-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T9D49C2mjQWsl6MzEn01lVs0Zridh1cc9wxZOIGLUcYu11sPgdtEyPC4xWRWR64T AHCTMXcRyGGrcwpV/T4Ifg== 0001047469-99-017771.txt : 19990504 0001047469-99-017771.hdr.sgml : 19990504 ACCESSION NUMBER: 0001047469-99-017771 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990503 FILER: COMPANY DATA: COMPANY CONFORMED NAME: US BANCORP \DE\ 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-4/A SEC ACT: SEC FILE NUMBER: 333-75603 FILM NUMBER: 99608897 BUSINESS ADDRESS: STREET 1: FIRST BANK PL STREET 2: 601 SECOND AVE S CITY: MINNEAPOLIS STATE: MN ZIP: 55402-4302 BUSINESS PHONE: 6129731111 MAIL ADDRESS: STREET 1: 601 2ND AVENUE SOUTH-FIRST BANK PLACE STREET 2: 601 2ND AVENUE SOUTH-FIRST BANK PLACE CITY: MINNEAPOLIS STATE: MN ZIP: 55402-4302 FORMER COMPANY: FORMER CONFORMED NAME: FIRST BANK SYSTEM INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FIRST BANK STOCK CORP DATE OF NAME CHANGE: 19720317 S-4/A 1 FORM S-4/A AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1999 (NO. 333-75603) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ U.S. BANCORP (Exact name of registrant as specified in its charter) DELAWARE 6711 41-0255900 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of Incorporation or Classification Code Number) Identification Number) Organization)
U.S. BANCORP LEE R. MITAU, ESQ. U.S. BANK PLACE U.S. BANK PLACE 601 SECOND AVENUE SOUTH 601 SECOND AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55402-4302 MINNEAPOLIS, MINNESOTA 55402-4302 (612) 973-1111 (612) 973-1111 (Address, including zip code, and telephone number, (Name, address, including zip code, and telephone including area code, of registrant's principal executive number, including area code, of agent for service) offices)
------------------------ COPIES TO: ELIZABETH C. HINCK, ESQ. KURT L. KICKLIGHTER, ESQ. Dorsey & Whitney LLP FRANKLIN T. LLOYD, ESQ. 2200 South Sixth Street Higgs, Fletcher & Mack LLP Minneapolis, Minnesota 55402 401 West A Street, Suite 2600 (612) 340-8877 San Diego, California 92101 (619) 236-1551
Approximate date of commencement of proposed sale of the securities to the public: as soon as practicable after this Registration Statement becomes effective. If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: / / If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Securities Act"), check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: / / If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: / / ------------------------ 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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Delaware law, U.S. Bancorp will indemnify its directors and officers under certain circumstances against all expenses and liabilities incurred by them as a result of suits brought against them as such directors and officers. The indemnified directors and officers must act in good faith and in a manner they reasonably believe to be in the best interests of USB, and, with respect to any criminal action or proceeding, have no reasonable cause to believe their conduct was unlawful. USB will not indemnify directors and officers for expenses in respect of any matter as to which the indemnified directors and officers shall have been adjudged to be liable to USB, unless the court in which such action or suit was brought shall otherwise determine. USB may indemnify officers and directors only as authorized in each specific case upon a determination by the stockholders or disinterested directors that indemnification is proper because the indemnitee has met the applicable statutory standard of conduct. Article Ninth of the USB Restated Certificate of Incorporation, as amended, provides that a director shall not be liable to USB 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 USB 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 payment of dividends or unlawful stock repurchases or redemptions, or (iv) for any transaction from which the directors derived an improper personal benefit. The Bylaws of USB provide that the officers and directors of USB shall be indemnified to the full extent permitted by Delaware law, as amended from time to time. The Board of Directors has discretion to indemnify any employee of USB for actions arising by reason of the employee's employment with USB. USB shall pay expenses incurred by officers and directors in defending actions in advance of any final disposition if such officer or director agrees to repay such amounts if it is ultimately determined that he or she is not entitled to be indemnified under Delaware law. USB maintains a standard policy of officers' and directors' liability insurance. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (A) EXHIBITS. 2.1 Agreement and Plan of Reorganization dated February 18, 1999, as amended and restated as of March 26, 1999, by and between USB and BOC. (Included in Proxy Statement/Prospectus as Appendix A.) The registrant agrees to furnish a supplemental copy of omitted schedules to the Commission upon request. 4.1 Certificate of Designation and Terms of Term Participating Preferred Stock of U.S. Bancorp (Previously Filed). 4.2 Bylaws of USB, as amended. (Incorporated by reference to Exhibit 3.1 to the report on Form 10-Q for the quarter ended June 30, 1998.) 4.3 [Pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K, copies of instruments defining the rights of holders of long-term debt are not filed. U.S. Bancorp agrees to furnish a copy thereof to the Securities and Exchange Commission upon request.] 4.4 Warrant Agreement, dated as of October 2, 1995, between U.S. Bancorp and First Chicago Trust Company of New York, as Warrant Agent and Form of Warrant. (Incorporated by reference to Exhibits 4.18 and 4.19 to Registration Statement on Form S-3, File No. 33-61667.)
II-1 4.5 Warrant Agreement, dated as of November 20, 1990, between Metropolitan Financial Corporation and American Stock Transfer and Trust Company, as Warrant Agent; Supplemental Warrant Agreement, dated as of January 24, 1995, between U.S. Bancorp and American Stock Transfer and Trust Company, as Warrant Agent; and Form of Warrant. (Incorporated by reference to Exhibit 4E to report on Form 10-K for the year ended December 31, 1996.) 5.1 Opinion and consent of Dorsey & Whitney LLP as to legality of the securities being registered (Filed herewith). 8.1 Opinion and consent of Dorsey & Whitney LLP as to the correctness of the tax disclosure sections in this Form S-4 (Filed herewith). 12 Statement re: Computation of Ratio of Earnings to Fixed Charges. (Incorporated by reference to Exhibit 12 to report on Form 10-K for the year ended December 31, 1998.) 23.1 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1.) 23.2 Consent of Ernst & Young LLP (relating to financial statements of USB) (Previously Filed). 23.3 Consent of Deloitte & Touche, LLP (relating to financial statements of BOC) (Previously Filed). 24.1 Powers of Attorney (Previously Filed). 27 Financial Data Schedule. (Incorporated by reference to Exhibit 27 to report on Form 10-K for the year ended December 31, 1998.) 99.1 Form of Proxy for Annual Meeting of Shareholders of BOC (Previously Filed). 99.2 Articles of Incorporation of BOC (Previously Filed). 99.3 Bylaws of BOC, as amended (Previously Filed). 99.4 Opinion of Keefe, Bruyette & Woods, Inc. (Included as Appendix B to the Proxy Statement/ Prospectus.). (B) FINANCIAL STATEMENT SCHEDULES. None. (C) REPORTS, OPINIONS AND APPRAISALS. None.
ITEM 22. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price II-2 represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information 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. (b) 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 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. (c) 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 its articles, bylaws 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 such 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. (d) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (e) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. 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 on Form S-4 and has duly caused this Amendment No. 1 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 May 3, 1999. U.S. BANCORP By: /s/ JOHN F. GRUNDHOFER ----------------------------------------- John F. Grundhofer CHAIRMAN, PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE AND TITLE DATE - ------------------------------------------------ ---------------------- /s/ JOHN F. GRUNDHOFER May 3, 1999 -------------------------------------- John F. Grundhofer Chairman, President, Chief Executive Officer, and Director (principal executive officer) /s/ SUSAN E. LESTER May 3, 1999 -------------------------------------- Susan E. Lester Executive Vice President and Chief Financial Officer (principal financial officer) /s/ TERRANCE R. DOLAN May 3, 1999 -------------------------------------- Terrance R. Dolan Senior Vice President and Controller (principal accounting officer) * May 3, 1999 -------------------------------------- Linda L. Ahlers Director * May 3, 1999 -------------------------------------- Harry L. Bettis Director
II-4
SIGNATURE AND TITLE DATE - ------------------------------------------------ ---------------------- * May 3, 1999 -------------------------------------- Gerry B. Cameron Director * May 3, 1999 -------------------------------------- Carolyn Silva Chambers Director * May 3, 1999 -------------------------------------- Arthur D. Collins, Jr. Director * May 3, 1999 -------------------------------------- Peter H. Coors Director * May 3, 1999 -------------------------------------- Robert L. Dryden Director * May 3, 1999 -------------------------------------- Joshua Green III Director * May 3, 1999 -------------------------------------- Roger L. Hale Director * May 3, 1999 -------------------------------------- Delbert W. Johnson Director * May 3, 1999 -------------------------------------- Joel W. Johnson Director * May 3, 1999 -------------------------------------- Richard L. Knowlton Director
II-5
SIGNATURE AND TITLE DATE - ------------------------------------------------ ---------------------- * May 3, 1999 -------------------------------------- Jerry W. Levin Director * May 3, 1999 -------------------------------------- Edward J. Phillips Director * May 3, 1999 -------------------------------------- Paul A. Redmond Director * May 3, 1999 -------------------------------------- Richard G. Reiten Director * May 3, 1999 -------------------------------------- S. Walter Richey Director * May 3, 1999 -------------------------------------- Richard L. Schall Director * May 3, 1999 -------------------------------------- Walter Scott, Jr. Director * May 3, 1999 -------------------------------------- Warren R. Staley Director *By: /s/ SUSAN E. LESTER ----------------------------------- Susan E. Lester Pro se and as Attorney-in-Fact
II-6 EXHIBIT INDEX
PAGE ----- 2.1 Agreement and Plan of Reorganization dated February 18, 1999, as amended and restated as of March 26, 1999, by and between USB and BOC. (Included in Proxy Statement/ Prospectus as Appendix A.) The registrant agrees to furnish a supplemental copy of omitted schedules to the Commission upon request. 4.1 Certificate of Designation and Terms of Term Participating Preferred Stock of U.S. Bancorp (Previously Filed). 4.2 Bylaws of USB, as amended. (Incorporated by reference to Exhibit 3.1 to the report on Form 10-Q for the quarter ended June 30, 1998.) 4.3 [Pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K, copies of instruments defining the rights of holders of long-term debt are not filed. U.S. Bancorp agrees to furnish a copy thereof to the Securities and Exchange Commission upon request.] 4.4 Warrant Agreement, dated as of October 2, 1995, between U.S. Bancorp and First Chicago Trust Company of New York, as Warrant Agent and Form of Warrant. (Incorporated by reference to Exhibits 4.18 and 4.19 to Registration Statement on Form S-3, File No. 33-61667.) 4.5 Warrant Agreement, dated as of November 20, 1990, between Metropolitan Financial Corporation and American Stock Transfer and Trust Company, as Warrant Agent; Supplemental Warrant Agreement, dated as of January 24, 1995, between U.S. Bancorp and American Stock Transfer and Trust Company, as Warrant Agent; and Form of Warrant. (Incorporated by reference to Exhibit 4E to report on Form 10-K for the year ended December 31, 1996.) 5.1 Opinion and consent of Dorsey & Whitney LLP as to legality of the securities being registered (Filed herewith). 8.1 Opinion and consent of Dorsey & Whitney LLP as to the correctness of the tax disclosure sections in this Form S-4 (Filed herewith). 12 Statement re: Computation of Ratio of Earnings to Fixed Charges. (Incorporated by reference to Exhibit 12 to report on Form 10-K for the year ended December 31, 1998.) 23.1 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1.) 23.2 Consent of Ernst & Young LLP (relating to financial statements of USB) (Previously Filed). 23.3 Consent of Deloitte & Touche, LLP (relating to financial statements of BOC) (Previously Filed). 24.1 Powers of Attorney (Previously Filed). 27 Financial Data Schedule. (Incorporated by reference to Exhibit 27 to report on Form 10-K for the year ended December 31, 1998.) 99.1 Form of Proxy for Annual Meeting of Shareholders of BOC (Previously Filed). 99.2 Articles of Incorporation of BOC (Previously Filed). 99.3 Bylaws of BOC, as amended (Previously Filed). 99.4 Opinion of Keefe, Bruyette & Woods, Inc. (Included as Appendix B to the Proxy Statement/Prospectus.).
EX-5.1 2 EXHIBIT 5.1 Exhibit 5.1 [Opinion of Dorsey & Whitney LLP] U..S. Bancorp U.S. Bank Place 601 Second Avenue South Minneapolis, MN 55402-4302 Re: Registration Statement on Form S-4 File number 333-75603 Ladies and Gentlemen: We have acted as counsel to U.S. Bancorp, a Delaware corporation (the "Company"), in connection with a Registration Statement on Form S-4 (the "Registration Statement") relating to the issuance by the Company of (1) up to 9,000,000 shares (the "Shares") of Common Stock of the Company, par value $ 1.25 per share, and (2) 75,789 Warrants (the "Warrants"). The Shares and the Warrants are to be issued in connection with the merger of Bank of Commerce with and into a subsidiary of the Company (the "Merger"), as described in the Proxy Statement/Prospectus constituting part of the Registration Statement. We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials. We have also assumed that the Shares and the Warrants will be issued in connection with the Merger as described in the Registration Statement. Based on the foregoing, we are of the opinion that: (a) The Shares to be issued by the Company in the Merger have been duly authorized and, when issued in accordance with the terms of the Agreement (as defined in the Registration Statement), will be validly issued, fully paid and nonassessable. (b) The Warrants to be issued by the Company in the Merger have been duly authorized and, when issued in accordance with the terms of the Agreement, will be validly issued and enforceable by the holders thereof in accordance with the terms thereof. Our opinions expressed above are limited to the Delaware General Corporation Law. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the reference to our firm under the heading "LEGAL MATTERS" in the Prospectus constituting part of the Registration Statement. Dated: May 3, 1999 Very truly yours, /s/ Dorsey & Whitney LLP ECH EX-8.1 3 EXHIBIT 8.1 Exhibit 8.1 April 30, 1999 U.S. Bancorp U.S. Bank Place 601 Second Avenue South Minneapolis, MN 55402 Dear Ladies and Gentlemen: We have acted as your counsel in connection with the Registration Statement on Form S-4 filed on April 2, 1999 (the "Registration Statement") with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"). The Registration Statement relates to the proposed merger of Bank of Commerce with and into a wholly-owned subsidiary of U.S. Bancorp. This opinion is delivered in accordance with the requirements of Item 601(b)(8) of the Regulation S-K under the Securities Act. In connection with this opinion, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of the Registration Statement, the Proxy Statement/Prospectus included therein (the "Proxy Statement/Prospectus") and such other documents as we have deemed necessary or appropriate. We hereby confirm that the discussions in the Proxy Statement/Prospectus under the captions "SUMMARY -- Material Federal Income Tax Consequences" and "THE MERGER -- Material Federal Income Tax Consequences" are a fair and accurate summary of the matters addressed therein, based upon current law and the facts and assumptions stated or referred to therein. There can be no assurance that contrary positions may not be taken by the Internal Revenue Service. U.S. Bancorp April 30, 1999 Page 2 We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement and to the use of our name under the caption "THE MERGER - -- Material Federal Income Tax Consequences" in the Proxy Statement/Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act. Very truly yours, /s/ Dorsey & Whitney LLP -----END PRIVACY-ENHANCED MESSAGE-----