-----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, UtNYw/vnE1VBljB8YCf6mbemzJ5lDnQ+rCbuaJMW7R8IZ48UWEkD3bveTygBoBew +YPDPD94C5gBQXuXcKE3iQ== 0001047469-99-017819.txt : 19990505 0001047469-99-017819.hdr.sgml : 19990505 ACCESSION NUMBER: 0001047469-99-017819 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 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-3 SEC ACT: SEC FILE NUMBER: 333-77635 FILM NUMBER: 99609336 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-3 1 S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1999 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------------------- U.S. BANCORP (Exact name of registrant as specified in its charter) DELAWARE 41-0255900 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) U.S. BANK PLACE 601 SECOND AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55402-4302 (612) 973-1111 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) --------------------------- LEE R. MITAU, ESQ. COPIES TO: U.S. BANCORP ELIZABETH HINCK, ESQ. 601 SECOND AVENUE SOUTH DORSEY & WHITNEY, LLP MINNEAPOLIS, MINNESOTA, 55402-4302 2200 SOUTH SIXTH STREET, (612) 973-1111 MINNEAPOLIS, MINNESOTA 55402 (Name, address, including zip code and telephone number of agent for service) ---------------------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. ---------------------------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. / / If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /x/ If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED MAXIMUM MAXIMUM AGGREGATE AMOUNT OF TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION TO BE REGISTERED REGISTERED PER UNIT (1) PRICE(1) FEE Common Stock (par value $1.25 per share)........................ 378,945 shares $ 36.06 $ 13,664,786 $ 3,789.80
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 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. (1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c), based upon the average of high and low prices of the Common Stock on the New York Stock Exchange on April 28, 1999. - -------------------------------------------------------------------------------- 378,945 SHARES U.S. BANCORP COMMON STOCK $1.25 PAR VALUE This Prospectus relates to up to 378,945 shares of common stock of U.S. Bancorp. These shares may be issued from time to time upon exercise of outstanding Bank of Commerce "D" common stock purchase warrants that will be assumed by U.S. Bancorp as part of the acquisition of Bank of Commerce by U.S. Bancorp. Upon the closing of this acquisition (expected on July 1, 1999), the warrants will entitle the holders thereof to purchase shares of U.S. Bancorp common stock at an exercise price of $4.67 per share at any time after the closing of the acquisition and on or before July 25, 1999 (the expiration date of the warrants). Assuming the warrants are exercised in full, U.S. Bancorp will receive gross proceeds in the amount of approximately $1.8 million. U.S. Bancorp will pay all expenses with respect to the offering, which are expected to be approximately $20,000. The common stock of U.S. Bancorp is traded on the New York Stock Exchange, under the symbol "USB". The closing price for the common stock on April 30, 1999, as reported on the New York Stock Exchange Composite Tape was $ 37.0625. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED UNDER THIS PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS ACCURATE OR ADEQUATE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SECURITIES WE ARE OFFERING THROUGH THIS DOCUMENT ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY BANK OR NON-BANK SUBSIDIARY OF U.S. BANCORP, AND THEY ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY. TABLE OF CONTENTS PAGE ---- Information About U.S. Bancorp. . . . . . . . . . . . 2 Description of U.S. Bancorp Capital Stock . . . . . . 3 Use of Proceeds . . . . . . . . . . . . . . . . . . . 9 Description of Warrants and Plan of Distribution. . . 9 Legal Matters . . . . . . . . . . . . . . . . . . . . 10 Experts . . . . . . . . . . . . . . . . . . . . . . . 10 Where You Can Find More Information . . . . . . . . . 11 Forward Looking Statements. . . . . . . . . . . . . . 12 The date of this Prospectus is May 3, 1999 INFORMATION ABOUT U.S. BANCORP GENERAL U.S. Bancorp ("USB") is a regional, multi-state bank holding company headquartered in Minneapolis, Minnesota. USB was incorporated in Delaware in 1929 and owns 100 percent of the capital stock of each of its five banks, and eleven trust companies, having approximately 1,000 banking offices in 17 Midwestern and Western states. USB offers full-service brokerage services at approximately 100 offices through a wholly owned subsidiary. USB also has various nonbank subsidiaries engaged in financial services. The banks are engaged in general commercial banking business, principally in domestic markets. They range in size from less than $1.0 million to $49.0 billion in deposits and provide a wide variety of services to individuals, businesses, industry, institutional organizations, governmental entities, and other financial institutions. Depository services include checking accounts, savings accounts, and time certificate contracts. Ancillary services such as treasury management and receivable lockbox collection are provided for corporate customers. USB's bank and trust subsidiaries provide a full range of fiduciary activities for individuals, estates, foundations, business corporations, and charitable organizations. USB provides banking services through its subsidiary banks to both domestic and foreign customers and correspondent banks. These services include consumer banking, commercial lending, financing of import/export trade, foreign exchange, and investment services. USB, through its subsidiaries, also provides services in trust, commercial and agricultural finance, data processing, leasing, and brokerage services. U.S. Bancorp was formerly known as First Bank System, Inc. and is the organization created by the merger of First Bank System, Inc. with U.S. Bancorp of Portland, Oregon. USB is listed on the New York Stock Exchange under the ticker symbol "USB". GOVERNMENT POLICIES The operations of USB's various operating units are affected by state and federal legislative changes and by policies of various regulatory authorities, including those of the several states in which they operate, the United States and foreign governments. These policies include, for example, statutory maximum legal lending rates, domestic monetary policies of the Board of Governors of the Federal Reserve System (the "Federal Reserve Board"), United States fiscal policy, international currency regulations and monetary policies, and capital adequacy and liquidity constraints imposed by bank regulatory agencies. SUPERVISION AND REGULATION USB is a registered bank holding company under the Bank Holding Company Act of 1956 (the "Act") and is subject to the supervision of, and regulation by, the Federal Reserve Board. Under the Act, a bank holding company may engage in banking, managing or controlling banks, furnishing or performing services for banks it controls, and conducting activities that the Federal Reserve Board has determined to be closely related to banking. USB must obtain the prior approval of the Federal -2- Reserve Board before acquiring more than 5 percent of the outstanding shares of another bank or bank holding company, and must provide notice to, and in some situations obtain the prior approval of, the Federal Reserve Board in connection with the acquisition of more than 5 percent of the outstanding shares of a company engaged in a "bank-related" business. Under the Act, as amended by the Riegle-Neal Act, USB may acquire banks throughout the United States, subject only to state or federal deposit caps and state minimum-age requirements. Effective June 1, 1997, the Riegle-Neal Act authorized interstate branching by acquisition and consolidation in those states that had not opted out by that date. National banks are subject to the supervision of, and are examined by, the OCC. All subsidiary banks of USB are members of the FDIC, and as such, are subject to examination thereby. In practice, the primary federal regulator makes regular examinations of each subsidiary bank subject to its regulatory review or participates in joint examinations with other federal regulators. Areas subject to regulation by federal authorities include the allowance for credit losses, investments, loans, mergers, issuance of securities, payment of dividends, establishment of branches and other aspects of operations. ADDITIONAL INFORMATION You may obtain financial and other information relating to U.S. Bancorp, its directors and its executive officers, from our Annual Report on Form 10-K for the Year Ended December 31, 1998 and our 1999 Current Report on Form 8-K. You may obtain copies of these reports as indicated under "WHERE YOU CAN FIND MORE INFORMATION." DESCRIPTION OF U.S. BANCORP CAPITAL STOCK The following description of the capital stock of USB is not complete and subject to applicable Delaware law and to the provisions of USB's certificate of incorporation, as amended (the "USB's Certificate"). The following description is qualified by reference to (1) USB's certificate, (2) the certificate of designation for each series of preferred stock of USB, and (3) the agreements and documents referred to below under "Period Stock Purchase Rights and Risk Event Warrants" and "Term Participating Preferred stock." We incorporate by reference copies of these documents as exhibits to the registration statement of which this prospectus is a part. GENERAL The authorized capital stock of USB consists of 1,500,000,000 shares of common stock, par value $1.25 per share (the "USB Common Stock"), and 50,000,000 shares of preferred stock, par value $1.00 per share. Unless action is required by applicable laws or regulations, USB's Board of Directors has the power to adopt resolutions that (1) provide for the issuance of preferred stock in one or more series and (2) fix or limit the voting rights, designations, preferences, and relative, participating, optional or other special rights of such stock. This power is limited by applicable laws or regulations and may be delegated to a committee of USB's Board of Directors. As of March 31, 1999, 744,797,857 shares of USB Common Stock were issued (including 18,428,964 shares held in treasury), 60,090,134 shares were reserved for issuance under USB's employee and director stock purchase and option plans and USB's dividend reinvestment plan, 89,108 shares were reserved for issuance under outstanding warrants to purchase USB Common Stock and 45,000,000 shares -3- were reserved for issuance upon exercise of the Periodic Stock Purchase Rights and Risk Event Warrants described below. As of March 31, 1999, there were 56,539 shares of preferred stock of USB outstanding and 12,750 shares of preferred stock of USB reserved for issuance. PREFERRED STOCK USB presently has one series of preferred stock issued and outstanding and one series of preferred stock authorized for future issuance. As of March 31, 1999, USB had 56,539 shares of USB's Term Participating Preferred Stock (the "Term Participating Preferred Stock") and 12,750 shares of its Series 1990A Preferred Stock reserved for issuance. TERM PARTICIPATING PREFERRED STOCK GENERAL. USB has established a series of preferred stock, par value $1.00 per share, designated as the "Term Participating Preferred Stock." USB issued such shares in conjunction with the acquisition of Libra Investments, Inc. Holders of Term Participating Preferred Stock will possess rights to receive Common Stock pursuant to a Rights Agreement, dated as of January 4, 1999, between USB and U.S. Bank National Association, as Rights Agent. The number of shares of Term Participating Preferred Stock is 56,539. USB's Board of Directors may increase or decrease the number of shares, but not below the number then outstanding. Any shares transferred to USB will be available for reissuance as shares of this series. TERM. The shares of Term Participating Preferred Stock will remain until December 31, 2003, or the Early Termination Date, as defined in the Rights Agreement (the "Term Date"), unless earlier purchased by USB. From the Term Date, (1) each share of Term Participating Preferred Stock will represent only the right to receive the number of shares of Common Stock to which the holder of the attached Right would be entitled, assuming that such Right is validly exercised or deemed exercised and (2) the holders of the Term Participating Preferred Stock will have no other rights or claims against USB. DIVIDENDS. USB's Board of Directors may declare dividends on the Term Participating Preferred Stock, out of funds legally available therefor, on date occurring prior to the Term Date that dividends or other distributions (except those payable in Common Stock) are payable on or in respect of Common Stock and in an amount per share equal to the aggregate amount of dividends or other distributions (except those payable in Common Stock) that would be payable on such date to a holder of the Reference Package (as defined below). Dividends on each share will cumulate from the date such share is originally issued. However, any such share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates will not be entitled to receive the dividend payable on such dividend payment date. Holders of shares will not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends. The term "Reference Package" initially means ten shares of the Common Stock of USB. If USB, at any time after the close of business on the date of initial issuance of the Term Participating Preferred Stock, (1) declares or pays a dividend on any Common Stock payable in Common Stock, (2) subdivides (by any split, recapitalization or otherwise), any Common Stock or (3) combines any Common Stock into a smaller number of shares, then the Reference Package after such event shall be the Common Stock that -4- a holder of the Reference Package immediately prior to such event would hold thereafter as a result thereof. While any shares of Term Participating Preferred Stock are outstanding, USB must first pay the full cumulative dividends (including the dividend to be due upon payment of such dividend, distribution, redemption, purchase or other acquisition) on all such outstanding shares if USB (1) declares a dividend upon the Common Stock or upon any other stock ranking junior to the Term Participating Preferred Stock as to dividends or upon liquidation (except for dividends in such stock), or (2) acquires for any consideration (or pays or makes available any money for a sinking fund for the redemption of any shares of any such stock) any Common Stock or any other stock of USB ranking junior to or on a parity with the Term Participating Preferred Stock as to dividends or upon liquidation (except by conversion into or exchange for such stock). MERGER, ETC. If there is a transaction prior to the Term Date in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then each share of Term Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, that a holder of the Reference Package would be entitled to receive as a result of such transaction. LIQUIDATION PREFERENCE. If USB is liquidated prior to the Term Date, the holders of shares of Term Participating Preferred Stock will be entitled to receive an amount per share equal to the aggregate amount distributed or to be distributed prior to such date in connection with such liquidation to a holder of the Reference Package. This payment will be made before any distribution or payment is made to the holders of Common Stock or of any other stock of USB ranking junior to the Term Participating Preferred Stock upon liquidation. This payment also includes accrued dividends to such distribution or payment date, whether or not earned or declared. If such payment is made in full to all holders, or on or following the occurrence of the Term Date, the holders as such will have no right or claim to any of the remaining assets of USB. If the assets of USB available for distribution to the holders of shares of Term Participating Preferred Stock upon any liquidation of USB are insufficient to pay all amounts to which such holders are entitled pursuant to the preceding paragraph, no such distribution will be made on account of any shares of any other class or series of Preferred Stock ranking on a parity with the Term Participating Preferred Stock. However, USB may pay proportionate distributive amounts on account of the shares of Term Participating Preferred Stock, ratably in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such liquidation. Upon the liquidation of USB, the holders of shares of Term Participating Preferred Stock then outstanding will be entitled to be paid out of assets of USB available for distribution to its stockholders all amounts to which such holders are entitled pursuant to the preceding paragraph before any payment is made to the holders of Common Stock or any other stock of USB ranking junior upon liquidation to the Term Participating Preferred Stock. REDEMPTION. The shares of Term Participating Preferred Stock will not be redeemable. VOTING. The shares of Term Participating Preferred Stock shall not afford the holders thereof any right to vote or consent except as required by law. -5- TRANSFER. A share of Term Participating Preferred Stock may not be transferred by any person to whom such share is issued by USB except: (1) by an employee to such employee's spouse or children or trusts for their benefit or the benefit of such employee; (2) by the laws of descent; or (3) to USB; and, in each such case, without the receipt of value therefor. USB SERIES 1990A PREFERRED STOCK In connection with the sale by USB of 37,800,000 shares of USB Common Stock and accompanying periodic stock purchase rights and risk event warrants in a private placement in July 1990, USB may under certain circumstances be obligated to issue up to 12,750 shares of its Series 1990A Preferred Stock. See "--Common Stock--Periodic Stock Purchase Rights and Risk Event Warrants" below. The shares of Series 1990A Preferred Stock would, if issued, provide for a liquidation preference of $100,000 per share. The dividend rate would be adjusted quarterly and would be determined at the time of issuance. If, at the time of any annual meeting of USB Shareholders for the election of directors, the amount of accrued but unpaid dividends on the Series 1990A Preferred Stock were equal to at least six quarterly dividends on such series, then the number of directors of USB would be increased by one and the holders of such Series 1990A Preferred Stock, voting as a separate class, would be entitled to elect one additional director who would continue to serve the full term for which he or she would have been elected, notwithstanding the declaration or payment of any dividends on the Series 1990A Preferred Stock. The affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of USB Series 1990A Preferred Stock will be required for any amendment of the USB Certificate (including any certificate of designation or any similar document relating to any series of preferred stock of USB) which will adversely affect the powers, preferences, privileges or rights of the USB Series 1990A Preferred Stock. The affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of USB Series 1990A Preferred Stock will be required to issue, authorize, or increase the authorized amount of, or issue or authorize any obligation or security convertible into or evidencing a right to purchase, any additional class or series of stock ranking prior to the USB Series 1990A Preferred Stock as to dividends or upon liquidation. ADDITIONAL PROVISIONS The rights of holders of USB Common Stock will be subject to, and may be adversely affected by, the rights of holders of any preferred stock that may be issued in the future. Any such issuance may adversely affect the interests of holders of the USB Common Stock by (1) limiting the control that such holders may exert by exercise of their voting rights or (2) by subordinating their rights in liquidation to the rights of the holders of preferred stock of USB. In addition, the issuance of shares of preferred stock of USB may discourage takeover attempts and other changes in control of USB, by limiting the exercise of control by a person who has gained a substantial equity interest in USB has no current plans or agreements with respect to the issuance of any other shares of preferred stock, except as described above with respect to the Series 1990A Preferred Stock. -6- COMMON STOCK GENERAL. Each share of USB Common Stock is entitled to such dividends as may from time to time be declared by the USB Board of Directors from any funds legally available for dividends. USB may not declare any cash dividends on, or make any payment on account of, the purchase, redemption or other retirement of, USB Common Stock unless full dividends (including accumulated dividends, if applicable) have been paid or declared or set apart for payment upon all outstanding shares of the preferred stock of USB and USB is not in default or in arrears with respect to any sinking or other analogous fund or other agreement for the purchase, redemption or other retirement of any shares of preferred stock of USB. Holders of USB Common Stock are entitled to one vote per share. Shareholders do not have the right to cumulate their votes in the election of directors. USB Common Stock has no conversion rights and the holders of USB Common Stock have no preemptive or other rights to subscribe for additional securities of USB. In the event of the liquidation of USB, after the payment or provision for payment of all debts and liabilities and subject to the rights of the holders of preferred stock of USB which may be outstanding, the holders of USB Common Stock will be entitled to share ratably in the remaining assets of USB. The USB Common Stock is listed on the NYSE. USB DIVIDEND REINVESTMENT AND COMMON STOCK PURCHASE PLAN. Pursuant to its USB Reinvestment and Purchase Plan, USB provides eligible shareholders with a method of investing cash dividends and optional cash payments at 100% of the average price (as defined in the USB Reinvestment and Purchase Plan) in additional shares of USB Common Stock without payment of any brokerage commission or service charge. The USB Reinvestment and Purchase Plan includes certain dollar limitations on participation and provides for eligible shareholders to elect dividend reinvestment on only a part of the shares registered in the name of a participant (while continuing to receive cash dividends on remaining shares). PERIODIC STOCK PURCHASE RIGHTS AND RISK EVENT WARRANTS. USB has entered into (i) a Stock Purchase Agreement, dated as of May 30, 1990 (as amended, the "Stock Purchase Agreement"), by and among Corporate Partners, L.P. ("Corporate Partners"), Corporate Offshore Partners, L.P. ("Offshore" and, together with Corporate Partners, the "Partnerships"), The State Board of Administration of Florida ("State Board") solely in its capacity as a managed account and not in its individual capacity (State Board and the Partnerships being referred to herein collectively as the "Purchasers"), Corporate Advisors, L.P. and USB and (ii) a Stock Purchase Agreement, dated as of May 30, 1990 (the "Florida Stock Purchase Agreement"), by and between State Board in its individual capacity and USB. Pursuant to the Stock Purchase Agreement, USB sold (a) to Corporate Partners 26,568,723 shares of USB Common Stock, 10 Periodic Stock Purchase Rights (each a "PSPR") and one Risk Event Warrant, (b) to Offshore 1,931,928 shares of USB Common Stock, 10 PSPRs and one Risk Event Warrant and (c) to State Board 2,819,349 shares of USB Common Stock, 10 PSPRs and one Risk Event Warrant. Pursuant to the Florida Stock Purchase Agreement, USB sold to State Board 6,480,000 shares of USB Common Stock, 10 PSPRs and one Risk Event Warrant. The Stock Purchase Agreement and the Florida Stock Purchase Agreement contain transfer restrictions with respect to the shares of USB Common Stock acquired thereunder and standstill provisions limiting further acquisitions of USB Common Stock by the Purchasers and State Board. The Stock Purchase Agreement and the Florida Stock Purchase Agreement also grant each of the Purchasers and State Board the right to purchase its pro rata share of any Voting Securities (as defined in the Stock Purchase Agreement) sold by USB for cash, subject to certain exceptions. Pursuant to the Stock -7- Purchase Agreement, the Purchasers have designated one person to act as a non-voting observer of the USB Board of Directors. Each PSPR issued to the Purchasers and State Board relates to a specific twelve-month period commencing with the twelve-month period following closing of the transactions contemplated under the Stock Purchase Agreement and the Florida Stock Purchase Agreement. Each PSPR shall become exercisable in the event that a Dividend Shortfall (as defined in the Stock Purchase Agreement) exists for the specific twelve-month period to which such PSPR relates. A Dividend Shortfall will be deemed to exist to the extent that USB has not paid a cash dividend equal to $0.0683 per share of USB Common Stock for each quarter within such twelve-month period. The PSPRs will be exercisable for that number of shares of USB Common Stock or (subject to the prior approval of the Federal Reserve Board) depositary shares representing one one-thousandth of a share of Series 1990A Preferred Stock ("Depositary Shares") such that the holders of PSPRs will receive value equal to the Dividend Shortfall. Once a PSPR has become exercisable, it will remain exercisable for a one-year period at an exercise price of $1.25 per share of USB Common Stock or $1.00 per Depositary Share. If a PSPR were to become exercisable and were not redeemed by USB as described below, the issuance of Depositary Shares or USB Common Stock upon exercise of a PSPR could adversely affect the market price of the USB Common Stock. If the PSPRs were to be exercised for USB Common Stock, there could be substantial dilution of the USB Common Stock. Each Risk Event Warrant will become exercisable in the event of certain defined change of control events with respect to USB where the value received by holders of the USB Common Stock is less than $4.625 per share, or in certain circumstances in the event the USB Common Stock is valued at less than $4.625 per share on the tenth anniversary of the closing of the transactions contemplated under the Stock Purchase Agreement. The Risk Event Warrants will be exercisable for that number of shares of USB Common Stock at an exercise price of $1.25 per share or, in certain circumstances (subject to the prior approval of the Federal Reserve Board), Depositary Shares such that the holders of Risk Event Warrants will receive value equal to such shortfall. If the Risk Event Warrants were to become exercisable and were not redeemed by USB as described below, the issuance of Depositary Shares or USB Common Stock upon exercise of a Risk Event Warrant could adversely affect the market price of the USB Common Stock. If the Risk Event Warrants were to be exercised for USB Common Stock, there could be substantial dilution of the USB Common Stock. In the event of a change in control at a time when the market price of the USB Common Stock is less than $4.625 per share, the Risk Event Warrants may have the effect of reducing the price per share to be received by the holders of the USB Common Stock. In the event of the exercise of a Risk Event Warrant upon the occurrence of certain change of control events, USB may, at its option (subject to the prior approval of the Federal Reserve Board), elect to have such Risk Event Warrant become exercisable for other securities of USB acceptable to the holder of such Risk Event Warrant in lieu of the shares of USB Common Stock for which such Risk Event Warrant would otherwise become exercisable. In addition, USB has the right (subject to the prior approval of the Federal Reserve Board) to redeem any PSPR at a price equal to the Dividend Shortfall and any Risk Event Warrant at a price equal to the Value Shortfall (as defined in the Stock Purchase Agreement) or the Termination Shortfall Amount (as defined in the Stock Purchase Agreement), as applicable, after such PSPR or Risk Event Warrant, as the case may be, shall have become exercisable. USB also has entered into a registration rights agreement with the Purchasers and with State Board pursuant to which the Purchasers and State Board, respectively, are granted certain rights to cause USB to register with the Commission the USB Common Stock acquired pursuant to the Stock Purchase -8- Agreement and the Florida Stock Purchase Agreement and the securities acquired upon exercise of the PSPRs and the Risk Event Warrants. The foregoing is a summary of the transactions contemplated by the Stock Purchase Agreement and the Florida Stock Purchase Agreement and related documents and is qualified in its entirety by the more detailed information contained in such agreements and documents, copies of which are incorporated by reference as exhibits to the Registration Statement of which this Prospectus is a part. CERTAIN PROVISIONS OF THE USB CERTIFICATE AND USB BYLAWS The USB Certificate requires the affirmative vote of the holders of 80% of the "Voting Stock" (defined therein) of USB to approve certain mergers, consolidations, reclassifications, dispositions of assets or liquidation, involving or proposed by certain significant shareholders, unless certain price and procedural requirements are met or unless the transaction is approved by the "Continuing Directors" (defined therein). In addition, the USB Certificate provides for classification of the USB Board of Directors into three separate classes, sets a maximum board size of 30 and authorizes action by the shareholders of USB only pursuant to a meeting and not by a written consent. The foregoing provisions of the USB Certificate can only be amended by the affirmative vote of the holders of not less than 80% of the outstanding USB voting stock, except with respect to any amendment to the USB Certificate to reduce the maximum number of USB directors to the greater of (i) the number of directors then in office and (ii) 24, which amendment would require the approval of the holders of a majority of the outstanding of USB Common Stock pursuant to Delaware Law. The USB Bylaws provide that special meetings of shareholders may be called only by the USB Board of Directors or the chief executive officer. The overall effect of these provisions may be to delay or prevent attempts by other corporations or groups to acquire control of USB without negotiation with the USB Board of Directors. USE OF PROCEEDS Assuming all of the warrants are exercised, USB will receive gross proceeds of approximately $1.8 million. The proceeds to USB from the sale of the shares of USB Common Stock upon exercise of the warrants will be used for working capital and other general corporate purposes. DESCRIPTION OF WARRANTS AND PLAN OF DISTRIBUTION GENERAL On February 18, 1999, USB signed an agreement to acquire Bank of Commerce ("BOC"). The acquisition will be effected through a merger of BOC into a subsidiary of USB in which each share of BOC common stock will be exchanged for 0.60 shares of USB Common Stock. BOC has warrants outstanding which, after the merger, will become warrants to purchase USB Common Stock (the "Warrants"). This Prospectus is being distributed to holders of the Warrants and relates to the issuance of up to 378,945 shares of USB Common Stock (the "Shares") upon exercise of the Warrants. DESCRIPTION OF WARRANTS Each Warrant entitles the holder thereof to purchase for cash five shares of USB Common Stock at an exercise price of $4.67 per share, subject to adjustment in certain circumstances. The Warrants expire on July 25, 1999 and are not exercisable thereafter. To exercise a Warrant, the Warrant holder must -9- surrender the Warrant certificate to First Chicago Trust Company of New York, as Warrant Agent, at its corporate office in Jersey City, New Jersey, with the exercise subscription form on the reverse side of such certificate properly completed and executed, indicating the number of Shares to be purchased, accompanied by cash or a certified or cashier's check for the total exercise price. A holder of Warrants as such is not entitled to vote, receive dividends or exercise any of the rights of holders of shares of Common Stock until such time as such Warrants have been duly exercised and payment of the exercise price has been made. The Warrants are transferable by a holder upon (i) surrender of the Warrant Certificate for transfer at the office of the Warrant Agent, duly endorsed by or accompanied by a written instrument of transfer in form satisfactory to USB and the Warrant Agent, signed by the Warrant holder or his or her legal representative; and (ii) in accordance with the Securities Act of 1933, as amended. Thereafter, one or more new Warrant Certificates of authorized denominations will be issued to the designated transferee or transferees. FEDERAL INCOME TAX CONSEQUENCES Holders of the Warrants will not recognize any gain or loss on the purchase of Shares for cash upon exercise of the Warrants. The tax basis of the Shares received will be equal to the tax basis, as adjusted, in the Warrants so exercised, plus the cash exercise price. The initial tax basis of the Warrants is equal to the fair market value thereof as of the date of issuance. The holding period for purposes of determining whether gain realized upon sale of such Shares is to be treated as short-term or long term capital gain will not include any period during which the Warrants were held, but instead will commence upon the exercise of the Warrants. Holders of the Warrants should consult their own tax advisors concerning the federal income tax consequences of the sale, exchange or other disposition of the Warrants. Such holders should also consult with their own tax advisors as to the tax treatment arising from the application of foreign, state or local tax laws and regulations. PLAN OF DISTRIBUTION The Shares being offered hereby are being offered directly by USB to the holders of the Warrants. LEGAL MATTERS The validity of the Common Stock offered hereby will be passed upon for USB by Dorsey & Whitney LLP, Minneapolis, Minnesota. EXPERTS The consolidated financial statements of U.S. Bancorp (the Company) appearing in the Company's Annual Report (Form 10-K) for the year ended December 31, 1998 have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. -10- WHERE YOU CAN FIND MORE INFORMATION USB has filed with the Securities and Exchange Commission (the "SEC") a Registration Statement under the Securities Act that registers the distribution of the Shares upon exercise of the Warrants (the "Registration Statement"). The Registration Statement, including the attached exhibits and schedules, contains additional relevant information about USB and USB Common Stock. The rules and regulations of the SEC allow us to omit certain information included in the Registration Statement from this Prospectus. In addition, USB files reports, proxy statements and other information with the SEC under the Securities Exchange Act of 1934. You may read and copy this information at the following locations of the SEC: Public Reference Room New York Regional Office Chicago Regional Office 450 Fifth Street, N.W. 7 World Trade Center Citicorp Center Room 1024 Suite 1300 500 West Madison Street Washington, D.C. 20549 New York, New York 10048 Suite 1400 Chicago, Illinois 60661-2511 You may also obtain copies of this information by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. The SEC also maintains an Internet world wide web site that contains reports, proxy statements and other information about issuers, like USB, who files electronically with the SEC. The address of that site is http://www.sec.gov. You can also inspect reports, proxy statements and other information about USB at the offices of the NYSE, 20 Broad Street, New York, New York 10005. The SEC allows USB to "incorporate by reference" information into this Prospectus. This means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this Prospectus, except for any information that is superseded by information that is included directly in this document. This Prospectus incorporates by reference the documents listed below that USB has previously filed with the SEC. They contain important information about USB and its financial condition.
USB SEC FILINGS PERIOD - -------------------------------------------------------------------------------- Annual Report on Form 10-K . . . . . . . . . . Year ended December 31, 1998, as filed February 26, 1999 Current Report on Form 8-K . . . . . . . . . . Filed January 20, 1999
USB incorporates by reference additional documents that it may file with the SEC after the date of this Prospectus. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements. We may modify some of the statements contained in this Prospectus and the documents incorporated by reference. You should ignore any statements that are superseded. Documents incorporated by reference are available from the Company without charge, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this Prospectus. -11- You can obtain documents incorporated by reference in this Prospectus by requesting them in writing or by telephone from USB at the following address: Investor Relations U.S. Bancorp 601 Second Avenue South Minneapolis, Minnesota 55402-4302 Telephone (612) 973-2263 We have not authorized anyone to give any information or make any representation about USB that is different from, or in addition to, that contained in this Prospectus or in any of the materials that we've incorporated into this document. Therefore, if anyone does give you information of this sort, you should not rely on it. If you are in a jurisdiction where offers to exchange or sell, or solicitations of offers to exchange or purchase, the securities offered by this document or the solicitation of proxies is unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this document does not extend to you. The information contained in this document speaks only as of the date of this document unless the information specifically indicates that another date applies. FORWARD-LOOKING STATEMENTS This Prospectus (including information included or incorporated by reference herein) contains certain forward-looking statements with respect to the financial condition, results of operations, plans, objectives, future performance and business of USB, including, without limitation statements preceded by, followed by or that include the words "believes," "expects," "anticipates," "estimates" or similar expressions. These forward-looking statements involve certain risks and uncertainties. Actual results may differ materially from those contemplated by such forward-looking statements due to, among others, the following factors: (a) competitive pressures among financial services companies increase, including competition for SBA lending business; (b) changes in the interest rate environment reduce interest margins; (c) general economic conditions, either internationally or nationally or in the states or countries in which USB is doing business, change or are less favorable than expected; (d) legislative or regulatory changes adversely affect the businesses in which USB is engaged, including changes in SBA lending programs; (e) personal or commercial customers' bankruptcies increase; and (f) technological changes (including "Year 2000" data systems compliance issues) are more difficult or expensive than anticipated. See "WHERE YOU CAN FIND MORE INFORMATION." -12- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. EXPENSES.
Registration Statement filing fee . . . . . . . . . $ 3,798.80 Legal fees and expenses . . . . . . . . . . . . . . $10,000.00 Accounting fees and expenses . . . . . . . . . . . $ 5,000.00 Printing costs . . . . . . . . . . . . . . . . . . $ 1,000.00 Miscellaneous . . . . . . . . . . . . . . . . . . . $ 201.20 Total . . . . . . . . . . . . . . . . . . . . $20,000.00
ITEM 15. 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 Nine 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 16. 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. (Incorporated by reference to Exhibit 2.1 of Form S-4 filed April 2, 1999) The registrant agrees to furnish a supplemental copy of omitted schedules to the Commission upon request. 3 Restated Certificate of Incorporation, as amended. (Incorporated by reference to Exhibit 3.1 to the registrant's report on Form 10-Q for the period ended March 31, 1998.) 4.1 Certificate of Designation and Terms of Term Participating Preferred Stock of U.S. Bancorp (Incorporated by reference to Exhibit 4.1 of the Form S-4 filed April 2, 1999) II-1 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.) 4.6 Warrant Agreement, dated as of July 25, 1995, by and between Bank of Commerce and Chemical Mellon Shareholder Services L.L.C. as Warrant Agent, and Form of Warrant. 4.7 Stock Purchase Agreement dated as of May 30, 1990, among Corporate Partners, L.P.; Corporate Offshore Partners, L.P.; The State Board of Administration of Florida and U.S. Bancorp and related documents. (Incorporated by reference to Exhibit 4.8-4.15 of the Company's Registration Statement on Form S-3, File No. 33-42650) 5.1 Opinion and consent of Dorsey & Whitney LLP as to legality of the securities being registered. 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). 24 Powers of Attorney. 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 (Incorporated by reference to Exhibit 99.1 of the Form S-4 filed April 2, 1999) 99.2 Articles of Incorporation of BOC (Incorporated by reference to Exhibit 99.2 of the Form S-4 filed April 2, 1999) 99.3 Bylaws of BOC, as amended. (Incorporated by reference to Exhibit 99.3 of the Form S-4 filed April 2, 1999) 99.4 Opinion of Keefe, Bruyette & Woods, Inc. (Incorporated by reference to Exhibit 99.2 of the Form S-4 filed April 2, 1999) II-2 ITEM 17. 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 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. provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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. (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. II-3 (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. (f) The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this 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 * 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 ---------------------------------------- ------------------ Delbert W. Johnson Director * May 3 , 1999 ---------------------------------------- ------------------ Joel W. Johnson Director * 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 ---------------------------------------- ------------------ Warren R. Staley Director By /s/ Susan E. Lester -------------------------------- Susan E. Lester Pro se and as Attorney-in-Fact 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. (Incorporated by reference to Exhibit 2.1 of the Form S-4 filed April 2, 1999) The registrant agrees to furnish a supplemental copy of omitted schedules to the Commission upon request. 3 Restated Certificate of Incorporation, as amended. (Incorporated by reference to Exhibit 3.1 to the registrant's report on Form 10-Q for the period ended March 31, 1998.) 4.1 Certificate of Designation and Terms of Term Participating Preferred Stock of U.S. Bancorp. (Incorporated by reference to Exhibit 4.1 of the Form S-4 filed April 2, 1999) 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.) 4.6 Warrant Agreement, dated as of July 25, 1995, by and between Bank of Commerce and Chemical Mellon Shareholder Services L.L.C. as Warrant Agent, and Form of Warrant. 4.7 Stock Purchase Agreement dated as of May 30, 1990, among Corporate Partners, L.P.; Corporate Offshore Partners, L.P.; The State Board of Administration of Florida and U.S. Bancorp and related documents. (Incorporated by reference to Exhibit 4.8-4.15 of the Company's Registration Statement on Form S-3, File No. 33-42650) 5.1 Opinion and consent of Dorsey & Whitney LLP as to legality of the securities being registered. 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). 24.1 Powers of Attorney. 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 (Incorporated by reference to Exhibit 99.1 of the Form S-4 filed April 2, 1999) 99.2 Articles of Incorporation of BOC (Incorporated by reference to Exhibit 99.2 of the Form S-4 filed April 2, 1999) 99.3 Bylaws of BOC, as amended. (Incorporated by reference to Exhibit 99.3 of the Form S-4 filed April 2, 1999) 99.4 Opinion of Keefe, Bruyette & Woods, Inc. (Incorporated by reference to Exhibit 99.4 of the Form S-4 filed April 2, 1999) EX-4.6 2 EXHIBIT 4.6 BANK OF COMMERCE AND CHEMICAL MELLON SHAREHOLDER SERVICES L.L.C. Warrant Agent WARRANT AGREEMENT Dated as of July 25, 1995 WARRANT AGREEMENT THIS WARRANT AGREEMENT (the "AGREEMENT") is made and entered into by Bank of Commerce, a California state-chartered bank (the "BANK"), and Chemical Mellon Shareholder Services, L.L.C. (the "WARRANT AGENT") as of July 25, 1995, with regard to the following: A. The Bank proposes to issue "C" Warrants ("C WARRANTS") and D Warrants ("D WARRANTS") (together, the "Warrants," individually, "WARRANT") as evidenced by Warrant Certificates (the "WARRANT CERTIFICATES") initially evidencing the right to purchase up to 500,000 shares of Common Stock, no par value, of the Bank (the "COMMON STOCK") pursuant to the Offering Circular for the public offering of Units of be Bank, each of which is composed of two shares of Floating Rate Non-Cumulative Series B Preferred Stock, one C Warrant and one D Warrant (the "OFFERING CIRCULAR"). B. The Company desires that the Warrant Agent act on behalf of The Company in connection with, the issuance, transfer, exchange, exercise and replacement of the Warrants and Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrants and Warrant Certificates and the terms and conditions on which they may be issued, transferred, exchanged, exercised and replaced. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. ISSUANCE, EXECUTION AND DELIVERY OF WARRANTS 1.1 ISSUANCE OF WARRANTS. Warrants, as evidenced by Warrant Certificates each in substantially the form of Exhibits A (C warrant) or B (D Warrant) hereto, shall be issued. Each Warrant Certificate shall evidence the right, subject to the provisions of this Agreement and of the Warrant Certificate, to purchase that number of Warrant Shares as set forth on the face of the Warrant Certificate, but not less than one whole Warrant Share. For the purposes of this Agreement and the Warrant Certificates, "C WARRANT SHARES" means the number of shares of Common Stock deliverable upon exercise of a C Warrant, and "D WARRANT SHARES" means the number of shares of Common Stock deliverable upon exercise of a D Warrant, as adjusted from time to time pursuant to the provisions of Paragraph 3 hereof. 1.2 EXECUTION AND DELIVERY OF WARRANTS. Each Warrant Certificate shall bear the facsimile signature of the Chief Executive Office and Corporate Secretary, and shall be countersigned by the Warrant Agent. Except for the countersignature of the Warrant Agent, the Bank may adopt and use as the facsimile signature of any such officer the facsimile signature of any person who on the date of this Agreement or at any time thereafter shall have been such officer, whether or not he or she is such officer at the time of issue of any Warrant Certificate. The Warrant Certificates shall be issued in registered form only. For purposes of this Agreement and the Warrant Certificates, the term "Registered Holder" shall mean the "PERSON" or "PERSONS". in whose name or names a particular Warrant shall be registered on the books of the Bank kept for that purpose in accordance with the terms of this Agreement. For purposes of this Agreement and the Warrant Certificates the term "Person" shall mean an individual partnership, corporation, trust, joint stock company, association, joint venture, or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. 2. EXERCISE PRICE, DURATION AND TRANSFER AND EXERCISE OF WARRANTS 2.1 EXERCISE PRICE. Each Warrant Certificate shall, when properly countersigned by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of this Agreement and the Warrant Certificate, to purchase from the Bank the number of Warrant Shares stated on the Warrant Certificate, as such Warrant Shares are constituted on the date the Warrants evidenced thereby are exercised, at the price of $12.00 per Warrant Share as to C Warrants (the "C WARRANT EXERCISE PRICE") and $14.00 per share as to D Warrants (the "D WARRANT EXERCISE PRICE") payable in full at the time such warrants are exercised. The C Warrant Exercise Price Shall be adjusted from time to time upon the adjustment of the number of shares that may be purchased upon the exercise of all C Warrants issued pursuant to this Agreement in accordance with Paragraph 3 hereof, so that the aggregate of the C Warrant Exercise Price paid and payable upon the exercise of all C Warrants issued under this Agreement shall not be greater at any time than $3,000,000. The D Warrant Exercise Price shall be adjusted from time to time upon the adjustment of the number of shares that may be purchased upon the exercise of all D Warrants issued pursuant to this Agreement in accordance with Paragraph 3 hereof, so that the aggregate of the D Warrant Exercise Price paid and payable upon exercise of all D Warrants issued under this Agreement shall not be greater at any time than $3,500,000. 2.2 DURATION. Warrants may be exercised only on or after the date of issuance and on or before their respective expiration dates (the "EXPIRATION DATES"). Each C Warrant shall expire on July 25, 1997, Each D Warrant shall expire on July 25, 1999. The Bank shall advise the Warrant Agent of the date of issuance of each Warrant and shall confirm with the Warrant Agent the Expiration Date of each Warrant upon issuance. Each Warrant not exercised prior to its Expiration Date shall become void, and all rights of the Registered Holder thereunder and under this Agreement and the Warrant Certificate shall cease after the close of business on the relevant Expiration Date. 2.3 TRANSFER AND EXERCISE. 2.3.1 The Bank shall keep, at the office of the Warrant Agent at Los Angeles, California, a register, in which, subject to such reasonable regulations as it may prescribe, the Bank shall register the Warrants at the time of issuance thereof and shall transfer Warrants so registered as provided in this Agreement. Upon surrender for transfer of any Warrant at such office, the Bank shall execute and the Warrant Agent shall countersign and deliver to the name of the transferees a new Warrant Certificate or Certificates evidencing Warrants to purchase a like number of Warrant Shares. All Warrant Certificates presented for transfer or exchange shall (if required by the Bank) be Duly Endorsed or be accompanied by a written instrument of transfer in form satisfactory to the Bank and Warrant Agent duly executed by the Registered Holder or his 2 or her attorney duly authorized. For purposes of this Agreement and the Warrant Certificates, the term "DULY ENDORSED" shall mean duly endorsed in blank by the Person or Persons in whose name a Warrant Certificate is registered or accompanied by a duly executed assignment separate from the certificate with the signatures thereon, guaranteed by a commercial bank, trust company or other financial institution of nationally recognized standing in the United States. 2.3.2 A Registered Holder is entitled to exercise his or her Warrants, in whole or in part, so long as the number of shares of Common Stock is no less than the lesser of the full number subject to exercise under the relevant Warrant Certificate or 100, at any time, or from time to time commencing on the date of issuance, upon written notice to the Warrant Agent, until 5:00 p.m. Pacific time on the relevant Expiration Date or, if such day is not a Business Day, then until 5:00 p.m. Pacific time on the next succeeding day that shall be a Business Day by presenting and surrendering their Warrant Certificates to the Bank at the office of the Warrant Agent at Los Angeles, California, with the Exercise Subscription Form set forth on the Warrant Certificate, duly executed and accompanied by proper payment, of the C Warrant Exercise Price or D Warrant Exercise Price for the number of C Warrant Shares or D Warrant Shares specified in such form, all subject to the terms and conditions of this Agreement and the Warrant Certificate. At the option of the Registered Holder, the Exercise Price may be paid in cash or by certified or official bank check or bank cashier's check payable to the order of the Bank, or by any combination of cash or such check. For purposes of this Agreement and the Warrant Certificates, the term "BUSINESS DAY" shall mean any day except a Saturday, Sunday or other day on which commercial banks in Los Angeles, California are authorized by law to close. 2.3.3 Upon surrender of any Warrants in conformity with the provisions of this Agreement and the Warrant Certificate, the Bank shall transfer to the Registered Holder of such Warrants appropriate evidence of ownership of any shares of Common Stock to which the Registered Holder is entitled, registered or otherwise placed in, or payable to the order of the Registered Holder, and shall deliver such evidence of ownership, together with an amount in cash in lieu of any fraction of a share of Common Stock as provided in Paragraph 3.3 below. 2.3.4 If a Registered Holder exercises fewer than all of the Warrants evidenced by such Registered Holder's Warrant Certificate, such Warrant Certificate shall be surrendered to the Bank and a new Warrant Certificate of the same tenor evidencing such Registered Holder's remaining Warrants shall be executed by the Bank. The Bank shall register such new Warrant Certificate in the name of such Registered Holder and deliver the new Warrant Certificate to such Registered Holder. 2.3.5 The Bank shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed in respect of, the issue or delivery of any shares of Common Stock issuable upon the exercise of any Warrant. The Bank shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of a certificate for shares of Common Stock in any name other than that of a Registered Holder of a Warrant, and in such case the Bank shall not be required to issue or deliver any such stock certificate until such tax or other charge has been paid or it has been established to the Bank's reasonable satisfaction that such tax or other charge is not due. 3 2.3.6 Each Person in whose name any such certificate for shares of Common Stock is issued shall for all purposes be deemed have become the holder of record of the Common Stock represented thereby on the date on which the Warrant was surrendered and payment of the purchase price and any applicable taxes was made irrespective of the date of issue or delivery of such certificate except that if the date of such surrender and payment is a date when the stock transfer books of the Bank for the Common Stock are closed, such Person shall be deemed to have become the holder such shares on the next succeeding date on which such stock transfer books are open, The Bank will not close such stock transfer books at any one time for a period longer than 20 days. 3. ADJUSTMENTS IN WARRANT SHARES; FRACTIONAL SHARES 3.1 ANTI-DILUTION PROVISIONS. The number of shares of Common Stock which may be purchased upon the exercise hereof shall be subject to change or adjustment as follows: 3.1.1 STOCK DIVIDENDS-SUBDIVISIONS, COMBINATIONS. In case the Bank shall pay a dividend on the Common Stock in shares of Common Stock (or securities convertible into, exchangeable for or otherwise entitling the registered holder to receive Common Stock) , (ii) subdivide the outstanding Common Stock into a greater number of shares of Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares of Common Stock, the number of shares of Common Stock purchasable upon exercise of any Warrant immediately prior to the record date fixing shareholders to be affected by such event shall be adjusted so that the Registered Holder shall thereafter be entitled to receive that kind and number of shares of Common Stock or other securities of the Bank that the Registered Holder would have owned or have been entitled to receive after the happening of any of the events described above, had the Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph 3.1.1 shall become effective (i) immediately after the record date in the case of a dividend and (i) immediately after the effective date in the case of a subdivision or combination. If the Bank shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in the number of shares of Common Stock issuable upon exercise of a Warrant then in effect shall be required by reason of the taking of such record. No adjustment shall be made under this Paragraph 3.1.1 unless such adjustment would require an increase or decrease of at least one percent in the number of shares of Common Stock or other securities of the Bank that the Registered Holder would have owned or have been entitled to receive had the Warrant been exercised, provided however, that any adjustments which by reason of this sentence are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and all calculations shall be made to the nearest one-hundredth of a share, 3.1.2 REORGANIZATION OR RECLASSIFICATION. In case of any capital reorganization or any reclassification of the capital stock of the Bank (whether pursuant to a merger or 4 consolidation or otherwise), each Warrant shall thereafter be exercisable for the number of shares of stock or other securities or property receivable upon such capital reorganization or reclassification of capital stock, as the case may be, by a holder of the number of shares of Common Stock into which the Warrant was exercisable immediately prior to such capital reorganization or reclassification of capital stock; and, in any case, appropriate adjustment shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the Registered Holder of any Warrant to the end that the provisions set forth herein shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other securities or property thereafter deliverable upon the exercise of the Warrant. 3.1.3 NOTICE. In the event that the Bank shall propose at any time to effect any transaction of the type described in Subsections 3.1.1 and 3.1.2 above or take any similar extraordinary corporate action affecting the Bank's capital stock (including but not limited to the transfer of substantially all of the Bank's assets), then, in connection with each such event, the Bank shall send notice thereof to all Registered Holders at least 20 days prior to the earlier of (i) the date on which such event is to become effective, (ii) the record date for the shareholders affected by such event, or (iii) the first date on which the Bank intends to effect any such transaction, in each case specifying in reasonable detail what the transaction or event consists of and, if applicable, the aggregate amount or value of any cash or property proposed to be distributed, paid, purchased or received by the Bank in connection therewith. 3.1.4 ADJUSTMENT OF EXERCISE PRICE. The C Warrant Exercise Price per share of Common Stock purchasable upon exercise of any C Warrant shall be subject to adjustment from time to time as follows: upon each adjustment of the number of shares of Common Stock purchasable pursuant to this Section 3.1, the C Warrant Exercise Price shall be reduced or increased, as the case may be, to a price determined by dividing the aggregate C Warrant Exercise Price of all C Warrant Shares in effect prior to such adjustment by the total minimum number of C Warrant Shares purchasable upon the exercise of all C Warrants immediately after such adjustment. The D Warrant Exercise Price per share of Common Stock purchasable upon exercise of any D Warrant shall be subject to adjustment from time to time as follows: upon each adjustment of the number of shares of Common Stock purchasable pursuant to this Section 3.1, the D Warrant Exercise Price shall be reduced or increased, as the case may be, to a price determined by dividing the aggregate D Warrant Exercise Price of all D Warrant Shares in effect prior to such adjustment by the total maximum number of D Warrant Shares purchasable upon the exercise of all D Warrants immediately after such adjustment. 3.2 CONSOLIDATION, MERGER, OR SALE OF ASSETS. In addition to any other rights of Registered Holders set forth herein, in case of any consolidation of the Bank with, or merger of the Bank into, any other Person, any merger of another Person into the Bank (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) or any sale or transfer of all or substantially all of the assets of the Bank to the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, all Registered Holders shall have the right thereafter to exercise their Warrants for the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock 5 for which their Warrants may have been exercised immediately prior to such consolidation, merger, sale or transfer. Adjustments for events subsequent to the effective date of such a consolidation, merger and sale of assets shall be as nearly equivalent as may be practicable to the adjustments provided for in this Agreement. In any such event, effective provisions shall be made in the certificate or articles of incorporation of the resulting or surviving corporation, in any contact of sale, conveyance, lease or transfer, or otherwise so that the provisions set forth herein for the protection of the rights of the Registered Holders shall thereafter continue to be applicable, and any such resulting or surviving corporation shall expressly assume the obligation to deliver, upon exercise, such shares of stock, other securities, cash and property. The provisions of this Paragraph 3.2 shall similarly apply to successive consolidations, mergers, sales, leases or transfers. 3.3 FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon the exercise of any Warrant. If any fraction of a shut of Common Stock would be issuable upon the exercise of a Warrant, the Bank shall round down the number of shares of Common Stock to be issued upon exercise of such Warrant to the nearest lower whole number of shares of Common Stock. 4. OTHER PROVISIONS RELATING TO THE RIGHTS OF REGISTERED HOLDERS OF WARRANTS 4.1 RIGHTS OF REGISTERED HOLDERS. Prior to the exercise of any Warrant, a Registered Holder shall not, by virtue hereof, be entitled to any rights of a shareholder of the Bank including, without limitation, the right to vote, to receive dividends or other distributions or to receive any notice of meetings of shareholders or any notice of any proceedings of the Bank, except as may be specifically provided for herein. 4.2 ASSIGNMENT OR TRANSFER. A Warrant is transferable by the Registered Holder thereof by surrendering for transfer at the office of the Warrant Agent in Los Angeles, California, maintained for that purpose, the Warrant Certificate evidencing the Warrant and the Assignment Form, Duly Endorsed, set forth on the Warrant Certificate. Thereupon, one or more new Warrant Certificates evidencing the transferred Warrants of authorized denominations will be issued to the designated transferee or transferees, and, if necessary, a new Warrant Certificate evidencing warrants not transferred will be issued to the original Registered Holder. In any event, Warrants may not be sold, assigned, pledged or otherwise transferred except in compliance with the Securities Act of 1933, as amended, if applicable. 4.3 LOSS OF WARRANT CERTIFICATES. Upon receipt by the Bank of evidence satisfactory to it (in the exercise of its reasonable discretion) of the loss, theft, destruction or mutilation of any Warrant Certificate, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of any Warrant Certificate, if mutilated, the Bank shall execute and deliver a new Warrant Certificate of like tenor and date. The provisions of this Paragraph 4.3 are exclusive and shall preclude (to the extent lawful) all other rights or remedies with respect to the replacement of mutilated, lost, stolen, or destroyed Warrant Certificates. 6 4.4 RESERVATION OF SHARES. The Bank hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of any Warrant such number of its authorized but unissued shares of Common Stock or other securities of the Bank from time to time issuable upon exercise of the Warrants as will be sufficient to permit the exercise in full of the Warrants. All such shares shall be duly authorized and, when issued upon such exercise, shall be validly issued, fully paid, free and clear of all liens, security interests and charges. 5. CONCERNING THE WARRANT AGENT AND OTHER MATTERS 5.1 PAYMENT OF TAXES. The Bank will from time to time promptly pay to the Warrant Agent, or make provision satisfactory to the Warrant Agent for the payment of, all taxes and charges that may be imposed by the United States or any State upon the Bank or the Warrant Agent upon the issuance or delivery of shares of Common Stock upon the exercise of any Warrant, but the Bank shall not be obligated to pay any transfer taxes in respect of the Warrant or such shares. 5.2 RESIGNATION, CONSOLIDATION OR MERGER OF WARRANT AGENT, AND SUCCESSOR WARRANT AGENT. 5.2.1 The Warrant Agent may resign its duties and be discharged from all further duties and liabilities hereunder after giving one month's notice in writing to the Bank, except that such shorter notice may be given as the Bank shall in writing, accept as sufficient. If the office of Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Bank shall appoint in writing a new Warrant Agent. If the Bank shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Warrant Agent or by the Registered Holder of a Warrant, then the Registered Holder of any Warrant may apply to any court of competent jurisdiction in the State of California, County of San Diego, for the appointment of a new Warrant Agent. Any new Warrant Agent, whether appointed by the Bank or by such a court, shall be a financial institution of nationally recognized standing in the United States, which is authorized, under any applicable law to exercise corporate trust powers and is subject to supervision or examination by United States federal or state authority and which has a combined capital and surplus of not less than $50,000,000. Any new Warrant Agent appointed hereunder shall execute, acknowledge and deliver to the former Warrant Agent last in office and to the Bank an instrument accepting such appointment hereunder and thereupon such new Warrant Agent without any further act or deed shall become vested with all the rights, powers, duties and responsibilities of the Warrant Agent hereunder with like effect as if it had been named as the Warrant Agent; but if for any reason it becomes necessary or expedient to have the former Warrant Agent execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Bank and shall be legally and validly executed and delivered by the former Warrant Agent. Not later than the effective date of any such appointment the Bank shall file notice thereof with the former Warrant Agent and each transfer agent for the Common Stock, and shall forthwith mail notice thereof to the Registered Holders of the Warrants at their addresses as they appear on the registry books. Failure to file or mail such notice, or any defect therein, shall not affect the legality or validity of the appointment of the successor Warrant Agent. 7 5.2.2 Any Person into which the Warrant Agent or any new Warrant Agent may be merged or converted or with which it may be consolidated or any Person resulting from any merger, conversion or consolidation to which the Warrant Agent or any new Warrant Agent shall be a party, shall be the successor Warrant Agent under this Agreement without any further act, provided that such company would be eligible for appointment as a successor Warrant Agent under the provisions of Paragraph 5.2.1. 5.3 FEES AND EXPENSES OF WARRANT AGENTS. The Bank agrees (i) that it will pay the Warrant Agent reasonable remuneration for its services as Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder; and (ii) that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement. 5.4 ADDITIONAL PROVISIONS. 5.4.1 The Warrant Agent may consult with legal counsel (who may be legal counsel for the Bank), and the opinion of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted by it in good faith and in accordance with such opinion. 5.4.2 Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any matter be proved or established by the Bank prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate or instrument signed by the Chief Executive Officer, President or an Executive Vice President or Senior Vice President of the Bank and delivered to the Warrant Agent; and such certificate or instrument shall be full warrant to the Warrant Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate or instrument; but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such matter or may require such further or additional evidence as it may deem reasonable. 5.4.3 The Warrant Agent shall be liable hereunder only for its own negligence or willful misconduct. 5.4.4 The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Warrant Certificates (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Bank only. 8 5.4.5 The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof or in respect of the validity or execution of any Warrant or Warrant Certificate (except its countersignature thereof); nor shall it be responsible for any breach by the Bank of any covenant or condition contained in this Agreement or in a Warrant Certificate; nor shall it be responsible for the making of any adjustment in the Warrant Shares required under the provision of Paragraph 3 hereof or responsible for the manner, method or amount of any such adjustment or the facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or Warrant Certificate or as to whether any shares of Common Stock will when issued be validly authorized and issued and fully paid. 5.4.6 Anything in this Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 5.5 ACCEPTANCE OF AGENCY. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth. 5.6 MODIFICATION OF AGREEMENT. Notwithstanding anything in Paragraph 5.11 herein to the contrary, the Warrant Agent may, without the consent or concurrence of the Registered Holder by supplemental agreement or otherwise, concur with the Bank making any changes or corrections in this Agreement that they shall have been advised by counsel are required to cure any ambiguity or to correct any defective or inconsistent provision or clerical omission or mistake or manifest error herein contained. 5.7 SUCCESSORS. All the covenants and provisions of this Agreement by or for the benefit of the Bank shall bind and inure to the benefit of its successors and assigns. 5.8 MERGER OR CONSOLIDATION OR SALE OF ASSETS OF THE BANK. The Bank will not merge or consolidate with any other corporation, unless the corporation resulting from such merger or consolidation (if not the Bank), shall expressly assume, by supplemental agreement satisfactory in form to the Warrant Agent and executed and delivered to the Warrant Agent, the due and punctual performance and observance of each and every covenant and condition of this Agreement to be performed and observed by the Bank. 5.9 PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. 5.9.1 Nothing this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any Person other than the Bank, the Warrant Agent and the Registered Holders any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof and all covenants, conditions, stipulations, promises and agreements in this 9 Agreement contained shall be for the sale and exclusive benefit of the Bank and the Warrant Agent and their successors and of the Registered Holders. 5.9.2 The Bank, the Warrant Agent and any transfer agent and registrar for the Common Stock may deem and treat the Person in whose name any Warrant Certificate shall be registered upon the books of the Bank as the absolute owner of such Warrant Certificate (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Bank or the Warrant Agent) for all purposes; and neither the Bank nor the Warrant Agent or any transfer agent or registrar of the Common Stock shall be affected by an notice to the contrary. 6. GENERAL PROVISIONS. 6.1. NOTICES. Unless otherwise specifically permitted by this Agreement, all notices or other communications required or permitted under this Agreement between the Warrant Agent and the Bank shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or sent by telecopy, provided that the telecopy cover sheet contain a notation of the date and time of transmission, and shall be deemed received: (i) if personally delivered, upon the date of delivery to the address of the person to receive such notice, (ii) if mailed in accordance with the provisions of this paragraph, two (2) business days after the date placed in the United States mail, (iii) if mailed other than in accordance with the provisions of this paragraph or mailed from outside the United States, upon the date of delivery to the address of the person to receive such notice, or (iv) if given by telecopy, when sent. Notices shall be given at the following addresses: If to the Bank: Bank of Commerce 9918 Hibert Street, Suite 101 San Diego, California 92131 Attention: Corporate Secretary Telecopier: (619) 578-3433 With a copy to: Higgs, Fletcher & Mack 401 West "A" Street, Suite 2000 San Diego, California 92101 Attention: Kurt L. Kicklighter, Esq. Telecopier: (619) 696-1410 If to the Warrant Agent: Chemical Mellon Shareholder Services 300 South Grand Ave, 4th Floor Los Angeles, California 90071 Telecopier: (213) 617-9046 10 Attention: Ian D. Gass Telecopier: (213) 917-9046 With a copy to: -------------------------------- -------------------------------- -------------------------------- Attention: --------------------- Telecopier: -------------------- 6.2. COMPLETE AGREEMENT: MODIFICATIONS. This Agreement and written agreements, if any, entered into concurrently herewith (i) constitute the parties' entire agreement, including all terms, conditions, definitions, warranties, representations, and covenants, with respect to the subject matter hereof, (ii) merge all prior discussions and negotiations between or among any or all of them as to the subject matter hereof, and (iii) supersede and replace all terms, conditions, definitions, warranties, representations, covenants, agreements, promises and understandings, whether oral or written, with respect to the subject matter hereof. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by a majority of all Registered Holders and the Bank, or in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provide shall be cumulative and not exclusive of any rights or remedies by law. Any amendment, alteration, or modification requiring the signature of more than one party may be signed in counterparts. 6.3. FURTHER ACTIONS. Each party agrees to perform any further acts and execute and deliver any further documents reasonably necessary to carry out the provisions of this Agreement. 6.4. ASSIGNMENT. No party may assign its rights under this Agreement without the prior written consent of the other parties hereto. 6.5. SUCCESSORS AND ASSIGNS. Except as explicitly provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns. 6.6. SEVERABILITY. If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law if enforcement would not frustrate the overall intent of the parties (as such intent is manifested by all provisions of the Agreement, including such invalid, void, or otherwise unenforceable portion). 6.7. EXTENSION NOT A WAVIER. No delay or omission in the exercise of any power, remedy, or right herein provided or otherwise available to any party shall impair or affect the right 11 of such party thereafter to exercise the same. Any extension of time or other indulgence granted to a party hereunder shall not otherwise alter or affect any power, remedy or right of any other party, or the obligations of the party to whom such extension or indulgence is granted except as specifically waived. 6.8. TIME OF ESSENCE. Time is of the essence of each and every term, condition, obligation and provision hereof. 6.9. NO THIRD PARTY BENEFICIARIES. Subject to Paragraph 5.9, this Agreement and each and every provision hereof is for the exclusive benefit of the parties hereto and not for the benefit of any third party. 6.10. ATTORNEYS' FEES. Should any litigation (including any proceedings in a bankruptcy court) or arbitration be commenced between the parties hereto or their representatives concerning any provision of this Agreement or the rights and duties of any person or entity hereunder, the party or parties prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to the attorneys' fees and court or arbitration costs incurred by reason of such litigation or arbitration, including attorneys' and experts' fees incurred in preparation for or investigation of any matter relating to such litigation or arbitration. 6.11. HEADINGS. The headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, or extend or interpret the scope of this Agreement or of any particular provision hereof. 6.12. REFERENCES. A reference to a particular paragraph of this Agreement shall be deemed to include references to all subordinate paragraphs, if any. 6.13. GENDER, NUMBER, AND TENSE. Throughout this Agreement, unless the context otherwise requires, (i) the masculine, feminine, and neuter genders each includes the other; (ii) the singular includes the plural, and the plural includes the singular; and (iii) the past tense includes the present, and the present tense includes the past. 6.14. COUNTERPARTS. This Agreement may be signed in multiple counterparts with the same force and effect as if all original signatures appeared on one copy; and in the event this Agreement is signed in counterparts, each counterpart shall be deemed an original and all of the counterparts shall be deemed to be one agreement. 12 6.15. APPLICABLE LAW. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. BANK OF COMMERCE By: /s/ [ILLEGIBLE] ------------------------------ Its: SVP ------------------------------ CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C. By: /s/ [ILLEGIBLE] ------------------------------ Its: VICE - PRESIDENT ------------------------------ [GRAPHIC] EXERCISABLE ONLY ON AND AFTER SEPTEMBER 21, 1995 AND ON OR BEFORE JULY 25, 1999 DEFINITIVE WARRANT CERTIFICATE TO PURCHASE WARRANT SHARES AS HEREIN DESCRIBED. [LOGO] BANK OF COMMERCE "D" COMMON STOCK PURCHASE WARRANT VOID AFTER JULY 25, 1999 CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANING ASSIGNED TO THEM IN THE WARRANT AGREEMENT HEREINAFTER REFERRED TO. - ------------------------ WARRANT SHARES - ------------------------ CUSIP 061589 14 9 - ------------------------------------------------------------------------------- THIS CERTIFIES THAT SPECIMEN - ------------------------------------------------------------------------------- (being herein called the "Registered Holder"), will be entitled to purchase, at any time on or after September 21, 1995, and on or before July 25, 1999, Warrant Shares, each Warrant Share consisting of one share of fully paid Common Stock, no par value, of BANK OF COMMERCE (the "Bank"), as such stock is constituted at the date of this Warrant Certificate (but the number of Warrant Shares may be adjusted from time to time as stated below), at the price ("Exercise Price") of $49.00 per Warrant Share, by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed, at the office of CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C, or its successor as warrant agent, in Los Angeles, California (such Warrant agent being herein called the "Warrant Agent"), and by paying in full, as provided in the Warrant Agreement, the Exercise Price for the warrant Shares as to which this Warrant Certificate is exercised, and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement hereinafter referred to. No such purchase may be of a number of Warrant Shares less upon the lessor of the number of Warrant Shares set forth on this Warrant Certificate and [ILLEGIBLE]. The warrants evidenced by this Warrant Certificate (the "Warrants") may not be exercised unless the Warrant Certificate is countersigned below by the Warrant Agent. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Registered Holder thereof a new Warrant Certificate evidencing the Warrant and exercised. In certain events provided for in the Warrant Agreement which provisions are set forth on the back hereof the shares of Common Stock included in a Warrant Share may be adjusted as herein provided. The term "Warrant Share" refers to such shares as so adjusted from time to time. No fractional shares will be issued upon the exercise of rights in purchase hereunder. If any fraction of a share of Common Stock would be Issuable upon the exercise of any of the Warrants evidenced hereby, the Bank shall round the number of shares of Common Stock to be issued on such exercise to the nearest lower whole number of shares of Common Stock. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of July 25, 1995 between the Bank and the Warrant Agent and is subject to the terms and provisions contained in said Warrant Agreement, to all of which terms and provisions the Registered Holder of this Warrant Certificate consents by acceptance hereof. Copies of said Warrant Agreement are on file at the above-mentioned office of the Warrant Agent. This Warrant Certificate is transferable by the Registered Holder hereof, upon (i) surrender of this Warrant Certificate for transfer at the office of the Warrant Agent maintained for that purpose in Los Angeles, California, duty endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Bank and the Warrant Agent, duly executed by the Registered Holder hereon or his attorney duly authorized in writing, and thereupon one or more new Warrant Certificates of authorized denominations will be issued to the designed transfers or transferees and (ii) compliance with the Securities Act of 1933, as amended, if applicable. The Bank and the Warrant Agent and all transfer agents and registered for the Common Stock may deem and treat the Registered Holder hereof as the absolute owner of this Warrant Certificate for all purposes, and neither the Bank, the Warrant Agent nor any such transfer agents or registrars shall be affected by any notice to the contrary. This Warrant Certificate shall not entitle the Registered Holder hereof to any of the rights of a shareholder of the Bank including, without limitation, the right to vote, to receive dividends and other distributions, to exercise any pre-emptive right, or to receive any notice of, or to attend, meetings of shareholders of any other proceedings of the Bank. This Warrant Certificate shall be void and all rights represented hereby shall cease unless exercised on or before July 25, 1999. Dated: COUNTERSIGNED: CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C AS WARRANT AGENT BY: ---------------------------------------- AUTHORIZED OFFICER [SEAL] BANK OF COMMERCE BY: BY: -------------------------------- --------------------------------- SPECIMEN SPECIMEN SECRETARY PRESIDENT BANK OF COMMERCE The text of Paragraph 3 of the Warrant Agreement is set forth below. 3. Adjustments in Warrant Shares; Fractional Shares 3.1 ANTI-DILUTION PROVISIONS. The number of shares of Common Stock which may be purchased upon the exercise hereof shall be subject to change or adjustment as follows: 3.1.1 STOCK DIVIDENDS - SUBDIVISIONS. COMBINATIONS, In case the Bank shall (i) pay a dividend on the Common Stock in shares of Common Stock (or securities convertible into, exchangeable for or otherwise confirming the registered holder to receive Common Stock), (ii) subdivide the outstanding Common Stock into a greater number of shares of Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares of Common Stock, the number of shares of Common Stock purchasable upon exercise of any Warrant immediately prior to the record data fixing shareholders to be affected by such event shall be adjusted so that the Registered Holder shall thereafter be entitled to receive that kind and number of shares of Common Stock or other securities of the Bank that the Registered Holder would have owned or have been entitled to receive after the happening of any of the events described above, had the Warrant been exercised immediately prior to the happening of such event or any record sale with respect thereto. An adjustment made pursuant to this paragraph 2.1.1 shall become effective (i) immediately after the record date in the case of a dividend and (ii) immediately after the effective date in the case of a subdivision or combination. If the Bank shall take a record of the holders of its Common Stock for the purpose of outfitting them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in the number of shares of Common Stock issuable upon exercise of a Warrant then in effect shall be required by reason of the taking of such record. No adjustment shall be made under this Paragraph 3.1.1 unless such adjustment would require an increase or decrease of at least one percent in the number of shares of Common Stock or other securities of the Bank that the Registered Holder would have owned or have been entitled to receive had the Warrant been exercised, provided however, that any adjustments which by reason of this sentence are not required to be made shall be carried forward and taken into account in any subsequent adjustments and all calculations shall be made to the nearest one-hundredth of a share. 3.1.2 REORGANIZATION OR RECLASSIFICATION. In case of any capital reorganization or any reclassification of the capital stock of the Bank (whether pursuant to a merger or condition or otherwise), each Warrant shall thereafter be exercisable for the number of shares of stock or other securities or property receivable upon such capital reorganization or reclassification of capital stock as the case may be by a holder of the number of shares of Common Stock into which the Warrant was exercisable immediately prior to such capital reorganization or reclassification of capital stock; and, in any case, appropriate adjustment shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the Registered Holder or any Warrant to the end that the provisions set forth herein shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other securities or property thereafter deliverable upon the exercise of the Warrant. 3.1.3 NOTICE. In the event that the Bank shall propose at any time to effect any transaction of the type described in Subsections 3.1.1 and 3.1.2 above or take any similar extraordinary corporate action affecting the Bank's capital stock (including but not limited to the transfer of substantially all of the Bank's assets), then, in connection with each such event, the Bank shall demand notice thereof to all Registered Holders at least 20 days prior to the earlier of (i) the date on which such event is to become effective, (ii) the record date for the shareholders affected by such event, or (iii) the first date on which the Bank intends to affect any such transaction, in each case specifying in reasonable detail what the transaction or event consists of and, if applicable, the aggregate amount or value of any cash or property proposed to be distributed, paid, purchased or received by the Bank in connection therewith. 3.1.4 ADJUSTMENT OF EXERCISE PRICE. The C Warrant Exercise Price per share of Common Stock purchasable upon exercise of any C Warrant shall be subject to adjustment from time to time as follows: upon each adjustment of the number of shares of Common Stock purchasable pursuant to this Section 3.1. the C Warrant Exercise Price shall be reduced or increased, as the case may be, to a price determined by dividing the aggregate C Warrant Exercise Price of all C Warrant Shares in effect prior to such adjustment by the legal maximum number of C Warrant Shares purchasable upon the exercise of all C Warrants immediately after such adjustment. The D Warrant Exercise Price per share of Common Stock purchasable upon exercise of any D Warrant shall be subject to adjustment from time to time as follows: upon each adjustment of the number of shares of Common Stock purchasable pursuant to this Section 2.1. the D Warrant Exercise Price shall be reduced or increased, as the case may be, to a price determined by dividing the aggregate D Warrant Exercise Price of all D Warrant Shares in effect prior to such adjustment by the total maximum number of D Warrant Shares purchasable upon the exercise of all D Warrants immediately after such adjustment. 3.2. CONSOLIDATION, MERGER, OR SALE OF ASSETS. In addition to any other rights of Registered Holders set forth herein. In case of any consolidation of the Bank with, or merger of the Bank into, any other Person, any merger of another Person into the Bank (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) or any sale or transfer of all or substantially all of the assets of the Bank to the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, all Registered Holders shall have the right thereafter to exercise their Warrants for the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock for which their Warrants may have been exercised immediately prior to such consolidation, merger, sale or transfer. Adjustment for events subsequent to the effective date of such a consolidation, merger and sale of assets shall be as nearly equivalent on may be practicable to the adjustments provided for in this Agreement. In any such event, effective provisions shall be made in the certificate or exercises of Incorporation of the resulting or surviving corporation. In any contract of sale, conveyance, lease or transfer, or otherwise so that the provisions set forth herein for the protection of the rights of the Registered Holders shall thereafter continue to be applicable; and any such resulting or surviving corporation shall separately assume the obligation to deliver, upon exercise, such shares of stock, other securities, cash and property. The provisions of this Paragraph 3.2. shall similarily apply to successive consolidations, mergers, sales, leases or transfers. 3.3. FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon the exercise of any Warrant. If any fraction of a share of Common Stock would be issuable upon the exercise of a Warrant, the Bank shall round down the number of shares of Common Stock to be issued upon exercise of such Warrant to the nearest lower whole number of shares of Common Stock. EXERCISE SUBSCRIPTION FORM TO BE EXECUTED BY THE REGISTERED HOLDER DESIRING TO EXERCISE THE WITHIN WARRANTS OF BANK OF COMMERCE Capitalized terms used but not defined herein shall have the meaning assigned to them in the within Warrant Certificate and in the Warrant Agreement between Bank of Commerce and Chemical Trust Company of California dated as of July 25, 1995. The undersigned Registered Holder hereby exercises _________________ Warrants evidencing the right to purchase shares of the Common Stock covered by the within Warrant Certificate, according to the conditions thereof. The undersigned Registered Holder herewith makes payment in full of the Excercise Price on such shares of $ _____________________ in cash or by certified or official bank check or bank cashier's check payable to the order of the Bank, or by any combination of such cash or check. [The undersigned Registered Holder has hereby exercised fewer than all the Warrants evidenced by the within Warrant Certificate and, therefore, requests that a new Warrant Certificate evidencing the remaining Warrants evidenced by the within Warrant Certificate be issued in the name of and delivered to the Registered Holder](1) NOTE: EXERCISE MAY BE MADE FOR A MINIMUM OF THE LESSER OF 100 SHARES OR THE FULL NUMBER OF SHARES AS TO WHICH EXERCISE MAY BE MADE UNDER THIS WARRANT CERTIFICATE. By: [ ] --------------------------------------- Name: Title: Address: ----------------------------------- ----------------------------------- Dated: ------------------ - -------------- (1) To be included only if the Registered Holder is exercising fewer than as of the Warrants evidenced by the within Warrant Certificate. ASSIGNMENT FORM TO BE EXECUTED BY THE REGISTERED HOLDER DESIRING TO EFFECT A TRANSFER OF THE WITHIN WARRANTS OF BANK OF COMMERCE The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian TEN ENT - as tenants by the entireties ---------- -------- JT TEN - as joint tenants with right of (Cust) (Minor) survivorship and not as tenants in common under Uniform Gifts to Minors Act ---------------------------------------- (State) Additional abbreviations may also be used, though not in the above list. FOR VALUE RECEIVED, in accordance with the Warrant Agreement between BANK OF COMMERCE and Chemical Mellon Shareholder Services, dated as of July 25, 1995, and the Securities Act of 1933, as amended, if applicable, the undersigned hereby sells, assigns and transfers unto - ----------------------------------------------------------------------------------------------------- (Name) - ----------------------------------------------------------------------------------------------------- (Address) the right to purchase ________ Warrant Shares evidenced by the within Warrant Certificate, and does hereby irrevocably constitute and appoint - ----------------------------------------------------------------------------------------------------- attorney to transfer the said right on the books of the Bank with full power of substitution. By: ----------------------------------------- Name: Title: Address -------------------------------- -------------------------------- Dated: -------------------- - -------------------------------------------------------------------------------- NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR A CHANGE WHATSOEVER AND MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO SEC RULE 17Ad15.
EX-5.1 3 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-3 File number 333-______ 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-3 (the "Registration Statement") relating to the issuance by the Company of up to 378,945 shares (the "Shares") of Common Stock of the Company, par value $ 1.25 per share. The Shares are to be issued upon the exercise of the Bank of Commerce "D" Common Stock Purchase Warrants (the "Warrants") which are to be assumed by the Company in connection with the merger of Bank of Commerce with and into a subsidiary of the Company (the "Merger") as described in the Form S-4 Registration Statement, file number 333-75603. 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 Exhibit 5.1 Company and of public officials. We have also assumed that the Shares will be issued in connection with the Merger as described in the Form S-4 Registration Statement. Based on the foregoing, we are of the opinion that: The Shares to be issued by the Company upon the exercise of the Warrants have been duly authorized and, when issued in accordance with the terms of the Warrant Agreement by and between Bank of Commerce and Chemical Mellon Shareholder Services L.L.C. as warrant agent, dated as of July 25, 1995, will be validly issued, fully paid and nonassessable. 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-23.2 4 EXHIBIT 23.2 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of U.S. Bancorp for the registration of 378,945 shares of its common stock and to the incorporation by reference therein of our report dated January 20, 1999, with respect to the consolidated financial statements of U.S. Bancorp included in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young Minneapolis, Minnesota April 30, 1999 EX-24.1 5 EXHIBIT 24.1 PAGE 1 OF 2 OF POWER OF ATTORNEY TO U.S. BANCORP REGISTRATION STATEMENT ON FORM S-3. POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Lee R. Mitau, Susan E. Lester and Terrance R. Dolan, 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 U.S. Bancorp, 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 April 20, 1999 - ------------------------- Executive Officer and John F. Grundhofer Director (principal executive officer) Executive Vice President and April 20, 1999 - ------------------------- Chief Financial Officer Susan E. Lester (principal financial officer) Senior Vice President and April 20, 1999 - ------------------------- Controller Terrance R. Dolan (principal accounting officer) /s/ Linda L. Ahlers Director April 20, 1999 - ------------------------- Linda L. Ahlers /s/ Harry L. Bettis Director April 20, 1999 - ------------------------- Harry L. Bettis /s/ Arthur D. Collins, Jr. Director April 20, 1999 - ------------------------- Arthur D. Collins, Jr. /s/ Peter H. Coors Director April 20, 1999 - ------------------------- Peter H. Coors PAGE 2 OF 2 OF POWER OF ATTORNEY TO U.S. BANCORP REGISTRATION STATEMENT ON FORM S-3. /s/ Robert L. Dryden Director April 20, 1999 - ------------------------- Robert L. Dryden /s/ Joshua Green III Director April 20, 1999 - ------------------------- Joshua Green III /s/ Delbert W. Johnson Director April 20, 1999 - ------------------------- Delbert W. Johnson /s/ Joel W. Johnson Director April 20, 1999 - ------------------------- Joel W. Johnson /s/ Jerry W. Levin Director April 20, 1999 - ------------------------- Jerry W. Levin /s/ Edward J. Phillips Director April 20, 1999 - ------------------------- Edward J. Phillips /s/ Paul A. Redmond Director April 20, 1999 - ------------------------- Paul A. Redmond /s/ Richard G. Reiten Director April 20, 1999 - ------------------------- Richard G. Reiten /s/ S. Walter Richey Director April 20, 1999 - ------------------------- S. Walter Richey /s/ Warren R. Staley Director April 20, 1999 - ------------------------- Warren R. Staley -----END PRIVACY-ENHANCED MESSAGE-----