of the Indenture. GLOBAL SECURITIES The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities that will be deposited with, or on behalf of, a Depositary identified in the applicable Prospectus Supplement or Prospectus Supplements. Unless otherwise indicated in the applicable Prospectus Supplement or Prospectus Supplements, Global Securities will be issued in registered form. (Section 305) The specific terms of the depositary arrangement with respect to a series of Debt Securities will be described in the applicable Prospectus Supplement or Prospectus Supplements. 5 SUBORDINATION OF SUBORDINATED NOTES The payment of the principal of and interest on the Subordinated Notes will, to the extent set forth in the Subordinated Note Indenture, be subordinate in right of payment to the prior payment in full of all Senior Indebtedness of the Company. (Section 1301) In certain events of insolvency, the payment of the principal of and interest on the Subordinated Notes will, to the extent set forth in the Subordinated Note Indenture, also be effectively subordinated in right of payment to the prior payment in full of all General Obligations. No payment pursuant to the Subordinated Notes may be made and no Holder of the Subordinated Notes shall be entitled to demand or receive any such payment unless all amounts of principal of, premium, if any, and interest then due on all Senior Indebtedness of the Company shall have been paid in full or duly provided for and, at the time of such payment or immediately after giving effect thereto, there shall not exist with respect to any such Senior Indebtedness any event of default permitting the holders thereof to accelerate the maturity thereof or any event which, with notice or lapse of time or both, would become such an event of default. (Section 1302) Upon any payment or distribution of the assets of the Company in connection with dissolution, winding-up, liquidation or reorganization, the holders of Senior Indebtedness of the Company will be entitled to receive payment in full of principal, premium, if any, and interest in accordance with the terms of such Senior Indebtedness before any payment is made on the Subordinated Notes. (Section 1303) If upon any such payment or distribution of assets to creditors, there remains, after giving effect to such subordination provisions in favor of the holders of Senior Indebtedness, any amount of cash, property or securities available for payment or distribution in respect of Subordinated Notes (as defined in the Subordinated Note Indenture, "Excess Proceeds") and if, at such time, any creditors in respect of General Obligations have not received payment in full of all amounts due or to become due on or in respect of such General Obligations, then such Excess Proceeds shall first be applied to pay or provide for the payment in full of such General Obligations before any payment or distribution may be made in respect of the Subordinated Notes. (Section 1314) "Senior Indebtedness" of the Company is defined in the Subordinated Note Indenture to mean the principal of, premium, if any, and interest on (1) all indebtedness of the Company for money borrowed, whether outstanding on the date of execution of the Subordinated Note Indenture or thereafter created, assumed or incurred (including, without limitation, any Senior Notes issued pursuant to the Senior Note Indenture), except (a) such indebtedness as is by its terms expressly stated to rank junior in the right of payment to the Subordinated Notes or to rank pari passu with the Subordinated Notes and (b) the Company's Subordinated Floating Rate Notes Due November 2010 and its Floating Rate Subordinated Capital Notes Due 1996, and (2) any deferrals, renewals or extensions of any such Senior Indebtedness. "General Obligations" of the Company are defined in the Subordinated Note Indenture to mean all obligations of the Company to make payment on account of claims of general creditors, other than (1) obligations on account of Senior Indebtedness and (2) obligations on account of the Subordinated Notes and indebtedness of the Company for money borrowed ranking pari passu with or subordinate to the Subordinated Notes; provided, however, that if the Board of Governors of the Federal Reserve System (or other competent regulatory agency or authority) shall promulgate any rule or issue any interpretation defining or describing the term "general creditor" or "general creditors" for purposes of its criteria for the inclusion of subordinated debt of a bank holding company in capital, the term "General Obligations" shall mean obligations to "general creditors" as defined or described in such rule or interpretation, as from time to time in effect, other than obligations described in clauses (1) and (2) above. The term "claim" as used in the foregoing definition has the meaning assigned thereto in Section 101(5) of the Bankruptcy Code of 1978, as amended to April 1, 1993. The term "indebtedness of the Company for money borrowed" is defined to mean any obligation of, or any obligation guaranteed by, the Company for the repayment of money borrowed, whether or not evidenced by bonds, debentures, notes or other written instruments, and any deferred obligation for the payment of the purchase price of property or assets. (Section 101) By reason of the subordination described above, in the event of the bankruptcy, insolvency or reorganization of the Company, holders of Senior Indebtedness of the Company may receive more, ratably, and Holders of the Subordinated Notes may receive less, ratably, than creditors of the Company who are not 6 holders of Senior Indebtedness or of the Subordinated Notes. Such subordination will not prevent the occurrence of any Event of Default in respect of the Subordinated Notes. Unless otherwise specified in the applicable Prospectus Supplement or Prospectus Supplements, the Subordinated Note Indenture does not provide for any right of acceleration of the payment of principal of the Subordinated Notes upon a default in the payment of principal or interest or in the performance of any covenant or agreement in the Subordinated Notes or the Subordinated Note Indenture. See "Events of Default" below. The subordination provisions of the Subordinated Note Indenture described herein are provided for the benefit of the holders of Senior Indebtedness and are not intended for the benefit of creditors in respect of General Obligations. The Company and the Subordinated Note Trustee may amend the Subordinated Note Indenture to reduce or eliminate the rights of creditors in respect of General Obligations without the consent of such creditors or the Holders of the Subordinated Notes. Upon (1) the promulgation of any rule or regulation or the issuance of any interpretation by the Board of Governors of the Federal Reserve System (or other competent regulatory agency or authority) that (a) permits the Company to include the Subordinated Notes in its capital if they were subordinated in right of payment to Senior Indebtedness without regard to any other obligations of the Company, (b) otherwise eliminates the requirement that subordinated debt of a bank holding company must be subordinated in right of payment to its "general creditors" in order to be included in capital or (c) causes the Subordinated Notes to be excluded from capital notwithstanding the subordination provisions described above, or (2) any event that results in the Company no longer being subject to capital requirements of bank regulatory authorities, the provisions of the Subordinated Note Indenture providing for subordination of the Subordinated Notes in favor of creditors in respect of General Obligations shall immediately and automatically be terminated without further action by the Company or the Subordinated Note Trustee. (Section 1315) RESTRICTIVE COVENANTS Subject to the provisions described under "Consolidation, Merger and Sale of Assets," the Senior Note Indenture prohibits the issuance, sale or other disposition of shares of or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of a Principal Subsidiary Bank, the merger or consolidation of a Principal Subsidiary Bank with or into any other corporation or the sale or other disposition of all or substantially all of the assets of a Principal Subsidiary Bank if, after giving effect to any such transaction and the issuance of the maximum number of shares of Voting Stock issuable upon the conversion or exercise of all such convertible securities, options, warrants or rights, the Company would own, directly or indirectly, 80% or less of the shares of Voting Stock of such Principal Subsidiary Bank or the successor bank in such merger or consolidation or the bank which acquires such assets, as the case may be. (Section 1007) In the Senior Note Indenture the Company covenants that it will not create, assume, incur or suffer to exist any pledge, encumbrance or lien, as security for indebtedness for borrowed money, upon any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of a Principal Subsidiary Bank owned by the Company, directly or indirectly, without making effective provision whereby the Senior Notes of all series shall be equally and ratably secured, if, treating such pledge, encumbrance or lien as a transfer to the secured party, and after giving effect to the issuance of the maximum number of shares of Voting Stock issuable upon conversion or exercise of such convertible securities, options, warrants or rights, the Company would own, directly or indirectly, 80% or less of the shares of Voting Stock of such Principal Subsidiary Bank. (Section 1008) The term "Principal Subsidiary Bank" is defined in the Indentures as FBNA and any successor. Except as may be otherwise specified in the applicable Prospectus Supplement, the Subordinated Note Indenture does not contain either of the restrictive covenants set forth above with respect to the Senior Note Indenture nor does it contain any other provision which restricts the Company from incurring or becoming 7 liable with respect to any Senior Indebtedness or any General Obligations, whether secured or unsecured, or from paying dividends or making other distributions on its capital stock or purchasing or redeeming its capital stock or from creating any liens on its property for any purpose. Except as may be otherwise specified in the applicable Prospectus Supplement, neither Indenture contains covenants specifically designed to protect Holders in the event of a highly leveraged transaction involving the Company. EVENTS OF DEFAULT The following events are defined in the Senior Note Indenture as "Events of Default" with respect to any series of Senior Notes, unless otherwise provided with respect to such series: (1) failure to pay any interest on any Senior Note of that series when due and payable, continued for 30 days; (2) failure to pay principal of or any premium on any Senior Note of that series when due and payable; (3) failure to deposit any sinking fund payment, when due, in respect of any Senior Note of that series; (4) failure to perform any other covenant of the Company in the Senior Note Indenture (other than a covenant included in the Senior Note Indenture solely for the benefit of a series of Senior Notes other than that series), continued for 60 days after written notice as provided in the Senior Note Indenture; (5) the occurrence of an event of default under any indenture or instrument under which the Company or a Principal Subsidiary Bank has or shall hereafter have outstanding indebtedness for borrowed money in excess of $5,000,000 which has become due and payable by its terms and has not been paid or whose maturity has been accelerated and such payment default has not been cured or such acceleration has not been annulled within 60 days after written notice as provided in the Senior Note Indenture; (6) certain events in bankruptcy, insolvency or reorganization involving the Company or a Principal Subsidiary Bank; and (7) any other Event of Default provided with respect to Senior Notes of that series. The only events defined in the Subordinated Note Indenture as "Events of Default" with respect to any series of Subordinated Notes, unless otherwise provided with respect to such series, are (1) certain events in bankruptcy, insolvency or reorganization involving the Company; (2) certain events involving the receivership, conservatorship or liquidation of a Principal Subsidiary Bank; and (3) any other Event of Default provided with respect to Subordinated Notes of that series. (Section 501) If an Event of Default with respect to any series of Debt Securities Outstanding under either Indenture occurs and is continuing, then either the applicable Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Debt Securities of that series by notice as provided in the applicable Indenture may declare the principal amount (or, if any of the Debt Securities of that series are Original Issue Discount Debt Securities, such lesser portion of the principal amount of such Debt Securities as may be specified in the terms thereof) of all of the Debt Securities of that series to be due and payable immediately. At any time after a declaration of acceleration with respect to Debt Securities of any series has been made, but before a judgment or decree for payment of money has been obtained by the applicable Trustee, the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of that series may, under certain circumstances, rescind and annul such acceleration. (Section 502) Each Indenture provides that, subject to the duty of the applicable Trustee during default to act with the required standard of care, such Trustee will be under no obligation to exercise any of its rights or powers under the applicable Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to such Trustee reasonable indemnity. (Sections 601, 603) Subject to such provisions for the indemnification of the Trustee, the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Trustee, or exercising any trust or power conferred on such Trustee, with respect to the Debt Securities of that series. (Section 512) The Company is required to furnish to each Trustee annually a statement as to the performance by the Company of certain of its obligations under the applicable Indenture and as to any default in such performance. (Section 704) 8 MODIFICATION AND WAIVER Modifications and amendments of the Indentures may be made by the Company and the applicable Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of each series affected by such modification or amendment; provided, however, that no such modification or amendment may, without the consent of the Holder of each Outstanding Debt Security affected thereby, (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security, (2) reduce the principal amount of, or premium or interest on, any Debt Security, (3) change any obligation of the Company to pay additional amounts, (4) reduce the amount of principal of an Original Issue Discount Debt Security due and payable upon acceleration of the Maturity thereof, (5) change the place of payment where or coin or currency in which the principal of, or any premium or interest on, any Debt Security is payable, (6) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security, (7) reduce the percentage in principal amount of Outstanding Debt Securities of any series, the consent of the Holders of which is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the applicable Indenture or for waiver of certain defaults, (8) modify the provisions of the Subordinated Note Indenture with respect to the subordination of any Subordinated Notes in a manner adverse to the Holders thereof, or (9) modify any of the above provisions. (Section 902) The Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of each series may, on behalf of the Holders of all Debt Securities of that series, waive, insofar as that series is concerned, compliance by the Company with certain restrictive provisions of the applicable Indenture. (Section 1009) The Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of each series may, on behalf of the Holders of all Debt Securities of that series, waive any past default under the applicable Indenture with respect to Debt Securities of that series, except a default (1) in the payment of principal of, or any premium or interest on, any Senior Notes, or (2) in respect of a covenant or provision of the applicable Indenture which cannot be modified or amended without the consent of the Holder of each Outstanding Debt Security of such series affected. (Section 513) Each Indenture provides that, in determining whether the Holders of the requisite principal amount of the Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver thereunder or whether a quorum is present at a meeting of Holders of Debt Securities, (1) the principal amount of an Original Issue Discount Debt Security that will be deemed to be Outstanding will be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof to such date, and (2) the principal amount of a Debt Security denominated in a foreign currency or currency unit that will be deemed to be Outstanding will be the United States dollar equivalent, determined as of the date of original issuance of such Debt Security, of the principal amount of such Debt Security (or, in the case of an Original Issue Discount Debt Security, the United States dollar equivalent, determined as of the date of original issuance of such Debt Security, of the amount determined as provided in (1) above). (Section 101) CONSOLIDATION, MERGER AND SALE OF ASSETS The Company, without the consent of the Holders of any of the Outstanding Debt Securities under either Indenture, may consolidate or merge with or into, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person which is a corporation, partnership or trust organized and validly existing under the laws of any domestic jurisdiction, provided that any successor Person assumes the Company's obligations on the Debt Securities and under such Indenture, that after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time, would become an Event of Default, shall have occurred and be continuing under such Indenture and that certain other conditions are met. (Section 801) REGARDING CITIBANK, N.A. The Company and certain of its subsidiaries maintain deposits with and conduct other banking transactions with Citibank, N.A. in the ordinary course of business. 9 DESCRIPTION OF WARRANTS The Company may issue, together with Debt Securities or separately, Warrants for the purchase of Debt Securities. The Warrants are to be issued under Warrant Agreements (each a "Warrant Agreement") to be entered into between the Company and a bank or trust company, as Warrant Agent (the "Warrant Agent"), all as shall be set forth in the Prospectus Supplement relating to Warrants being offered thereby. A copy of the form of Warrant Agreement, including the form of Warrant Certificates representing the Warrants (the "Warrant Certificates"), reflecting the alternative provisions to be included in the Warrant Agreements that will be entered into with respect to particular offerings of Warrants, has been filed as an exhibit to the Registration Statement of which this Prospectus is a part. The following brief summaries of certain provisions of the Warrant Agreement and the Warrant Certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable Warrant Agreement and Warrant Certificates, respectively, including the definitions therein of certain terms capitalized and not otherwise defined herein. GENERAL The applicable Prospectus Supplement or Prospectus Supplements will describe the terms of the Warrants offered thereby, the Warrant Agreement relating to such Warrants and the Warrant Certificates representing such Warrants, including the following: (1) the designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of such Warrants and the procedures and conditions relating to the exercise of such Warrants; (2) the designation and terms of any related Debt Securities with which such Warrants are issued and the number of such Warrants issued with each such Debt Security; (3) the date, if any, on and after which such Warrants and the related Debt Securities will be separately transferable; (4) the principal amount of Debt Securities purchasable upon exercise of each Warrant and the price at which such principal amount of Debt Securities may be purchased upon such exercise; (5) the date on which the right to exercise such Warrants shall commence and the date on which such right shall expire (the "Expiration Date"); (6) if the Debt Securities purchasable upon exercise of such Warrants are Original Issue Discount Debt Securities, a discussion of Federal income tax considerations applicable thereto; and (7) whether the Warrant Certificates representing such Warrants will be issued in registered or bearer form, and, if registered, where they may be transferred and registered. Warrant Certificates will be exchangeable for new Warrant Certificates of different authorized denominations and Warrants may be exercised at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement or Prospectus Supplements. Prior to the exercise of their Warrants, holders of Warrants will not have any of the rights of holders of the Debt Securities purchasable upon such exercise and will not be entitled to payments of principal of, and any premium or interest on, such Debt Securities. EXERCISE OF WARRANTS Each Warrant will entitle the Holder to purchase such principal amount of Debt Securities at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement or Prospectus Supplements. Warrants may be exercised during the period or periods set forth in the applicable Prospectus Supplement or Prospectus Supplements. After the close of business on the Expiration Date, unexercised Warrants will become void. Warrants may be exercised as set forth in the applicable Prospectus Supplement or Prospectus Supplements. Upon receipt of payment of the exercise price and the properly completed and duly executed purchase form set forth in the Warrant Certificate at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement or Prospectus Supplements, the Company will, as soon as practicable, forward the Debt Securities purchasable upon such exercise to the person entitled thereto. If less than all of the Warrants represented by such Warrant Certificates are exercised, a new Warrant Certificate will be issued for the remaining amount of Warrants. 10 FOREIGN CURRENCY RISKS GENERAL Debt Securities of a series may be denominated in and the principal of, and any interest or premium on, such Debt Securities may be payable in such foreign currencies or currency units as may be designated by the Company at the time of offering (the "Foreign Currency Securities"). THIS PROSPECTUS DOES NOT DESCRIBE ALL THE RISKS OF AN INVESTMENT IN FOREIGN CURRENCY SECURITIES THAT RESULT FROM SUCH SECURITIES BEING DENOMINATED OR PAYABLE IN A FOREIGN CURRENCY OR CURRENCY UNIT, EITHER AS SUCH RISKS EXIST AT THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN FOREIGN CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS. The information set forth below is by necessity incomplete. Prospective purchasers of Foreign Currency Securities should consult their own financial and legal advisors with respect to any matters that may affect the purchase or holding of a Foreign Currency Security or the receipt of payments of principal of and any premium and interest on a Foreign Currency Security in a Specified Currency (as defined below). EXCHANGE RATES AND EXCHANGE CONTROLS An investment in Foreign Currency Securities entails significant risks that are not associated with a similar investment in a security denominated in United States dollars. Such risks include, without limitation, the possibility of significant changes in the rate of exchange between the United States dollar and the currency or currency unit designated in the applicable Prospectus Supplement (the "Specified Currency") and the possibility of the imposition or modification of foreign exchange controls by either the United States or foreign governments. Such risks generally depend on economic and political events over which the Company has no control. In recent years, rates of exchange between the United States dollar and certain foreign currencies have been highly volatile and such volatility may be expected in the future. Fluctuations in any particular exchange rate that have occurred in the past are not necessarily indicative, however, of fluctuations in the rate that may occur during the term of any Foreign Currency Security. Depreciation of the Specified Currency applicable to a Foreign Currency Security against the United States dollar would result in a decrease in the United States dollar-equivalent yield of such Debt Security (or the Debt Security purchasable upon exercise of any Warrant), in the United States dollar-equivalent value of the principal repayable at maturity of such Debt Security (or the Debt Security purchasable upon exercise of such Warrant) and, generally, in the United States dollar- equivalent market value of such Security. Governments have imposed from time to time exchange controls and may in the future impose or revise exchange controls at or prior to a Foreign Currency Security's maturity (or the maturity of the Debt Security issuable upon exercise of a Warrant). Even if there are no exchange controls, it is possible that the Specified Currency for any particular Foreign Currency Security would not be available at such Debt Security's maturity (or the maturity of the Debt Security issuable upon exercise of a Warrant) due to other circumstances beyond the control of the Company. JUDGMENTS If an action based on Foreign Currency Securities were commenced in a court of the United States, it is likely that such court would grant judgment relating to such Securities only in United States dollars. It is not clear, however, whether, in granting such judgment, the rate of conversion into United States dollars would be determined with reference to the date of default, the date judgment is rendered or some other date. Under 11 current New York law, a state court in the State of New York rendering a judgment on a Foreign Currency Security would be required to render such judgment in the Specified Currency in which such Foreign Currency Security is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment. Holders of Foreign Currency Securities would bear the risk of exchange rate fluctuations between the time the amount of the judgment is calculated and the time the applicable Trustee converts United States dollars to the Specified Currency for payment of the judgment. LIMITED FACILITIES FOR CONVERSION Currently, there are limited facilities in the United States for conversion of U.S. dollars into foreign currencies, and vice versa. In addition, banks generally do not offer non-U.S. dollar denominated checking or savings account facilities in the United States. Accordingly, payments on Foreign Currency Securities will, unless otherwise specified in the applicable Prospectus Supplement or Prospectus Supplements, be made from an account with a bank located in the country issuing the Specified Currency (or, with respect to Foreign Currency Securities denominated in ECUs, Brussels). PLAN OF DISTRIBUTION The Company may sell Securities to one or more underwriters for public offering and sale by them or may sell Securities to investors directly or through agents. The applicable Prospectus Supplement or Prospectus Supplements will set forth the terms of the offering of the Securities, including the name or names of any agents, underwriters or dealers, the purchase price of the Securities and the proceeds to be received by the Company from such sale, any underwriting discounts and other items constituting underwriters' compensation and any discounts and commissions allowed or reallowed or paid to dealers or agents. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers or agents may be changed from time to time. In connection with the sale of Securities, underwriters or agents may be deemed to have received compensation from the Company in the form of underwriting discounts or commissions and may also receive commissions from purchasers of Securities for whom they may act as agent. Underwriters may sell Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Underwriters, dealers and agents participating in the distribution of Securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the Securities may be deemed to be underwriting discounts and commissions, under the Securities Act of 1933, as amended. Such underwriters, dealers and agents may be entitled under agreements which may be entered into by the Company to indemnification by the Company against and contribution toward certain liabilities, including liabilities under the Securities Act of 1933, as amended. The Securities may be distributed in one or more transactions from time to time at a fixed price or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Company also may offer and sell the Securities in exchange for one or more of its outstanding issues of debt or convertible debt securities. If so indicated in the applicable Prospectus Supplement or Prospectus Supplements, the Company will authorize dealers or other persons acting as the Company's agents to solicit offers by certain institutions to purchase Securities from the Company at the public offering price set forth in the applicable Prospectus Supplement or Prospectus Supplements pursuant to delayed delivery contracts ("Contracts") providing for payment and delivery on the date or dates stated in the applicable Prospectus Supplement or Prospectus 12 Supplements. There may be limitations on the minimum amount which may be purchased pursuant to a Contract or on the aggregate amount of Securities which may be sold pursuant to Contracts. Any such limitations will be set forth in the applicable Prospectus Supplement or Prospectus Supplements. Institutions with whom Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions, but will in all cases be subject to the approval of the Company. The obligations of any purchaser under any Contract will not be subject to any conditions except (1) the purchase by an institution of the Securities covered by its Contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject and (2) if Securities are being sold to underwriters, the Company shall have sold to such underwriters the total principal amount of such Securities less the principal amount thereof covered by Contracts. The Securities will be a new issue of securities with no established trading market. Any underwriters or agents to or through whom Securities are sold by the Company for public offering and sale may make a market in such Securities, but such underwriters and agents will not be obligated to do so and may discontinue any market-making at any time without notice. No assurance can be given as to the liquidity of the trading market for any Securities. Certain of the underwriters, dealers and/or agents and their associates may be customers of, engage in transactions with and perform services for the Company, including its subsidiaries, in the ordinary course of business. EXPERTS The consolidated financial statements of the Company appearing in FBS' Annual Report on Form 10-K for the year ended December 31, 1994 and the supplemental consolidated financial statements of the Company appearing in FBS' Current Report on Form 8-K filed March 3, 1995 for the year ended December 31, 1994 have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon included therein and incorporated herein by reference. Such consolidated financial statements and supplemental consolidated financial statements are incorporated herein by reference in reliance upon such reports given upon the authority of such firm as experts in accounting and auditing. VALIDITY OF SECURITIES The validity of the Securities will be passed upon for the Company by Dorsey & Whitney P.L.L.P., 220 South Sixth Street, Minneapolis, Minnesota 55402 and for any underwriters or agents by Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017. Davis Polk & Wardwell will rely as to all matters governed by Minnesota law on the opinions of Dorsey & Whitney P.L.L.P. and Michael J. O'Rourke, General Counsel of the Company, and Dorsey & Whitney P.L.L.P. will rely as to all matters governed by New York law on the opinion of Davis Polk & Wardwell. The Dorsey & Whitney P.L.L.P. firm and certain of its members are indebted to and have other banking and trust relationships with certain banking subsidiaries of the Company. 13 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY IN- FORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFER- ENCE IN THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT OR PROSPECTUS SUPPLEMENTS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND THE APPLICABLE PROSPECTUS SUPPLEMENT OR PROSPECTUS SUPPLEMENTS DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY AND THEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. THE DE- LIVERY OF THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT OR PROSPECTUS SUPPLEMENTS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE DATES. --------------- TABLE OF CONTENTS
PAGE ---- Available Information...................................................... 2 Incorporation of Certain Documents by Reference............................ 2 First Bank System, Inc..................................................... 2 Use of Proceeds............................................................ 3 Ratios of Earnings to Fixed Charges........................................ 4 Description of Debt Securities............................................. 4 Description of Warrants.................................................... 10 Foreign Currency Risks..................................................... 11 Plan of Distribution....................................................... 12 Experts.................................................................... 13 Validity of Securities..................................................... 13
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- $1,325,000,000 FIRST BANK SYSTEM, INC. LOGO DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES --------------- PROSPECTUS --------------- , 1995 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION SEC registration fee......................................... $ 344,828 Accountants' fees and expenses............................... 20,000 Attorneys' fees and expenses................................. 75,000 Printing and engraving expenses.............................. 75,000 Fees and expenses of trustees................................ 100,000 State qualification fees and expenses........................ 35,000 Rating agencies' fees........................................ 450,000 Miscellaneous................................................ 50,172 ---------- Total.................................................... $1,150,000* ==========
- -------- * 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 Section 145 of the Delaware General Corporation Law contains detailed provisions for indemnification of directors and officers of Delaware corporations against expenses, judgments, fines and settlements in connection with litigation. Article Ninth of the Company's Restated Certificate of Incorporation, as amended, provides that a director shall not be liable to the Company or its stockholders for monetary damages for a breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under the Delaware statutory provision making directors personally liable for unlawful dividends or unlawful stock repurchases or redemptions or (iv) for any transaction for which the directors derived an improper personal benefit. The Bylaws of the Company provide that the officers and directors of the Company and certain others shall be indemnified to substantially the same extent permitted by Delaware law. The Company maintains a standard policy of officers' and directors' insurance. In the Underwriting Agreement, a form of which is filed as Exhibit 1.1 hereto, and in the Distribution Agreement, a form of which is filed as Exhibit 1.2 hereto, the Underwriters and the Agents, respectively, will agree to indemnify, under certain conditions, the Company, its directors, certain of its officers and persons who control the Company within the meaning of the Securities Act of 1933, as amended (the "Act") against certain liabilities. ITEM 16. LIST OF EXHIBITS
1.1 Proposed form of Underwriting Agreement* 1.2 Proposed form of Distribution Agreement* 4.1 Indenture dated as of October 1, 1991 between the Company and Citibank, N.A., as Senior Note Trustee (incorporated by reference to Exhibit 4.1 to the Company's Current Re- port on Form 8-K dated November 12, 1991) 4.2 Indenture dated as of October 1, 1991 between the Company an Citibank, N.A., as Subordinated Note Trustee, as amended by a First Supplemental Indenture dated as of April 1, 1993 (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K dated November 12, 1991 and Exhibit 4.1 to the Company's Current Report on Form 8-K dated April 26, 1993)
II-1
4.3 Form of Senior Note (included as part of Exhibit 4.1) 4.4 Form of Subordinated Note (included as part of Exhibit 4.2) 4.5 Proposed form of Warrant Agreement (incorporated by refer- ence to Exhibit 4.5 to the Company's Registration State- ment on Form S-3 (File No. 33-39303)) 4.6 Proposed form of Warrant Certificate (included as part of Exhibit 4.5) 5.1 Opinion and consent of Dorsey & Whitney P.L.L.P.* 12.1 Computation of ratio of earnings to fixed charges* 23.1 Consent of Ernst & Young LLP* 23.2 Consent of Dorsey & Whitney P.L.L.P. (included as part of Exhibit 5.1) 24.1 Power of attorney from directors of the Company signing by an attorney-in-fact* 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Citibank, N.A.*
- -------- * Filed herewith. ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change to such information in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change in the information set forth in the registration statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-2 Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING A FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF MINNEAPOLIS, STATE OF MINNESOTA, ON APRIL 7, 1995. First Bank System, Inc. /s/ John F. Grundhofer By: _________________________________ John F. Grundhofer Chairman, President and Chief Executive Officer PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSON IN THE CAPACITIES AND ON APRIL 7, 1995.
SIGNATURE TITLE --------- ----- /s/ John F. Grundhofer Chairman, President, Chief Executive ___________________________________________ Officer and Director (principal executive John F. Grundhofer officer) /s/ Richard A. Zona Vice Chairman and Chief Financial Officer ___________________________________________ (principal financial officer) Richard A. Zona /s/ David J. Parrin Senior Vice President and Controller ___________________________________________ (principal accounting officer) David J. Parrin Coleman Bloomfield* Director ___________________________________________ Coleman Bloomfield, Roger L. Hale* Director ___________________________________________ Roger L. Hale Delbert W. Johnson* Director ___________________________________________ Delbert W. Johnson Norman M. Jones* Director ___________________________________________ Norman M. Jones John H. Kareken* Director ___________________________________________ John H. Kareken Director ___________________________________________ Richard L. Knowlton Director ___________________________________________ Kenneth A. Macke
II-4 Marilyn C. Nelson* Director ___________________________________________ Marilyn C. Nelson Will F. Nicholson, Jr.* Director ___________________________________________ Will F. Nicholson, Jr. Nicholas R. Petry* Director ___________________________________________ Nicholas R. Petry Edward J. Phillips* Director ___________________________________________ Edward J. Phillips James J. Renier* Director ___________________________________________ James J. Renier S. Walter Richey* Director ___________________________________________ S. Walter Richey Richard L. Robinson* Director ___________________________________________ Richard L. Robinson Richard L. Schall* Director ___________________________________________ Richard L. Schall Lyle E. Schroeder* Director ___________________________________________ Lyle E. Schroeder
/s/ David J. Parrin *By: ________________________________ David J. Parrin Attorney-in-fact II-5 EXHIBIT INDEX ------------- Exhibit Number Description Page - -------------- ----------- ---- 1.1 Proposed form of Underwriting Agreement* 1.2 Proposed form of Distribution Agreement* 4.1 Indenture dated as of October 1, 1991 between the Company and Citibank, N.A., as Senior Note Trustee (incorporated by reference to Exhibit 4.1 to the Company's Current Re- port on Form 8-K dated November 12, 1991) 4.2 Indenture dated as of October 1, 1991 between the Company an Citibank, N.A., as Subordinated Note Trustee, as amended by a First Supplemental Indenture dated as of April 1, 1993 (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K dated November 12, 1991 and Exhibit 4.1 to the Company's Current Report on Form 8-K dated April 26, 1993) 4.3 Form of Senior Note (included as part of Exhibit 4.1) 4.4 Form of Subordinated Note (included as part of Exhibit 4.2) 4.5 Proposed form of Warrant Agreement (incorporated by refer- ence to Exhibit 4.5 to the Company's Registration State- ment on Form S-3 (File No. 33-39303)) 4.6 Proposed form of Warrant Certificate (included as part of Exhibit 4.5) 5.1 Opinion and consent of Dorsey & Whitney P.L.L.P.* 12.1 Computation of ratio of earnings to fixed charges* 23.1 Consent of Ernst & Young LLP* 23.2 Consent of Dorsey & Whitney P.L.L.P. (included as part of Exhibit 5.1) 24.1 Power of attorney from directors of the Company signing by an attorney-in-fact* 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Citibank, N.A.* - -------- * Filed herewith. EX-1.1 2 PROPOSED FORM OF UNDERWRITING EXHIBIT 1.1 UNDERWRITING AGREEMENT __________, 19__ First Bank System, Inc. First Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402-4302 Dear Sirs: We (the "Representatives") understand that First Bank System, Inc., a Delaware corporation registered as a bank holding company under the Bank Holding Company Act (the "Company"), proposes to issue and sell $________ aggregate principal amount of ______________ (the "Offered Securities"), to be issued pursuant to the provisions of the [Indenture dated as of October 1, 1991, between the Company and Citibank, N.A., as Trustee] [Indenture dated as of October 1, 1991, between the Company and Citibank, N.A., as Trustee, as amended by a First Supplemental Indenture dated as of April 1, 1993] (the "Indenture") [with Warrant Certificates (the "Offered Warrants"), to be issued pursuant to the provisions of the Warrant Agreement, dated as of ______________, 19______, between the Company and ________________________, as Warrant Agent, evidencing the right to purchase up to $_____________________ aggregate principal amount of ___________________ (the "Warrant Debt Securities") to be issued pursuant to the provisions of the Indenture]. Subject to the terms and conditions set forth herein or incorporated by reference herein, the Company hereby agrees to sell and the underwriters named on Schedule A hereto (such underwriters being herein called the "Underwriters") agree to purchase, severally and not jointly, the principal amounts of such Offered Securities set forth opposite their names on Schedule A at ________% of their principal amount [and accrued interest from ________________, 19______ to the date of payment and delivery] [and the Offered Warrants set forth opposite their names on Schedule A at a price of $______________ per Offered Warrant]. The Underwriters will pay for such Offered Securities [and Offered Warrants] upon delivery thereof at the offices of [name], [address] at 10:00 A.M. (local time) on __________, 19__ or at such other time, not later than __________, 19__ as shall be designated by the Representatives. The Offered Securities [and Offered Warrants] shall have the terms set forth in the Company's Prospectus Supplement, dated __________, 19__ and the Prospectus dated __________, 19__ (the "Basic Prospectus") [,] [.] particularly as follows: [Maturity: __________, 19__ Interest Rate: ____% Redemption Provisions: Redeemable at the option of the Company, as a whole or in part, at any time after __________, 19__ at ____% to and including __________, 19__, at deceasing prices thereafter to and including __________, 19__ and thereafter at 100%. Interest Payment Dates: Other terms:] [Exercise Price: Exercise Dates: Transferability Provisions: Other terms:] [Describe, if applicable, opinion of tax counsel to the Company to be delivered pursuant to Section V(b)] [If securities are to be sold pursuant to delayed delivery contracts, describe delivery dates and underwriters' fee and include those securities within the definition of "Offered Securities" or "Offered Warrants", as applicable.] All the provisions contained in the document entitled First Bank System, Inc. Underwriting Agreement Standard Provisions (Debt/Warrants) (June 1992), included as Exhibit 1.1 to Registration Statement No. 33-________ filed by the Company under the Securities Act of 1933, as amended (the "Standard Provisions"), are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such Standard Provisions had been set forth in full herein. -2- Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Very truly yours, [Names of Representative[s]] [On behalf of [themselves-itself and as Representative[s] of the Several] [As] Underwriter[s] [By__________________________________] By____________________________________ [Title] Accepted: __________, 19__ FIRST BANK SYSTEM, INC. By_________________________ Name: Title: -3- FIRST BANK SYSTEM, INC. UNDERWRITING AGREEMENT STANDARD PROVISIONS (DEBT/WARRANTS) (December 1993) From time to time First Bank System, Inc. a Delaware corporation registered as a banking holding company under the Bank Holding Company Act (the "Company"), may enter into one or more underwriting agreements that provide for the sale of designated securities to one or more underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement". Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. I. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement, including a prospectus specifically relating to the Securities, and has filed with, or mailed for filing to, the Commission a prospectus supplement specifically relating to the Securities pursuant to Rule 424 of the rules and regulations promulgated under the Securities Act of 1933, as amended (the "Securities Act"). The term Registration Statement means the registration statement as amended to the date of the Underwriting Agreement. The term Basic Prospectus means the prospectus included in the Registration Statement. The term Prospectus means the Basic Prospectus together with the prospectus supplement in the form first used to confirm sales of the Offered Securities. The term preliminary prospectus means a preliminary prospectus supplement specifically relating to the Securities together with the Basic Prospectus. As used herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in each case the material, if any, incorporated by reference therein. The term "Securities" means the Offered Securities and/or the Offered Warrants and Warrant Debt Securities described in the Underwriting Agreement of which this Agreement is a part. The term "Underwriters' Securities" means the Offered Securities and/or Offered Warrants to be purchased by the Underwriters herein. The term "Contract Securities" means the Offered Securities and/or Offered Warrants, if any, to be purchased pursuant to the delayed delivery contracts referred to below. II. If the Prospectus provides for sales of Offered Securities and/or Offered Warrants, if any, pursuant to delayed delivery contracts, the Company hereby authorizes the Underwriters to solicit offers to purchase Contract Securities on the terms and subject to the conditions set forth in the Prospectus pursuant to delayed delivery contracts substantially in the form of Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are to be with institutional investors approved by the Company and of the types set forth in the Prospectus. On the Closing Date (as hereinafter defined), the Company will pay the Representatives as compensation, for the accounts of the Underwriters, the fee set forth in the Underwriting Agreement in respect of the principal amount of Contract Securities. The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts with institutional investors, the Contract Securities shall be deducted from the Offered Securities and/or Offered Warrants, if any, to be purchased by the several Underwriters, and the aggregate principal amount of Offered Securities (or number of Offered Warrants, if applicable) to be purchased by each Underwriter shall be reduced pro rata in proportion to the principal amount of Offered Securities (or number of Offered Warrants, if applicable) set forth opposite each Underwriter's name in the Underwriting Agreement, except to the extent that the Representatives determine that such reduction shall be otherwise and so advises the Company. III. The Company is advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the Underwriters' Securities as soon after this Agreement is entered into as in the Representatives' judgment is advisable. The Underwriters will offer the Underwriters' Securities for sale upon the terms and conditions set forth in the Prospectus. IV. Payment for Underwriters' Securities shall be made by wire transfer of immediately available funds, or such other funds as specified in the Underwriting Agreement, at the time and place set forth in the Underwriting Agreement, upon delivery to the Representatives for the respective accounts of the several Underwriters of the Underwriters' Securities registered in such names and in such denominations as the Representatives shall request in writing not less than three full business days prior to the date of delivery. The time and date of such payment and delivery with respect to the Underwriters' Securities are herein referred to as the Closing Date. The Underwriters' Securities will be made available for checking and packaging at least twenty- four hours prior to the time for delivery. -2- V. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) The Representatives shall have received on the Closing Date a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated the Closing Date and to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any nationally recognized statistical rating organization, (ii) that the representations and warranties of the Company contained in Section VII are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (b) The Representatives shall have received on the Closing Date an opinion of Dorsey & Whitney P.L.L.P., counsel to the Company, dated the Closing Date, to the effect set forth in Exhibit A, and, if applicable, an opinion of tax counsel to the Company, dated the Closing Date, covering such matters as may be mutually agreed upon and set forth in the Underwriting Agreement. In rendering such opinion to the effect set forth in Exhibit A, such counsel may rely as to matters of New York law upon the opinion of Davis Polk & Wardwell being delivered pursuant to subparagraph (d). (c) The Representatives shall have received on the Closing Date an opinion of the General Counsel of the Company, dated the Closing Date, to the effect set forth in Exhibit B. (d) The Representatives shall have received on the Closing Date an opinion of counsel to the Underwriters, dated the Closing Date, relating to the validity of the Indenture, the Securities and the Warrant Agreement, if any, the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request. In rendering such opinion, such counsel may rely as to matters of Minnesota law upon the opinions of Dorsey & Whitney and the General Counsel of the Company being delivered pursuant to subsections (b) and (c), respectively. (e) The Representatives shall have received on or prior to the date of this Agreement and the Closing Date letters, each dated the date of delivery thereof and in form and substance satisfactory to the Representatives, from Ernst & Young LLP, to the effect set forth in Exhibit C. -3- (f) At the Closing Date the counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Offered Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Offered Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and their counsel. (g) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, other than as set forth in the Prospectus, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or the delivery of the Offered Securities on the terms and in the manner contemplated by the Prospectus, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the American Stock Exchange or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company shall not have been downgraded nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating, and (v) the Prospectus, at the time it was required to be delivered to a purchaser of the Offered Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. -4- VI. In further consideration of the agreements of the Underwriters contained in this Agreement, the Company hereby covenants: (a) The Company will give the Representatives notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Securities Act or otherwise. The Company will furnish the Representatives with copies of any such amendment or supplement or other documents, other than documents filed pursuant to the Exchange Act, proposed to be filed a reasonable time in advance of filing, and will furnish the Representatives with copies of documents filed pursuant to the Exchange Act promptly upon the filing thereof; (b) The Company will notify the Representatives immediately (i) of the filing and effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the Exchange Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of initiation of any proceedings for that purpose, or (vi) of the suspension of qualification of the Offered Securities for offering or sale in any jurisdiction or the initiation or threat of initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order or suspension of qualification and, if any stop order or suspension of qualification is issued, to obtain the lifting thereof at the earliest possible moment; (c) If, during the period after the date of the first public offering of the Offered Securities and/or Offered Warrants, if any, when the Prospectus is required by law to be delivered, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of the counsel for the Underwriters or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Securities Act or the rules and regulations issued by the Commission thereunder immediate notice shall be -5- given, and confirmed in writing, to the Representatives, and the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the Exchange Act, the Securities Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements; (d) The Company will make generally available to its security holders (as defined in Rule 158) as soon as practicable, but not later than 45 days after the close of each of the first three fiscal quarters of each fiscal year and 90 days after the close of each fiscal year, earnings statements (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve month period beginning not later than the first day of the fiscal quarter next following the effective date of the Registration Statement (as defined in Rule 158) with respect to each sale of Securities; (e) The Company will deliver to the Representatives as many signed and conformed copies of the registration statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Representatives may reasonably request. The Company will furnish to the Representatives as many copies of the Prospectus (as amended or supplemented) as the Representatives shall reasonably request so long as the Underwriters are required to deliver a Prospectus in connection with the offering or sale of the Offered Securities and/or Offered Warrants; (f) The Company will endeavor, in cooperation with the Representatives, to qualify the Offered Securities and/or Offered Warrants for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Offered Securities and/or Offered Warrants; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided; (g) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act; (h) During the period beginning on the date of the Underwriting Agreement and continuing to and including the business day following the Closing Date, the Company will not, without the prior consent of the Representatives, offer or sell in the United States, or enter into any agreement -6- to sell in the United States, any debt securities of the Company with terms substantially similar to the Securities. VII. The Company represents and warrants to, and agrees with, each of the Underwriters that: (a) The Registration Statement has been filed with the Commission in the form heretofore delivered or to be delivered to the Representatives and, excluding exhibits to the Registration Statement, but including all documents incorporated by reference in the Basic Prospectus, to the Representatives for each of the other Underwriters and the Registration Statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission; (b) The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and when read together and with the other information in the Prospectus, at the time the Registration Statement became, and any amendments thereto become, effective, and as of the Closing Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading; (c) The Registration Statement and the Prospectus, at the time the Registration Statement and each part thereof became or hereafter become effective, complied and any amendments or supplements thereto will comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of the Commission thereunder. The Registration Statement at the time the Registration Statement and each part thereof became effective did not and as of the Closing Date will not, contain an untrue statement of any material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time the Registration Statement became effective did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to an Underwriter furnished in writing to the Company by such Underwriter of Offered -7- Securities and/or Offered Warrants, if any, through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Offered Securities and/or Offered Warrants, if any or to that part of the Registration Statement constituting the Statement of Eligibility and Qualification under the Trust Indenture Act (Form T-1) of the Trustee; (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification; (e) First Bank National Association, the Company's Principal Subsidiary Bank, has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; all of the issued and outstanding capital stock of such bank has been duly authorized and validly issued and is fully paid and, except as provided in 12 U.S.C. Section 55, non-assessable; and at least 99% of the capital stock of First Bank National Association, other than any director's qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity; (f) The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, and the shares of issued and outstanding Common Stock set forth thereunder have been duly authorized and validly issued and are fully paid and non-assessable; (g) Neither the Company nor any of its subsidiaries is in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them or their properties may be bound; and the execution and delivery of this Agreement, the Offered Securities, the Indenture, each applicable Delayed Delivery Contract (as defined in Section II) and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is -8- subject, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any law, administrative regulation or administrative or court order or decree; and no consent, approval, authorization, order or decree of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Securities Act, the Trust Indenture Act or the rules and regulations of the Commission thereunder, all of which have been obtained, or such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Securities and/or Offered Warrants, if any, by the Underwriters; (h) The Company and its subsidiaries own or possess or have obtained all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to lease or own, as the case may be, and to operate their respective properties and to carry on their respective businesses as presently conducted; (i) The Company and its subsidiaries own or possess adequate trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the conduct of the business, operations, financial condition or income of the Company and its subsidiaries considered as one enterprise; (j) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened against or affecting, the Company or any of its subsidiaries, which might result in any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the business prospects of the Company and its subsidiaries considered as one enterprise, or might materially and adversely affect the properties or assets thereof or might materially and adversely affect the consummation of this Agreement and the consummation of the transactions contemplated hereby; and there are no material contracts or documents of the Company or any of its subsidiaries which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the rules and regulations of the Commission thereunder which have not been so filed; (k) The Offered Securities have been duly authorized for issuance and sale pursuant to this Agreement, and, when issued, authenticated and delivered pursuant to this Agreement against payment of the consideration therefor specified herein and, in the case of any Contract Securities, pursuant to Delayed Delivery Contracts with respect to such Contract Securities, such -9- Offered Securities will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability, and will be entitled to the benefits provided by the Indenture; and the Offered Securities and the Indenture conform in all material respects to all statements relating thereto in the Prospectus; (l) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent; (m) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is the valid and binding agreement of the Company, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (n) If Offered Warrants are to be issued and delivered pursuant to this Agreement, such Offered Warrants, the related Warrant Agreement and the Warrant Debt Securities have been duly authorized and, when the Offered Warrants are issued and delivered pursuant to this Agreement and, in the case of any Contract Securities, pursuant to Delayed Delivery Contracts with respect to such Contract Securities, such Offered Warrants will have been duly executed, countersigned, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided in the related Warrant Agreement and such Warrant Agreement will have been duly executed and delivered by the Company and will constitute a valid and legally binding agreement of the Company, enforceable in accordance with its terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable principles of general applicability; and the Warrant Debt Securities, when issued and delivered pursuant to the related Warrant Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; (o) In the event any of the Offered Securities and/or Offered Warrants, if any, are purchased pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts has been duly authorized by the Company and, when executed and delivered by the Company and the purchaser named therein, will constitute a valid and legally binding agreement of the Company enforceable in accordance with its terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or -10- affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable principles of general applicability; and any Delayed Delivery Contracts will conform to the description thereof in the Prospectus; (p) The accountants who certified the financial statements included or incorporated by reference in the Prospectus are independent public accountants as required by the Securities Act and the rules and regulations issued by the Commission thereunder; (q) The financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; except as stated therein, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; and the pro forma financial information, and the related notes thereto, included or incorporated by reference to the Prospectus has been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations issued by the Commission thereunder; (r) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein or contemplated thereby, (A) there has been no material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise or in the earnings, affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and (B) there have been no material transactions entered into by the Company, or any of its subsidiaries other than those in the ordinary course of business; and (s) This Agreement has been duly authorized, executed and delivered by the Company. VIII. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter (each an "Indemnified Person") within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue -11- statement of a material fact contained in the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission was made in reliance upon and in conformity with written information relating to such Indemnified Person furnished to the Company by the Representatives expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement); (ii) against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to such Indemnified Person furnished by the Representatives as aforesaid) if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever (including the fees and disbursements of counsel chosen by such Indemnified Person), as incurred, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to such Indemnified Person furnished by the Representatives as aforesaid), to the extent that any such expense is not paid under (i) or (ii) above. (b) Each Underwriter will indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement) in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by the Representatives expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement). -12- (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder but failure to so notify an indemnifying party shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; provided, however, that when more than one of the Underwriters is an indemnified party each such Underwriter shall be entitled to separate counsel (in addition to any local counsel) in each such jurisdiction to the extent such Underwriter may have interests conflicting with those of the other Underwriter or Underwriters because of the participation of one Underwriter in a transaction hereunder in which the other Underwriter or Underwriters did not participate. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section VIII is for any reason held to be unavailable to the Underwriters in accordance with its terms, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and the Underwriters with respect to Securities sold to the Underwriters in such proportions as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in such proportion represented by the percentage that the total commissions and underwriting discounts received by the Underwriters to the date of such liability bears to the total sales price (before deducting expenses) received by the Company from the sale of Securities made to the Underwriters to the date of such liability, and the Company is responsible for the balance. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the Underwriters failed to give the notice required under (c), then the Company and the Underwriters shall contribute to such aggregate losses, liabilities, claims, damages and expenses in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Underwriters in connection with the statements or omissions which resulted in such liabilities, claims, damages and expenses, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Representatives and the parties' relative intent, knowledge, access to information and opportunity to correct or -13- prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this paragraph were determined pro rata (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. Notwithstanding the provisions of this paragraph, the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities referred to in the second sentence of this paragraph that were offered and sold to the public through the Underwriters exceeds the amount of any damages that the Underwriters have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled under this paragraph to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. IX. The indemnity and contribution agreements contained in Section VIII hereof and the representations and warranties of the Company in this Agreement or in any certificate submitted pursuant hereto shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Underwriter or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company or the directors or officers or any person controlling the Company and (iii) acceptance of any payment for any of the Offered Securities and/or Offered Warrants, if any. X. If any Underwriter shall default in its obligation to purchase the Offered Securities and/or Offered Warrants, if any, which it has agreed to purchase hereunder, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Offered Securities and/or Offered Warrants, if any, on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Offered Securities and/or Offered Warrants, if any, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Offered Securities and/or Offered Warrants, if any, on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they -14- have so arranged for the purchase of such Offered Securities and/or Offered Warrants, if any, or the Company notifies the Representatives that it has so arranged for the purchase of such Offered Securities and/or Offered Warrants, if any, the Representatives or the Company shall have the right to postpone the Closing Date for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the reasonable opinion of the Representatives may thereby be made necessary. The term "Underwriters" as used in this Agreement shall include any person substituted under this Section X with like effect as if such person had originally been a party to this Agreement with respect to such Offered Securities and/or Offered Warrants, if any. If, after giving effect to any arrangements for the purchase of the Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in the immediately preceding paragraph hereof, the aggregate principal amount of such Offered Securities (or number of Offered Warrants, if Offered Warrants alone are being offered) which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Offered Securities (or number of Offered Warrants, if Offered Warrants alone are being offered), then the Company shall have the right to require each non-defaulting Underwriter to purchase the Offered Securities and/or Offered Warrants, if any, which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Offered Securities (or number of Offered Warrants, if Offered Warrants alone are being offered) which such Underwriter agreed to purchase hereunder) of the Offered Securities and/or Offered Warrants, if any, of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. If, after giving effect to any arrangements for the purchase of the Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in the first paragraph of this Section X, the aggregate principal amount of Offered Securities (or number of Offered Warrants, if Offered Warrants alone are being offered) which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Offered Securities (or number of Offered Warrants, if Offered Warrants alone are being offered) or if the Company shall not exercise the right described in the immediately preceding paragraph to require non-defaulting Underwriters to purchase Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non- defaulting Underwriters or the company, except for the expenses to be borne by the Company and the Underwriters as provided in Section XI hereof and the indemnity and contribution agreements in Section VIII hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. -15- XI. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Securities under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and to dealers; (ii) the cost of printing this Agreement, the Indenture, any Warrant Agreement and any Blue Sky and legal investment memoranda; (iii) all expenses in connection with the qualification of the Offered Securities and/or Offered Warrants, if any, for offering and sale under state securities laws as provided in Section VI(f) hereof, including the fees and disbursements of counsel in connection with such qualification and in connection with the preparation of any Blue Sky memorandum or any Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (vii) the fees and expenses of the Warrant Agent, if any, and any agent of such Warrant Agent and the fees and disbursements of counsel for such Warrant Agent in connection with the Warrant Agreement and the Offered Warrants and Warrant Debt Securities, if any; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section X. It is understood, however, that, except as provided in this Section XI and Sections VIII and XII hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Securities and/or Offered Warrants, if any, by them and any advertising expenses connected with any offers they may make. XII. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters, or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with the Securities. -16- XIII. In all dealings hereunder, the Representatives of the Underwriters of Offered Securities and/or Offered Warrants, if any, shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the representatives, if any, as may be designated for such purpose hereunder. All statements, requests, notices and agreements hereunder shall be in writing or by telegram if promptly confirmed in writing, and if to the Underwriters shall be sufficient in all respects if delivered or sent by registered mail to the address of the principal offices of the Representatives and if to the Company shall be sufficient in all respects if delivered or sent by registered mail to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section VIII(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the representatives upon request. XIV. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section VIII hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Offered Securities and/or Offered Warrants, if any, from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. XV. Time shall be of the essence of this Agreement. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement and the rights and obligations of the parties created hereby shall be governed by the laws of the State of New York. -17- Schedule I DELAYED DELIVERY CONTRACT __________, 19__ Dear Sirs: The undersigned hereby agrees to purchase from First Bank System, Inc., a Delaware corporation (the "Company") and the Company agrees to sell to the undersigned [$________________ principal amount of the Company's title of issue] (the "Securities")] [________ Warrants, each evidencing the right to purchase a [state title of Warrant Debt Securities], (the "Warrant Debt Securities") in the principal amount of $_________], offered by the Prospectus dated ____________, 19__ and Prospectus Supplement dated ____________, 19__, receipt of copies of which are hereby acknowledged, [at a purchase price of ________% of the principal amount thereof plus accrued interest from ____________, if any] for an [aggregate] Purchase Price of $________] and on the further terms and conditions set forth in this contract. The undersigned does not contemplate selling Securities [and Warrants] prior to making payment therefor. [The undersigned will purchase from the Company Securities in the principal amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued Interest, Date Amount If any, From: --------- --------- ---------------------- ......... $........ ..................... ......... $........ ..................... ......... $........ .....................]
[The undersigned will purchase from the Company Warrants represented by Warrant Certificates bearing the terms and on the delivery dates set forth below:] Each such date on which Securities [and Warrants] are to be purchased hereunder is hereinafter referred to as a "Delivery Date." Payment for the Securities which the undersigned has agreed to purchase on each Delivery Date shall be made to the Company or its order by [certified or official bank check drawn on a bank approved by the Company and in New York Clearing House (next day) funds] at the office of ___________________________, New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to the undersigned of the Securities to be purchased by the undersigned on the Delivery Date, in definitive fully registered form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. The obligation of the undersigned to take delivery of and make payment for the Securities on the Delivery Date shall be subject to the conditions that (i) the investment in the Securities to be made by the undersigned shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject and (ii) the Company shall have sold, and delivery shall have taken place to the underwriters (the "Underwriters") named in the Prospectus Supplement referred to above, of such part of the Securities as is to be sold to them. Promptly after completion of sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinions of counsel for the Company delivered to the Underwriters in connection therewith. Failure to take delivery of and make payment for Securities by any purchaser under any other Delayed Delivery Contract shall not relieve the undersigned of its obligations under this contract. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract, as of the date first above written, between the Company and the undersigned when such counterpart is so mailed or delivered. -2- This contract shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, _________________________________________ (Purchaser) By________________________________________ _________________________________________ (Title) _________________________________________ _________________________________________ (Address) Accepted: FIRST BANK SYSTEM, INC. By________________________ -3- PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING The name, telephone number and department of the representative of the Purchaser with whom details of delivery on the Delivery Date may be discussed is as follows: (Please print.)
Telephone No. Name (Including Area Code) Department ---- --------------------- ---------- __________________ ______________________ ________________
-4- Exhibit A Opinion of Counsel to the Company --------------------------------- The opinion or opinions of Dorsey & Whitney P.L.L.P., counsel to the Company, to be delivered pursuant to Section V(b) of the Agreement, shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. (ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement. (iii) First Bank National Association has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement. (iv) The Underwriting Agreement and any applicable Delayed Delivery Contract have been duly authorized, executed and delivered by the Company. (v) The Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by principles of general applicability. (vi) The Offered Securities have been duly and validly authorized by all necessary corporate action and the Offered Securities other than any Contract Securities constitute, and any Contract Securities, when executed and authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as (i) enforcement thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability, and each holder of Offered Securities is entitled to the benefits of the Indenture and each holder of Contract Securities, when executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will be entitled to the benefits of the Indenture. (vii) The statements in the Basic Prospectus under the captions "Description of Debt Securities" ["Description of Warrants"] and "Plan of Distribution" and similar captions in the applicable prospectus supplement insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate summaries of such provisions. (viii) The Indenture is qualified under the Trust Indenture Act. (ix) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission. (x) At the time the Registration Statement became effective, and at the date hereof, the Registration Statement and the Prospectus and each document incorporated by reference therein (other than the financial statements, schedules and other financial data included therein and the Statement of Eligibility and Qualification of the Trustee on Form T-1 filed as an exhibit thereto, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Exchange Act, the Trust Indenture Act and the rules and regulations under each of those Acts. (xi) No consent, approval, authorization, or order of any court or governmental authority or agency is required in connection with the sale of the Offered Securities [and Offered Warrants], except such as may be required under the Securities Act or the rules and regulations thereunder, all of which have been obtained, or such as may be required state securities laws. [If Offered Warrants are to be issued and delivered pursuant to this Agreement insert -- (xii) The Offered Warrants have been duly authorized by all necessary corporate action and the Offered Warrants other than any Contract Securities constitute, and any Contract Securities, when executed, authenticated, issued and delivered in the manner provided in the related Warrant Agreement and sold pursuant to Delayed Delivery Contracts, constitute, valid and legally binding obligations of the company entitled to the benefits provided in the related Warrant Agreement. (xiii) The Warrant Agreement has been duly authorized by all necessary corporate action and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, or other laws -2- relating to or affecting creditors' rights generally, or by general equity principles, and each holder of Offered Warrants is entitled to the benefits of the related Warrant Agreement and each holder of Contract Securities, when executed, authenticated, issued and delivered in the manner provided in the related Warrant Agreement and sold pursuant to Delayed Delivery Contracts, will be entitled to the benefits of the related Warrant Agreement (xiv) The Warrant Debt Securities have been duly and validly authorized by all necessary corporate action and when duly executed, authenticated, issued and delivered pursuant to the related Warrant Agreement, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws relating to or affecting creditors' rights generally, or by general equity principles, and each holder of Warrant Debt Securities will be entitled to the benefits provided by the Indenture.] In addition, Dorsey & Whitney P.L.L.P. will state that it has participated in the preparation of the Registration Statement and the Prospectus and that nothing has come to such counsel's attention that causes such counsel reason to believe that (other than the financial statements, schedules and other financial data included therein, as to which no statement need be rendered) the Registration Statement and the Prospectus, at the time the Registration Statement became effective, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented at the Closing Date, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. -3- Exhibit B Opinion of General Counsel of the Company ----------------------------------------- The opinion of the General Counsel of the Company, to be delivered pursuant to Section V(c) of the Agreement, shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification and where the failure so to qualify would have a material adverse effect on the Company and its subsidiaries, taken as a whole. (ii) First Bank National Association is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of the business requires such qualification and where the failure so to qualify would have a material adverse effect on the Company and its subsidiaries, taken as a whole. (iii) There are no legal or governmental proceedings pending or, to the best of such counsel's knowledge, threatened which are required to be disclosed in the Registration Statement, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their property is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered individually or in the aggregate, not material. (iv) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. (v) The execution and delivery of this Agreement, any applicable Delayed Delivery Contract, any applicable Warrant Agreement and the Indenture and the consummation of the transactions contemplated herein and therein will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel to be applicable to the Company nor will such action result in any violation of the provisions of the charter or by-laws of the Company. -2- Exhibit C Letter from Ernst & Young LLP ----------------------------- The Letter of Ernst & Young LLP to be delivered pursuant to Section V(e) of the Agreement shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the Securities Act and the applicable published rules and regulations thereunder. (ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, as applicable, and the published rules and regulations thereunder. (iii) They have made a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the American Institute of Certified Public Accountants, as indicated in their report or reports attached to such letter. (iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, and the published rules and regulations thereunder or that the unaudited financial statements are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the Prospectus. (v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that: (A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to the date of delivery of such letter, there was any change in the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in allowance for credit loss or consolidated common shareholders' equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or (B) for the period from the date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net income, consolidated net interest income before the provision for credit losses, consolidated net interest income after the provision for loan losses or in the ratio of earnings to fixed charges, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter. (vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this Exhibit C. -2- EX-1.2 3 PROPOSED FORM OF DIST AGREEMENT EXHIBIT 1.2 DISTRIBUTION AGREEMENT __________, 199_ [NAME AND ADDRESS(ES) OF AGENT(S)] Dear Sirs: First Bank System, Inc., a Delaware corporation (the "Company"), confirms its agreement with you (you and each person executing a Distribution Agreement substantially similar to this Agreement (including the Commission Schedule attached hereto as Schedule A) being hereinafter referred to as an "Agent") with respect to the issue and sale by the Company of up to $______ aggregate principal amount or its equivalent in foreign currencies or currency units of [Medium-Term Notes] (the "Securities"). The [Senior Notes] are to be issued pursuant to an [Indenture dated as of October 1, 1991 (the "[Senior Note Indenture]") between the Company and Citibank, N.A., as trustee (the "[Senior Note Trustee]")], and the [Subordinated Notes] are to be issued pursuant to an [Indenture dated as of October 1, 1991 (the "[Subordinated Note Indenture]") between the Company and Citibank, N.A., as trustee (the "[Subordinated Trustee]")]. The [Senior Note Indenture] and the [Subordinated Note Indenture], together with any Officers' Certificates establishing the terms of the Securities and any applicable Authentication Certificate Supplemental to Officers' Certificate, Citi Treasury Manager transmission, facsimile transmission or supplemental indentures, are collectively referred to herein as the Indentures. It is understood that the Company may from time to time authorize the issuance of additional Securities and that such additional Securities may be sold through or to the Agents pursuant to the terms of this Agreement, as though the issuance of such Securities were authorized as of the date hereof. Subject to the terms and conditions stated herein, the Company hereby (i) appoints you as an agent of the Company for the purpose of soliciting purchases of the Securities from the Company by others and (ii) agrees that whenever the Company determines to sell Securities directly to you as principal for resale to others, it may enter into a Terms Agreement relating to such sale in accordance with the provisions of Section 2(c) hereof. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 33-______) relating to the Securities and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"). Such registration statement has been declared effective by the Commission, and the Indentures have been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement and the prospectus and any amendments or supplements thereto relating to the Securities filed pursuant to Rule 424 under the 1933 Act, including all documents incorporated therein by reference, as from time to time amended or supplemented by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus," respectively. SECTION 1. Representations and Warranties. (a) The Company represents and warrants to you as of the date hereof, as of the Closing Time and each Settlement Date hereinafter referred to, and as of the times referred to in Sections 6(a) and 6(b) hereof (in each case the "Representation Date"), as follows: (i) The Registration Statement and the Prospectus, at the time the Registration Statement and each part thereof became effective, complied, and as of the applicable Representation Date will comply, in all material respects with the requirements of the 1933 Act, the rules and regulations thereunder (the "Regulations") and the 1939 Act. The Registration Statement at the time the Registration Statement and each part thereof became effective did not, and as of the applicable Representation Date will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time the Registration Statement became effective did not, and as of the applicable Representation Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information relating to you furnished to the Company in writing by you expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification under the 1939 Act (Form T-1) of the Trustee. (ii) The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, at the time the Registration Statement became, and any amendments thereto become, effective, and as of the applicable Representation Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or -2- necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading. (iii) The accountants who certified the financial statements included or incorporated by reference in the Prospectus are independent public accountants as required by the 1933 Act and the Regulations. (iv) The financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; except as stated therein, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis. (v) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein or contemplated thereby, (A) there has been no material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise or in the earnings, affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and (B) there have been no material transactions entered into by the Company, or any of its subsidiaries other than those in the ordinary course of business. (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification. (vii) First Bank National Association, the Company's Principal Subsidiary Bank, has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; all of the issued and outstanding capital stock of such bank has been duly authorized and validly issued and is fully paid and, except as provided in 12 U.S.C. Section 55, non-assessable; and at least 99% of the capital stock of First Bank National Association, other than any director's qualifying shares, is -3- owned by the Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity. (viii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus and the shares of issued and outstanding Common Stock set forth thereunder have been duly authorized and validly issued and are fully paid and non-assessable. (ix) Neither the Company nor any of its subsidiaries is in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them or their properties may be bound; and the execution and delivery of this Agreement, the Securities, the Indentures, each applicable Delayed Delivery Contract (as defined in Section 2(b)) and each applicable Terms Agreement, if any, and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any law, administrative regulation or administrative or court order or decree; and no consent, approval, authorization, order or decree of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the 1933 Act, the 1939 Act or the Regulations, all of which have been obtained, or such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents. (x) The Company and its subsidiaries own or possess or have obtained all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to lease or own, as the case may be, and to operate their respective properties and to carry on their respective businesses as presently conducted. (xi) The Company and its subsidiaries own or possess adequate trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Company nor any of its -4- subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the conduct of the business, operations, financial condition or income of the Company and its subsidiaries considered as one enterprise. (xii) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened against or affecting, the Company or any of its subsidiaries, which might result in any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the business prospects of the Company and its subsidiaries considered as one enterprise, or might materially and adversely affect the properties or assets thereof or might materially and adversely affect the consummation of this Agreement and the consummation of the transactions contemplated hereby; and there are no material contracts or documents of the Company or any of its subsidiaries which are required to be filed as exhibits to the Registration Statement by the 1933 Act or by the Regulations which have not been so filed. (xiii) The Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and of the Indentures against payment of the consideration therefor specified herein, the Securities will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability, and will be entitled to the benefits provided by the Indentures, which are substantially in the form heretofore delivered to you; and the Securities and the Indentures conform in all material respects to all statements relating thereto contained in the Registration Statement. (xiv) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent. (xv) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. -5- (xvi) The Indentures have been duly qualified under the 1939 Act and have been duly authorized, executed and delivered by the Company and are the valid and binding agreements of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (b) Any certificate signed by any officer of the Company and delivered to you or to your counsel in connection with an offering of Securities shall be deemed a representation and warranty by the Company to you as to the matters covered thereby. SECTION 2. Solicitations as Agent; Purchases as Principal. (a) Solicitations as Agent. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, you agree to use your reasonable efforts, as agent for the Company, to solicit offers to purchase the Securities upon the terms and conditions set forth in the Prospectus. The Company reserves the right, in its sole discretion, to suspend solicitation of purchases of the Securities commencing at any time for any period of time or permanently. Upon receipt of instructions from the Company, you will forthwith suspend solicitation of purchases from the Company until advised by the Company that such solicitation may be resumed. The Company agrees to pay you a commission, in the form of a discount, equal to the percentage of the principal amount (in the case of Original Issue Discount Securities, the principal amount payable at the stated maturity thereof) of each Security sold by the Company as a result of a solicitation made or offer to purchase received by you, as agent for the Company, as set forth in Schedule A hereto. You, in your capacity as agent for the Company, are authorized to solicit orders for the Securities with terms specified to you from time to time by the Company. You shall communicate to the Company, orally or in writing, each offer to purchase Securities received by you as agent that in your judgment should be considered by the Company. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. You shall have the right to reject any offer to purchase the Securities received by you in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein. -6- (b) Delayed Delivery Contracts. The Company authorizes you to solicit offers to purchase Securities pursuant to delayed delivery contracts (the "Contract Securities") substantially in the form of Exhibit B attached hereto ("Delayed Delivery Contracts") with such changes therein as the Company may approve. Delayed Delivery Contracts are to be entered into only with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. Upon execution of a Delayed Delivery Contract by the Company, the Company will pay you as compensation the fee set forth in Schedule A hereto in respect of the principal amount of Contract Securities purchased as a result of solicitations made by you. The Company will make Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by you have been approved by the Company. You will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. (c) Purchases as Principal. Each sale of Securities to you as principal shall be made in accordance with the terms of this Agreement and (unless the Company and you shall otherwise agree) a separate agreement which will provide for the sale of such Securities to, and the purchase and reoffering thereof by, you. Each such separate agreement (which shall be substantially in the form of Exhibit A hereto and which may take the form of an exchange of any standard form of written telecommunication between you and the Company) is herein referred to as a "Terms Agreement". Your commitment to purchase Securities pursuant to any Terms Agreement or otherwise shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth; provided, however, that for purposes of any Terms Agreement all references in this Agreement to "you" or "the Agents" shall be deemed to refer only to the Agent or Agents that are a party to such Terms Agreement. Each Terms Agreement shall specify the principal amount of Securities to be purchased by you pursuant thereto, the price to be paid to the Company for such Securities, the initial public offering price, if any, at which the Securities are proposed to be reoffered, and the time of delivery of and payment for such Securities and such other provisions as may be mutually agreed upon. Such Terms Agreement shall also specify any requirements for officer's certificates, opinions of counsel and letters from Ernst & Young pursuant to Sections 5 and 6 hereof. For each sale of Securities to an Agent as principal that is not made pursuant to a Terms Agreement, the procedural details relating to the issue and delivery of such Securities and payment therefor shall be as set forth in the Procedures (as defined below). For each such sale of Securities to an Agent as principal that is not made pursuant to a Terms Agreement, the Company agrees to pay such Agent a commission (or grant an equivalent discount) as provided in Section 2(a) hereof and as set forth in Schedule A hereto (unless another discount is agreed upon). Securities purchased by an Agent as principal may be resold by such Agent to one or more investors or other purchasers at varying prices related to prevailing -7- market prices at the time of such resale, as determined by such Agent. In addition, such Agent may offer the Securities it has purchased as principal to other dealers. (d) Procedures; Settlement. Administrative procedures respecting the sale of Securities shall be agreed upon from time to time by the Agents and the Company (the "Procedures"). You and the Company agree to perform on and after the Closing Time the respective duties and obligations specifically provided to be performed by each of them herein and in the Procedures. The time of delivery of and payment for Securities, whether pursuant to a Terms Agreement or other agreement to purchase Securities as principal or pursuant to another purchaser's offer to purchase Securities solicited by you in your capacity as agent for the Company, is hereinafter referred to as the "Settlement Date" for such Securities. (e) You agree, with respect to any Security denominated in a currency other than U.S. dollars, as agent, directly or indirectly, not to solicit offers to purchase, and as principal under any Terms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Security in, or to residents of, the country issuing such currency (or, if such Security is denominated in a composite currency, in any country issuing a currency comprising a portion of such composite currency), except as permitted by applicable law. (f) Delivery. The documents initially required to be delivered by Section 5 hereof shall be delivered at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York on the date hereof, or at such other time as you and the Company may agree upon in writing (the "Closing Time"). SECTION 3. Covenants of the Company. The Company covenants with you as follows: (a) If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of the counsel for the Agents or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the Regulations, immediate notice shall be given, and confirmed in writing, to you to cease the solicitation of offers to purchase the Securities in your capacity as agent for the Company and to cease sales of any Securities you may then own as principal pursuant to a Terms Agreement or otherwise, and the Company will promptly prepare and file with the Commission -8- such amendment or supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements. (b) On the date on which there shall be released to the general public interim financial statement information related to the Company with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, the Company shall furnish such information to you, confirmed in writing, and shall cause the Prospectus to be amended or supplemented to include or incorporate by reference capsule financial information with respect to the results of operations of the Company for the period between the end of the preceding fiscal year and the end of such quarter or for such fiscal year, as the case may be, and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding of such amounts or as shall be required by the 1933 Act or the Regulations; provided, however, that if on the date of such release you shall have suspended solicitation of purchases of the Securities in your capacity as agent for the Company pursuant to a request from the Company, and shall not then hold any Securities as principal, the Company shall not be obligated so to amend or supplement the Prospectus until such time as the Company shall determine that solicitation of purchases of the Securities should be resumed or shall subsequently enter into a new Terms Agreement with you. (c) On the date on which there shall be released to the general public financial information included in or derived from the audited financial statements of the Company for the preceding fiscal year, the Company shall cause the Registration Statement and the Prospectus to be amended, pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements or as shall be required by the 1933 Act or the Regulations; provided, however, that if on the date of such release you shall have suspended solicitation of purchases of the Securities in your capacity as agent for the Company pursuant to a request from the Company, and shall not then hold any Securities as principal, the Company shall not be obligated so to amend or supplement the Prospectus until such time as the Company shall determine that solicitation of purchases of the Securities should be resumed or shall subsequently enter into a new Terms Agreement with you. (d) The Company will make generally available to its security holders (as defined in Rule 158) as soon as practicable, but not later than 45 days after the close of each of the first three fiscal quarters of each fiscal year and 90 days after the close of each fiscal year, earnings statements (in form complying with the -9- provisions of Rule 158 under the 1933 Act) covering a twelve month period beginning not later than the first day of the fiscal quarter next following the effective date of the Registration Statement (as defined in Rule 158) with respect to each sale of Securities. (e) The Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise. The Company will furnish you with copies of any such amendment or supplement or other documents, other than documents filed pursuant to the 1934 Act, proposed to be filed a reasonable time in advance of filing, and will furnish you with copies of documents filed pursuant to the 1934 Act promptly upon the filing thereof. (f) The Company will notify you immediately (i) of the filing and effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of initiation of any proceedings for that purpose, or (vi) of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or threat of initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order or suspension of qualification and, if any stop order or suspension of qualification is issued, to obtain the lifting thereof at the earliest possible moment. (g) The Company will deliver to you as many signed and conformed copies of the registration statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as you may reasonably request. The Company will furnish to you as many copies of the Prospectus (as amended or supplemented) as you shall reasonably request so long as you are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Securities. (h) The Company will endeavor, in cooperation with you, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Agents may designate, and will maintain such qualifications in effect for as long as may be required for the -10- distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided. (i) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. (j) Between the date of any Terms Agreement which you are a party and the Settlement Date with respect to such Terms Agreement, the Company will not, without the prior consent of each Agent that is a party to such Terms Agreement, offer or sell in the United States, or enter into any agreement to sell in the United States, any debt securities of the Company with terms substantially similar to those of the Securities which are the subject of such Terms Agreement (other than the Securities), except as may otherwise be provided in any such Terms Agreement. Between (i) the date the Company accepts an offer by any Agent to purchase Securities as principal not pursuant to a Terms Agreement and confirms in writing its agreement to comply with this paragraph 3(j) with respect to such Securities, and (ii) the Settlement Date with respect to such Securities, the Company will not, without the prior consent of such Agent, offer or sell in the United States, or enter into any agreement to sell in the United States, any debt securities of the Company with terms substantially similar to those of the Securities purchased by such Agent as principal (other than the Securities), except as may otherwise be provided in the Company's written confirmation to such Agent. (k) The Company will suspend solicitation of purchases of the Securities, and will advise the Agents of such suspension, upon receiving notice from a nationally recognized statistical rating organization of the downgrading of any rating assigned to any debt securities of the Company or of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating. SECTION 4. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement (whether or not any sale of Securities is consummated), including: (i) the preparation and filing of the Registration Statement and Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Securities, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel, (iv) the qualification of the Securities under securities or Blue Sky laws in accordance with the provisions of Section 3(i), including filing fees and the reasonable fees and disbursements of counsel in connection therewith and in -11- connection with the preparation of any Blue Sky Memorandum, any Blue Sky Survey and any Legal Investment Survey, (v) the printing and delivery to you in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto, and of the Prospectus and any amendments or supplements thereto, (vi) the printing and delivery to you of copies of the Indentures and any Blue Sky Memorandum, Blue Sky Survey and any Legal Investment Survey, and (vii) any fees charged by rating agencies for the rating of the Securities. The Company shall reimburse you for the reasonable fees and disbursements of your counsel. The Company shall also reimburse you for any advertising and other out-of-pocket expenses incurred with the prior approval of the Company. SECTION 5. Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent's obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent's or any other purchaser's obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent: (a) At Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received: (1) The opinion or opinions, dated as of such time, of Dorsey & Whitney P.L.L.P., counsel to the Company, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. (ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement. -12- (iii) First Bank National Association has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement. (iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and any applicable Delayed Delivery Contract has been duly authorized, executed and delivered by the Company. (v) Each of the [Senior Note Indenture] and the [Subordinated Note Indenture] has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the [Senior Note Trustee] or the [Subordinated Note Trustee], as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor in accordance with this Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vii) The statements in the Prospectus under the captions "Description of Debt Securities" and "Plan of Distribution" and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate summaries of such provisions. (viii) The statements in the Prospectus under the caption "United States Taxation," to the extent that they constitute matters of -13- law or legal conclusions, have been reviewed by such counsel and are correct. (ix) The Indentures are qualified under the 1939 Act. (x) The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (xi) At the time the Registration Statement became effective, and at the date hereof, the Registration Statement and the Prospectus and each document incorporated by reference therein (other than the financial statements, schedules and other financial data included therein and the Statements of Eligibility and Qualification of the Trustee on Form T-l filed as an exhibit thereto, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, schedules and other financial data included therein, as to which no opinion need be rendered) the Registration Statement and the Prospectus, at the time the Registration Statement became effective, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented at Closing Time or the Settlement Date, as the case may be, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (xii) No consent, approval, authorization, or order of any court or governmental authority or agency is required in connection with the sale of the Securities, except such as may be required under the 1933 Act or the rules and regulations thereunder, all of which have been obtained, or such as may be required under state securities laws. -14- In rendering such opinion, such counsel may rely as to matters of New York law upon the opinion of counsel to the Agents being delivered pursuant to subparagraph (3). (2) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that: (i) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of the business requires such qualification and where the failure so to qualify would have a material adverse effect on the Company and its subsidiaries, taken as a whole. (ii) First Bank National Association is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of the business requires such qualification and where the failure so to qualify would have a material adverse effect on the Company and its subsidiaries, taken as a whole. (iii) There are no legal or governmental proceedings pending or to the best of such counsel's knowledge, threatened which are required to be disclosed in the Registration Statement, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their property is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered individually or in the aggregate, not material. (iv) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. (v) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), any applicable Delayed Delivery -15- Contract, the Securities and the Indentures and the consummation of the transactions contemplated herein and therein will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel to be applicable to the Company nor will such action result in any violation of the provisions of the charter or by-laws of the Company. (3) The opinion or opinions of your counsel, relating to the incorporation of the Company, the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement and the Prospectus. In rendering such opinion, such counsel may rely as to matters of Minnesota law upon the opinions of Dorsey & Whitney P.L.L.P. and the General Counsel of the Company being delivered pursuant to subparagraphs (l) and (2) respectively. (b) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any nationally recognized statistical rating organization, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (c) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm -16- of independent public accountants), a letter, dated as of the Closing Time or such Settlement Date, in form and substance satisfactory to you, to the effect that: (i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the Regulations. (ii) In their opinion the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations; (iii) They have made a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the American Institute of Certified Public Accountants, as indicated in their report or reports attached to such letter; (iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations or that the unaudited financial statements included in the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the Prospectus; (v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that: (A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date -17- not more than five days prior to the date of delivery of such letter, there was any change in the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in allowance for credit loss or consolidated common shareholders' equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or (B) for the period from the date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net income, consolidated net interest income before the provision for credit losses, consolidated net interest income after the provision for loan losses or in the ratio of earnings to fixed charges, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter. (vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. (d) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the -18- representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, other than as set forth in the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis the effect of which is such as to make it, in your judgment, impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the American Stock Exchange or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable and (iv) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating, and (v) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. -19- If any condition specified in this Section shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(d) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect. SECTION 6. Additional Covenants of the Company. The Company covenants and agrees that: (a) Each acceptance by it of an offer for the purchase of Securities, and each sale of Securities to you pursuant to a Terms Agreement to which you are a party, shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement and in any certificate theretofore delivered to you pursuant hereto are true and correct at the time of such acceptance or sale, as the case may be, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his agent, or you, as the case may be, of the relevant Securities as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended and supplemented to each such time). (b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement relating solely to the terms of the Securities or a change in the principal amount of Securities remaining to be sold or similar changes) or there is filed with the Commission any document incorporated by reference into the Prospectus, or if the Company sells Securities to you pursuant to a Terms Agreement and such Terms Agreement so provides, the Company shall, if so requested by you or if so required by such Terms Agreement, furnish or cause to be furnished to you (or, if such certificate is being furnished pursuant to a Terms Agreement, to the Agent or Agents party thereto) forthwith a certificate in form satisfactory to you (or, if such certificate is being furnished pursuant to a Terms Agreement, to the Agent or Agents party thereto) to the effect that the statements contained in the certificates referred to in Section 5(b) hereof which were last furnished to you are true and correct at the time of such amendment or supplement or filing or sale, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, certificates of the same tenor as the certificates -20- referred to in said Section 5(b), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificates; (c) Each time that the Registration Statement or the Prospectus shall be amended or supplemented or there is filed with the Commission any document incorporated by reference into the Prospectus (other than by an amendment or supplement relating solely to the terms of the Securities or a change in the principal amount of Securities remaining to be sold or similar changes), or if the Company sells Securities to you pursuant to a Terms Agreement and such Terms Agreement so provides, the Company shall, if so requested by you or if so required by such Terms Agreement, furnish or cause to be furnished forthwith to you (or, if such certificate is being furnished pursuant to a Terms Agreement, to the Agent or Agents party thereto) and the counsel for the Agents written opinions of Dorsey & Whitney P.L.L.P., counsel to the Company, or other counsel satisfactory to the Agents receiving such opinion, and the General Counsel of the Company, each dated the date of delivery of such opinion, in form satisfactory to the Agents receiving such opinion, of the same tenor as the opinions referred to in Sections 5(a)(1) and 5(a)(2), respectively, hereof but modified, as necessary, to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinions or, in lieu of such opinions, counsel last furnishing each such opinion to the Agents shall furnish to the Agent or Agents entitled to receive such opinion a letter to the effect that such Agent or Agents may rely on such last opinion to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance); and (d) Each time that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information or there is filed with the Commission any document incorporated by reference into the Prospectus which contains additional financial information, or if the Company sells Securities to you pursuant to a Terms Agreement and such Terms Agreement so provides, the Company shall, if so requested by you or if so required by such Terms Agreement, cause Ernst & Young LLP (or another nationally recognized firm of independent public accountants) forthwith to furnish you (or, if such letter is being furnished pursuant to a Terms Agreement, to the Agent or Agents party thereto) a letter, dated the date of filing of such amendment, supplement or document with the Commission, or the date of such sale, as the case may be, in form satisfactory to the Agent or Agents entitled to receive such letter, of the same tenor as the portions of the letter referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to relate to the Registration Statement and Prospectus, as amended and supplemented to the date of such letter, and of the same general tenor as the portions of the letter referred to in clauses (iii), (iv), (v) and (vi) of said Section 5(c) with such changes as -21- may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, Ernst & Young LLP may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless any other information included therein of an accounting, financial or statistical nature is of such a nature that, in the reasonable judgment of the Agent or Agents entitled to receive such letter, such letter should cover such other information. SECTION 7. Indemnification. (a) The Company agrees to indemnify and hold harmless you and each person, if any, who controls you within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission was made in reliance upon and in conformity with written information relating to you furnished to the Company by you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement); (ii) against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to you furnished by you as aforesaid) if such settlement is effected with the written consent of the Company; and -22- (iii) against any and all expense whatsoever (including the fees and disbursements of counsel chosen by you), as incurred, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to you furnished by you as aforesaid), to the extent that any such expense is not paid under (i) or (ii) above. (b) You agree to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement) in reliance upon and in conformity with written information relating to you furnished to the Company by you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement). (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder but failure to so notify an indemnifying party shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; provided, however, that when more than one of the Agents is an indemnified party each such Agent shall be entitled to separate counsel (in addition to any local counsel) in each such jurisdiction to the extent such Agent may have interests conflicting with those of the other Agent or Agents because of the participation of one Agent in a transaction hereunder in which the other Agent or Agents did not participate. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. -23- SECTION 8. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 7 is for any reason held to be unavailable to you in accordance with its terms, the Company and you shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and you with respect to Securities sold to or through you in such proportions as is appropriate to reflect the relative benefits received by the Company on the one hand and you on the other. The relative benefits received by the Company on the one hand and you on the other shall be deemed to be in such proportion represented by the percentage that the total commissions and underwriting discounts received by you to the date of such liability bears to the total sales price (before deducting expenses) received by the Company from the sale of Securities made to or through you to the date of such liability, and the Company is responsible for the balance. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if you failed to give the notice required under Section 7(c), then the Company and you shall contribute to such aggregate losses, liabilities, claims, damages and expenses in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and you in connection with the statements or omissions which resulted in such liabilities, claims, damages and expenses, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or you and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and you agree that it would not be just and equitable if contributions pursuant to this Section 8 were determined pro rata (even if the Agents were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8. Notwithstanding the provisions of this Section 8, you shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities referred to in the second sentence of this Section that were offered and sold to the public through you exceeds the amount of any damages that you have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled under this Section 8 to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls you within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as you, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the -24- Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. SECTION 9. Status of the Agents. In acting under this Agreement and in connection with the sale of any Securities by the Company (other than Securities sold to you as principal), you are acting solely as agent of the Company and do not assume any obligation towards or relationship of agency or trust with any purchaser of Securities. You will make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Securities from the Company has been solicited by you and accepted by the Company but you shall not have any liability to the Company in the event any such purchase is not consummated for any reason. If the Company shall default in its obligations to deliver Securities to a purchaser whose offer it has accepted, the Company shall hold you harmless against any loss, claim, damage or liability arising from or as a result of such default and shall, in particular, pay to you the commission you would have received had such sale been consummated. SECTION 10. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and indemnification and contribution agreements contained in this Agreement or any Terms Agreement or other agreement to purchase Securities as principal to which you are a party, or contained in certificates of officers of the Company submitted pursuant hereto or thereto, shall remain operative and in full force and effect, regardless of any termination of this Agreement or any such Terms Agreement or any such other agreement, or any investigation made by or on behalf of the Agents or any controlling person referred to in Section 7, or by or on behalf of the Company or any controlling person referred to in Section 7, and shall survive each delivery of and payment for any of the Securities. SECTION 11. Termination. This Agreement may be terminated with respect to the participation of any party hereto for any reason at any time by such party upon the giving of written notice of such termination to the other parties hereto. Any Terms Agreement or other agreement to purchase securities as principal to which you are a party shall be subject to termination in your absolute discretion on the terms set forth or incorporated by reference therein, but the termination of this Agreement shall not require termination of any such Terms Agreement or such other agreement. In the event of any such termination of this Agreement by any other party hereto, no other party will have any liability to such party and such party will not have any liability to any other party hereto, except that (i) you shall be entitled to any commissions earned in accordance with the third paragraph of Section 2(a) hereof, (ii) if at the time of termination (A) you shall own any of the Securities with the intention of reselling them or (B) an offer to purchase any of the Securities has been -25- accepted by the Company but the time of delivery to the purchaser or his agent of the Securities or Securities relating thereto has not occurred, the covenants set forth in Sections 3, 5 and 6 hereof shall remain in effect until such Securities are so resold or delivered, as the case may be, and (iii) the covenant set forth in Section 3(d) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections 9, 10, 13 and 14 hereof shall remain in effect. SECTION 12. Notices. All notices and other communications hereunder shall be in writing and effective upon receipt and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to [Agent] shall be directed to them at [Address] Attention: ___________ (telefax number: ________). Notices to the Company shall be directed to it at First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4302, attention of the Treasurer. SECTION 13. Parties. This Agreement and any Terms Agreement to which you are a party shall inure to the benefit of and be binding upon you (or, in the case of a Terms Agreement, the Agent or Agents which are a party thereto) and the Company and their respective successors and, to the extent provided in Section 5 hereof, shall inure to the benefit of any person who has agreed to purchase Securities from the Company pursuant to a purchase offer solicited by you. Nothing expressed or mentioned in this Agreement or any Terms Agreement to which you are a party is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and, to the extent provided in Section 5 hereof, any person who has agreed to purchase Securities from the Company pursuant to a purchase offer solicited by you, and the controlling persons and officers and directors referred to in Sections 7 and 8 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any such Terms Agreement or any provision herein or therein contained. This Agreement and any such Terms Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors and, to the extent provided in Section 5 hereof, any person who has agreed to purchase Securities from the Company pursuant to a purchase offer solicited by you, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities shall be deemed to be a successor by reason merely of such purchase. SECTION 14. Governing Law. This Agreement and the rights and obligations of the parties created hereby shall be governed by the laws of the State of New York. -26- If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between you and the Company in accordance with its terms. Very truly yours, FIRST BANK SYSTEM, INC. By___________________________________ Its_____________________ CONFIRMED AND ACCEPTED in New York, New York as of the date first above written: [AGENT] By _____________________________ Its _________________________ -27- SCHEDULE A Term Commission Rates ---- ---------------- EXHIBIT A First Bank System, Inc. (A Delaware corporation) [Medium-Term Notes] TERMS AGREEMENT ____________, 19__ ____________________________ Attention: ______________________________________________________________ Re: Distribution Agreement dated ________________ , 199__ The undersigned agrees to purchase the following principal amount of Securities: $___________________ Initial Public Offering Price: [Initial]* Interest Rate: [Index Maturity:]* [Interest Rate Basis:]* [Maximum Interest Rate:]* [Minimum Interest Rate:]* [Interest Determination Dates:]* [Interest Reset Dates:]* [Interest Payment Dates:]* [Maturity Date:] [Spread:]* [Spread Multiplier:]* [Alternate Rate Event Spread:]* [Alternate Rate Event Spread Multiplier:]* [Interest Period:]* [Regular Record Date (if other A-1 than the fifteenth calendar day preceding each Interest Payment Date):]* Purchase Price: % Settlement Date and Time: Redemption Provisions, if any: [Currency of denomination:]** [Denominations:]** [Currency of payment:]** [Original Issue Discount Note:] [Other provisions:] The provisions of Sections 1, 2(c) and 2(d), 3, 4, 7, 8 and 10 through 14 of the Distribution Agreement and the related definitions are incorporated by reference herein and shall be deemed to have the same force and effect as if set forth in full herein. Exceptions, if any, to Section 3(j) of the Distribution Agreement: [Documents to be delivered: The following documents referred to in the Distribution Agreement shall be delivered: [(1) The certificate referred to in Sections 5(b) and 6(b);] [(2) The opinions referred to in Sections 5(a)(1), 5(a)(2) [,5(a)(3)] and 6(c);] [(3) The accountants' letter referred to in Sections 5(c) and 6(d).]] ____________ * Applicable to Floating Rate Notes only. ** Applicable to Foreign Currency Notes Only. [AGENT] By___________________________________ Its_______________________________ Accepted: FIRST BANK SYSTEM, INC. By____________________________ [Title] A-2 EXHIBIT B (Three copies of this Delayed Delivery Contract should be signed and returned to the address shown below so as to arrive not later than ______:00 A.M., New York time, on __________________________, 19_____.) DELAYED DELIVERY CONTRACT ------------------------- [Insert date of offering of Securities to be sold] FIRST BANK SYSTEM, INC. c/o [Insert name and address of Agents] Attention: Gentlemen: The undersigned hereby agrees to purchase from First Bank System, Inc., a Delaware corporation (the "Company"), and the Company agrees to sell to the undersigned, as of the date hereof, for delivery on___________________________ (the "Delivery Date"), $________________ principal amount of the Company's ______________________________________ (hereinafter called "Securities"), offered by the Company's Prospectus, dated _________________________, 19__, as supplemented by a Prospectus Supplement, dated _______________, 19__ and a Pricing Supplement, dated __________________________, 19__, relating thereto, receipt of a copy of which is hereby acknowledged, at ________% of the principal amount thereof plus accrued interest, if any, and on the further terms and conditions set forth in this Delayed Delivery Contract ("Contract"). Payment for the Securities which the undersigned has agreed to purchase for delivery on the Delivery Date shall be made to the Company or its order in immediately available funds in Minneapolis, Minnesota, at 10:00 A.M., Minnesota time, at the offices of the Company, First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402, on the Delivery Date upon delivery to the undersigned of the Securities to be purchased by the undersigned in definitive form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. B-1 It is expressly agreed that the provisions for delayed delivery and payment are for the sole convenience of the undersigned; that the purchase hereunder of Securities is to be regarded in all respects as a purchase as of the date of this Contract; that the obligation of the Company to make delivery of and accept payment for, and the obligation of the undersigned to take delivery of and make payment for, Securities on the Delivery Date shall be subject only to the condition that investment in the Securities shall not at the Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject. The undersigned represents that its investment in such Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which govern such investment. This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. This Contract may be executed by either of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. This Contract shall be governed by and construed in accordance with the laws of the State of New York. It is understood that the acceptance of any such Contract (including this Contract) is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and B-2 mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered. Yours very truly, ___________________________________ (Name of Buyer) By_________________________________ ___________________________________ (Name and Title of Signatory) ___________________________________ ___________________________________ (Address of Buyer) Accepted as of the date first above written FIRST BANK SYSTEM, INC. By ___________________________ ______________________________ (Title) B-3 EX-5.1 4 OPINION OF DORSEY & WHITNEY [DORSEY & WHITNEY P.L.L.P. LETTERHEAD] EXHIBIT 5.1 First Bank System, Inc. First Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402-4302 Ladies and Gentlemen: We have acted as counsel to First Bank System, Inc., a Delaware corporation (the "Company"), in connection with a Registration Statement on Form S-3 (the "Registration Statement") relating to the sale by the Company from time to time of $1,000,000,000 aggregate principal amount of debt securities (the "Debt Securities") and warrants to purchase Debt Securities (the "Warrants" and, together with the Debt Securities, the "Securities"). We have examined such documents, including resolutions of the Board of Directors adopted on February 15, 1995 (the "Financing Resolution"), and have reviewed such questions of law, as we have considered necessary and appropriate for the purposes of our opinion set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinion, we have relied upon certificates of officers of the Company and of public officials. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Indentures incorporated by reference as Exhibits 4.1 and 4.2 to the Registration Statement. DORSEY & WHITNEY P.L.L.P. First Bank System, Inc. April 10, 1995 Page 2 Based on the foregoing, we are of the opinion that: 1. When the specific terms of a series of Debt Securities have been specified in a Supplemental Indenture or an Officer's Certificate, which has been executed and delivered to the Trustee by an Authorized Officer (as defined in the Financing Resolution), such series of Debt Securities will have been duly authorized by all requisite corporate action and, when executed and authenticated as specified in the Indentures and delivered against payment therefor pursuant to the terms described in the Registration Statement and as specified by an Authorized Officer, or when issued upon valid exercise of Warrants that have been duly authorized by all requisite corporate action and validly issued, will constitute valid and binding obligations of the Company, enforceable in accordance with the terms of such series. 2. When the specific terms of a series of Warrants have been specified in a Warrant Agreement executed and delivered by an Authorized Officer in substantially the form incorporated by reference as Exhibit 4.5 to the Registration Statement, the Warrants established in such Warrant Agreement will have been duly authorized by all requisite corporate action and, when executed and authenticated as specified in such Warrant Agreement and delivered against payment therefor pursuant to the terms described in the Registration Statement and as specified by an Authorized Officer, will constitute valid and binding obligations of the Company, enforceable in accordance with the terms of such Warrants. The opinions set forth above are subject to the following qualifications and exceptions: (a) Our opinions are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar law of general application affecting creditors' rights. (b) Our opinions are subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law). (c) In rendering the opinions set forth above, we have assumed that, at the time of the authentication and delivery of a series of Securities, the Financing Resolution referred to above will not have been modified or rescinded, there will not have occurred any change in the law affecting the DORSEY & WHITNEY P.L.L.P. First Bank System, Inc. April 10, 1995 Page 3 authorization, execution, delivery, validity or enforceability of the Securities, the Registration Statement will have been declared effective by the Commission and will continue to be effective, none of the particular terms of a series of Securities will violate any applicable law and neither the issuance and sale thereof nor the compliance by the Company with the terms thereof will result in a violation of any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction over the Company. (d) As of the date of this opinion, a judgment for money in an action based on a Debt Security denominated in a foreign currency or currency unit in a federal or State court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion into United States dollars of the foreign currency or currency unit in which a particular Debt Security is denominated will depend upon various factors, including which court renders the judgment. Under Section 27 of the New York Judiciary Law, a state court in the State of New York rendering a judgment on a Debt Security would be required to render such judgment in the foreign currency or currency unit in which such Debt Security is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment. (e) Minnesota Statutes (S) 290.371, Subd. 4, provides that any corporation required to file a Notice of Business Activities Report does not have a cause of action upon which it may bring suit under Minnesota law unless the corporation has filed a Notice of Business Activities Report and provides that the use of the courts of the State of Minnesota for all contracts executed and all causes of action that arose before the end of any period for which a corporation failed to file a required report is precluded. Insofar as our opinion may relate to the valid, binding and enforceable character of any agreement under Minnesota law or in a Minnesota court, we have assumed that any party seeking to enforce such agreement has at all times been, and will continue at all times to be, exempt from the requirement of filing a Notice of Business Activities Report or, if not exempt, has duly filed, and will continue to duly file, all Notice of Business Activities Reports. Our opinions expressed above are limited to the laws of the States of Minnesota and New York, the Delaware General Corporation Law and the federal laws of the United States of America. DORSEY & WHITNEY P.L.L.P. First Bank System, Inc. April 10, 1995 Page 4 We hereby consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Validity of Securities" contained in the Prospectus included therein. Dated: April 10, 1995 Very truly yours, /s/ DORSEY & WHITNEY P.L.L.P. CFS EX-12.1 5 COMPUTATION RATIO/EARNINGS EXHIBIT 12.1 Computation of Ratio of Earnings to Fixed Charges
Year Ended December 31 ------------------------------------------------------------ (Dollars in Thousands) 1994 1993 1992 1991 1990 - -------------------------------------------------------------------------------------------------------------------------------- Earnings 1. Net income before cumulative effect $ 419,800 298,000 154,500 207,100 57,300 2. Applicable income taxes 256,900 178,800 78,600 25,900 8,500 ------------------------------------------------------------ 3. Income before taxes (1 + 2) $ 676,700 476,800 233,100 233,000 65,800 ============================================================ 4. Fixed charges: a. Interest expense excluding interest on deposits $ 179,200 105,200 117,500 182,400 361,800 b. Portion of rents representative of interest and amortization of debt expense 26,400 31,400 34,200 31,700 34,200 ------------------------------------------------------------ c. Fixed charges excluding interest on deposits (4a + 4b) 205,600 136,600 151,700 214,100 396,000 d. Interest on deposits 373,100 423,700 568,700 872,800 1,191,400 ------------------------------------------------------------ e. Fixed charges including interest on deposits (4c + 4d) $ 578,700 560,300 720,400 1,086,900 1,587,400 ============================================================ 5. Amortization of interest capitalized $ 4,800 4,900 300 300 300 6. Earnings excluding interest on deposits (3 + 4c + 5) 887,100 618,300 385,100 447,400 462,100 7. Earnings including interest on deposits (3 + 4e + 5) 1,260,200 1,042,000 953,800 1,320,200 1,653,500 8. Fixed charges excluding interest on deposits (4c) 205,600 136,600 151,700 214,100 396,000 9. Fixed charges including interest on deposits (4e) 578,700 560,300 720,400 1,086,900 1,587,400 Ratio of Earnings to Fixed Charges 10. Excluding interest on deposits (line 6/line 8) 4.31 4.53 2.54 2.09 1.17 11. Including interest on deposits (line 7/line 9) 2.18 1.86 1.32 1.21 1.04 ------------------------------------------------------------
EX-23.1 6 CONSENT ERNST & YOUNG LLP Exhibit 23.1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3 No. 33-00000) and related Prospectus of First Bank System, Inc. for the registration of $1,000,000,000 of debt securities and warrants to purchase debt securities and to the incorporation by reference therein of our report dated January 24, 1995, with respect to the consolidated financial statements of First Bank System, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 1994 and our report dated January 24, 1995 with respect to the supplemental consolidated financial statements of First Bank System, Inc. included in its Current Report on Form 8-K dated March 3, 1995, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Minneapolis, Minnesota April 10, 1995 EX-24.1 7 POWER OF ATTORNEY Exhibit 24.1 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Michael J. O'Rourke, Richard A. Zona and David J. Parrin, and each of them, his or her true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign a Registration Statement on Form S-3 of First Bank System, Inc., and any and all amendments thereto, including post-effective amendments, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in- fact and agents, each acting alone, or the substitutes for such attorneys-in- fact and agents, may lawfully do or cause to be done by virtue hereof.
Signature Title Date --------- ----- ---- Chairman, President, - ---------------------------------- Chief Executive Officer John F. Grundhofer and Director Vice Chairman and - ---------------------------------- Chief Financial Officer Richard A. Zona (principal financial officer) Senior Vice President - ---------------------------------- and Controller David J. Parrin (principal accounting offier) /s/ Coleman Bloomfield Director March 20, 1995 __________________________________ Coleman Bloomfield /s/ Roger L. Hale Director March 20, 1995 - ---------------------------------- Roger L. Hale /s/ Delbert W. Johnson Director March 20, 1995 - ---------------------------------- Delbert W. Johnson /s/ Norman M. Jones Director March 20, 1995 - ---------------------------------- Norman M. Jones
Signature Title Date --------- ----- ---- /s/ John H. Kareken Director March 20, 1995 - -------------------------- John H. Kareken Director - -------------------------- Richard L. Knowlton Director - -------------------------- Kenneth A. Macke /s/ Marilyn C. Nelson Director March 20, 1995 - -------------------------- Marilyn C. Nelson /s/ Will F. Nicholson, Jr. Director March 20, 1995 - -------------------------- Will F. Nicholson, Jr. /s/ Nicholas R. Petry Director March 20, 1995 - -------------------------- Nicholas R. Petry /s/ Edward J. Phillips Director March 20, 1995 - -------------------------- Edward J. Phillips /s/ James J. Renier Director March 20, 1995 - -------------------------- James J. Renier /s/ S. Walter Richey Director March 20, 1995 - -------------------------- S. Walter Richey /s/ Richard L. Robinson Director March 20, 1995 - -------------------------- Richard L. Robinson /s/ Richard L. Schall Director March 20, 1995 - -------------------------- Richard L. Schall /s/ Lyle E. Schroeder Director March 20, 1995 - ----------------------- Lyle E. Schroeder EX-25.1 8 FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an application to determine eligibility of a Trustee pursuant to Section 305(b)(2) ________________________ CITIBANK, N.A. (Exact name of trustee as specified in its charter) 399 Park Avenue, New York, New York 13-5266470 (Address of principal executive offices) (I.R.S. employer identification no.) 10043 (Zip Code) _______________________ First Bank System, Inc. (Exact name of obligor as specified in its charter) Delaware 41-0255900 (State or other jurisdiction of (I.R.S. employer identification no.) incorporation or organization) 601 Second Avenue South Minneapolis, MN 55402 (Address of principal executive offices) (Zip Code) The "Securities" (Title of the indenture securities) 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, N.Y. Federal Deposit Insurance Corporation Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. 2. Affiliations with Obligor. If the obligor is an affiliate of the Trustee, describe each such affiliation. None. 16. List of Exhibits ---------------- Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983). Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519). Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988). Exhibit 5 - Not applicable. Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227). Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of December 31, 1994 - attached). Exhibit 8 - Not applicable. Exhibit 9 - Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 7th day of April, 1995. CITIBANK, N.A. By /s/Florence Mills ----------------- Florence Mills Senior Trust Officer Charter No. 1461 Comptroller of the Currency Northeastern District REPORT OF CONDITION CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF Citibank, N. A. of New York in the State of New York, at the close of business on December 31, 1994, published in response to call made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of the Currency Northeastern District. ASSETS Thousands of dollars Cash and balances due from de- pository institutions: Noninterest-bearing balances and currency and coin..........$ 6,759,000 Interest-bearing balances....... 7,201,000 Securities: Held-to-maturity securities..... 3,918,000 Available-for-sale securities... 11,963,000 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agree- ment subsidiaries, and in IBFs: Federal funds sold............... 4,427,000 Securities purchased under agreements to resell............. 1,114,000 Loans and lease financing receiv- ables: Loans and leases, net of un- earned income......$128,902,000 LESS: Allowance for loan and lease losses......3,986,000 ------------ Loans and leases, net of un- earned income and allowance.... 124,916,000 Assets held in trading accounts... 35,573,000 Premises and fixed assets (includ- ing capitalized leases).......... 3,192,000 Other real estate owned........... 1,967,000 Investments in unconsolidated subsidiaries and associated com- panies........................... 998,000 Customers' liability to this bank on acceptances outstanding....... 1,420,000 Intangible assets................. 15,000 Other assets...................... 7,024,000 ------------ TOTAL ASSETS......................$210,487,000 ============ LIABILITIES Deposits: In domestic offices..............$ 33,727,000 Noninterest- bearing.............$12,509,000 Interest- bearing............. 21,218,000 ----------- In foreign offices. Edge and Agreement subsidiaries, and IBFs............................ 108,207,000 Noninterest- bearing..............7,180,000 Interest- bearing............101,027,000 ----------- Federal funds purchased and se- curities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: Federal funds purchased........ 8,044,000 Securities sold under agree- ments to repurchase............ 922,000 Trading liabilities............... 21,458,000 Other borrowed money: With original maturity of one year or less.................... 7,803,000 With original maturity of more than one year................... 3,895,000 Mortgage indebtedness and obli- gations under capitalized leases. 99,000 Bank's liability on acceptances executed and outstanding......... 1,440,000 Notes and debentures subordinated to deposits...................... 5,700,000 Other liabilities................. 7,226,000 ------------ TOTAL LIABILITIES.................$196,591,000 ------------ EQUITY CAPITAL Common stock......................$ 751,000 Surplus........................... 6,620,000 Undivided profits and capital re- serves........................... 6,945,000 Net unrealized holding gains (losses) on available-for-sale securities....................... 156,000 Cumulative foreign currency translation adjustments.......... (576,000) ------------ TOTAL EQUITY CAPITAL..............$ 13,896,000 ------------ TOTAL LIABILITIES AND EQUITY CAPITAL...................$210,487,000 ============ I, Roger W. Trupin, Controller of the above- named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. ROGER W. TRUPIN We, the undersigned directors, attest to the correctness of this Report of Condition. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. CHRISTOPHER J. STEFFEN ( PAUL J. COLLINS Directors PEI-YUAN CHIA ) -----END PRIVACY-ENHANCED MESSAGE-----