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COMPOSITE COPY
(As filed 8/1/97 and
amended through 2/27/01)
RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. BANCORP
FIRST: The name of this corporation is U.S. Bancorp.
SECOND: The registered office of the corporation in the State of
Delaware is to be located at 1209 Orange Street in the City of Wilmington,
County of New Castle. The name of the registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any part of the
world in any capacity in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware, and the corporation
shall be authorized to exercise and enjoy all powers, rights and privileges
which corporations organized under the General Corporation Law of Delaware may
have under the laws of the State of Delaware as in force from time to time,
including without limitation all powers, rights and privileges necessary or
convenient to carry out all those acts and activities in which it may lawfully
engage.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have the authority to issue is 4,050,000,000, consisting of
50,000,000 shares of Preferred Stock of the par value of $1.00 each and
4,000,000,000 shares of Common Stock of the par value of $.01 each.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of each class of stock are
as follows:
The Board of Directors is expressly authorized at any time, and from
time to time, to provide for the issuance of shares of preferred stock in one or
more series, with such voting powers, full or limited, or without voting powers
and with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the resolution or resolutions providing for
the issue thereof adopted by the board of directors, subject to the limitations
prescribed by law and in accordance with the provisions hereof, including (but
without limiting the generality thereof) the following:
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(a) The designation of the series and the number of shares to
constitute the series.
(b) The dividend rate of the series, the conditions and dates upon
which such dividends shall be payable, the relation which such dividends shall
bear to the dividends payable on any other class or classes of stock, and
whether such dividends shall be cumulative or noncumulative.
(c) Whether the shares of the series shall be subject to redemption by
the corporation and, if made subject to such redemption, the times, prices and
other terms and conditions of such redemption.
(d) The terms and amount of any sinking fund provided for the purchase
or redemption of the shares of the series.
(e) Whether or not the shares of the series shall be convertible into
or exchangeable for shares of any other class or classes or of any other series
of any class or classes of stock of the corporation, and, if provision be made
for conversion or exchange, the times, prices, rates, adjustments and other
terms and conditions of such conversion or exchange.
(f) The extent, if any, to which the holders of the shares of the
series shall be entitled to vote with respect to the election of directors or
otherwise.
(g) The restrictions, if any on the issue or reissue of any additional
preferred stock.
(h) The rights of the holders of the shares of the series upon the
dissolution, liquidation, or winding up of the corporation.
Subject to the prior or equal rights, if any, of the preferred stock of
any and all series stated and expressed by the board of directors in the
resolution or resolutions providing for the issuance of such preferred stock,
the holders of common stock shall be entitled (i) to receive dividends when and
as declared by the board of directors out of any funds legally available
therefore, (ii) in the event of any dissolution, liquidation or winding up of
the corporation, to receive the remaining assets of the corporation, ratably
according to the number of shares of common stock held, and (iii) to one vote
for each share of common stock held. No holder of common stock shall have any
preemptive right to purchase or subscribe for any part of any issue of stock or
of securities of the corporation convertible into stock of any class whatsoever,
whether now or hereafter authorized.
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Pursuant to the authority conferred by this Article FOURTH, the
following series of Preferred Stock have been designated, each such series
consisting of such number of shares, with such voting powers and with such
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof as are stated
and expressed in the exhibit with respect to such series attached hereto as
specified below and incorporated herein by reference:
Exhibit A Adjustable Rate Cumulative Preferred Stock, Series
1990A
Exhibit B 8 1/8% Cumulative Preferred Stock, Series A
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) To fix, determine and vary from time to time the amount to be
maintained as surplus and the amount or amounts to be set apart as working
capital.
(b) To adopt, amend, alter or repeal by-laws of the corporation,
without any action on the part of the shareholders. The by-laws adopted by the
directors may be amended, altered, changed, added to or repealed by the
shareholders.
(c) To authorize and cause to be executed mortgages and liens, without
limit as to amount, upon the real and personal property of this corporation.
(d) To sell, assign, convey or otherwise dispose of a part of the
property, assets and effects of this corporation, less than the whole, or less
than substantially the whole thereof, on such terms and conditions as they shall
deem advisable, without the assent of the shareholders; and also to sell,
assign, transfer, convey and otherwise dispose of the whole or substantially the
whole of the property, assets, effects, franchises and good will of this
corporation on such terms and conditions as they shall deem advisable, but only
pursuant to the affirmative vote of the holders of a majority in amount of the
stock then having voting power and at the time issued and outstanding, but in
any event not less than the amount required by law.
(e) All of the powers of this corporation, insofar as the same lawfully
may be vested by this certificate in the board of directors, are hereby
conferred upon the board of directors of this corporation.
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SIXTH: The affairs of the Corporation shall be conducted by a Board of
Directors. Except as otherwise provided by this Article Sixth, the number of
directors, not less than twelve (12) nor more than thirty (30), shall be fixed
from time to time by the Bylaws. Commencing with the annual election of
directors by the stockholders in 1986, the directors shall be divided into three
classes: Class I, Class II and Class III, each such class, as nearly as
possible, to have the same number of directors. Such classified directors may be
removed by vote of the stockholders only for cause. The term of office of the
initial Class I directors shall expire at the annual election of directors by
the stockholders in 1987, the term of office of the initial Class II directors
shall expire at the annual election of directors by the stockholders in 1988,
and the term of office of the initial Class III directors shall expire at the
annual election of directors by the stockholders in 1989. At each annual
election of directors by the stockholders held after 1985, the directors chosen
to succeed those whose terms have then expired shall be identified as being of
the same class as the directors they succeed and shall be elected by the
stockholders for a term expiring at the third succeeding annual election of
directors. In all cases, directors shall hold office until their respective
successors are elected by the stockholders and have qualified.
In the event that the holders of any class or series of stock of the
Corporation having a preference as to dividends or upon liquidation of the
Corporation shall be entitled, by a separate class vote, to elect directors as
may be specified pursuant to Article Fourth, then the provisions of such class
or series of stock with respect to their rights shall apply. The number of
directors that may be elected by the holders of any such class or series of
stock shall be in addition to the number fixed pursuant to the preceding
paragraph of this Article Sixth. Except as otherwise expressly provided pursuant
to Article Fourth, the number of directors that may be so elected by the holders
of any such class or series of stock shall be elected for terms expiring at the
next annual meeting of stockholders and without regard to the classification of
the remaining members of the Board of Directors and vacancies among directors so
elected by the separate class vote of any such class or series of stock shall be
filled by the remaining directors elected by such class or series, or, if there
are no such remaining directors, by the holders of such class or series in the
same manner in which such class or series initially elected a director.
If at any meeting for the election of directors, more than one class of
stock, voting separately as classes, shall be entitled to elect one or more
directors and there shall be a quorum of only one such class of stock, that
class of stock shall be entitled to elect its quota of directors notwithstanding
the absence of a quorum of the other class or classes of stock.
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Vacancies and newly created directorships resulting from an increase in
the number of directors, subject to the provision of Article Fourth, shall be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, and such directors so chosen shall hold
office until the next election of the class for which such directors shall have
been chosen, and until their successors shall be elected and shall have
qualified.
Notwithstanding any other provisions of this Amended Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law), the provisions of this Article Sixth
may not be amended or repealed (except an amendment hereto to reduce the maximum
number of directors of the Corporation to not less than the greater of (A) the
number of directors then in office and (B) twenty-four (24)) unless such action
is approved by the affirmative vote of the holders of not less than eighty
percent (80%) of the voting power of all of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, considered for purposes of this Article Sixth as a single class.
SEVENTH: No action required to be taken or which may be taken at any
annual meeting or special meeting of stockholders may be taken without a
meeting, and the power of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
EIGHTH: (a) In addition to the requirements of the provision of any
series of preferred stock which may be outstanding, and whether or not a vote of
the stockholders is otherwise required, the affirmative vote of the holders of
not less than eighty percent (80%) of the voting power of the Voting Stock shall
be required for the approval or authorization of any Business Transaction with a
Related Person, or any Business Transaction in which a Related Person has an
interest (other than only a proportionate interest as a stockholder of the
Corporation); provided, however, that the eighty percent (80%) voting
requirement shall not be applicable if (i) the Business Transaction is Duly
Approved by the Continuing Directors, or (ii) all of the following conditions
are satisfied:
(A) the Business Transaction is a merger or consolidation or sale of
substantially all of the assets of the corporation, and the aggregate amount of
cash and the fair market value of the property, securities or other
consideration to be received per share (on the date of effectiveness of such
merger or consolidation or on the date of distribution to stockholders of the
Corporation of the proceeds from such sale of assets) by holders of common stock
of the corporation (other than such Related Person) in connection with such
Business
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Transaction is at least equal in value to such Related Person's Highest Common
Stock Purchase Price;
(B) after such Related Person has become the Beneficial Owner of not
less than ten percent (10%) of the voting power of the Voting Stock and prior to
the consummation of such Business Transaction, such Related Person shall not
have become the Beneficial Owner of any additional shares of Voting Stock or
securities convertible into Voting Stock, except (i) as a part of the
transaction which resulted in such Related Person becoming the Beneficial Owner
of not less than ten percent (10%) of the voting power of the Voting Stock, or
(ii) as a result of a pro rata stock dividend or stock split; and
(C) prior to the consummation of such Business Transaction, such
Related Person shall not have, directly or indirectly, (i) received the benefit
(other than only a proportionate benefit as a stockholder of the Corporation) of
any loans, advances, guarantees, pledges or other financial assistance or tax
credits provided by the corporation or any of its subsidiaries, (ii) caused any
material change in the corporation's business or equity capital structure,
including, without limitation, the issuance of shares of capital stock of the
corporation or (iii) except as Duly Approved by the Continuing Directors, caused
the corporation to fail to declare and pay quarterly cash dividends on the
outstanding common stock on a per share basis at least equal to the cash
dividends being paid thereon by the corporation immediately prior to the date on
which the Related Person became a Related Person.
(b) For the purpose of this Article Eighth:
(i) The term "Business Transaction" shall mean (a) any merger or
consolidation involving the corporation or a subsidiary of the corporation, (b)
any sale, lease, exchange, transfer or other disposition (in one transaction or
a series of related transactions), including, without limitation, a mortgage or
any other security device, of all or any Substantial Part of the assets either
of the corporation or of a subsidiary of the corporation, (c) any sale, lease,
exchange, transfer or other disposition (in one transaction or a series of
related transactions) of all or any Substantial Part of the assets of an entity
to the corporation or a subsidiary of the corporation, (d) the issuance, sale,
exchange, transfer or other disposition (in one transaction or a series of
related transactions) by the corporation or a subsidiary of the corporation of
any securities of the corporation or any subsidiary of the corporation having an
aggregate fair market value of $100 million or more, (e) any recapitalization or
reclassification of the securities of the Corporation (including, without
limitation, any reverse stock split) or other transaction that would have the
effect of increasing the voting power of a Related Person or reducing the number
of shares of each class of Voting
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Securities outstanding, (f) any liquidation, spinoff, splitoff, splitup or
dissolution of the corporation, and (g) any agreement, contract or other
arrangement providing for any of the transactions described in this definition
of Business Transaction.
(ii) The term "Related Persons" shall mean and include (a) any
individual, corporation, partnership, group, association or other person or
entity which, together with its Affiliates and Associates, is the Beneficial
Owner of not less than ten percent (10%) of the voting power of the Voting Stock
or was the Beneficial Owner of not less than ten percent (10%) of the voting
power of the Voting Stock (x) at the time the definitive agreement providing for
the Business Transaction (including any amendment thereof) was entered into, (y)
at the time a resolution approving the Business Transaction was adopted by the
Board of Directors of the Corporation or (z) as of the record date for the
determination of stockholders entitled to notice of and vote on, or consent to,
the Business Transaction, and (b) any Affiliate or Associate of any such
individual, corporation, partnership, group, association or other person or
entity; provided, however, and notwithstanding anything in the foregoing to the
contrary, the term "Related Person" shall not include the corporation, a
wholly-owned subsidiary of the corporation, any employee stock ownership or
other employee benefit plan of the corporation or any wholly-owned subsidiary of
the corporation, or any trustee of, or fiduciary with respect to, any such plan
when acting in such capacity.
(iii) The term "Beneficial Owner" shall be defined by reference to Rule
13d-3 under the Securities Exchange Act of 1934, as in effect on January 16,
1986; provided, however, that any individual, corporation, partnership, group,
association or other person or entity which has the right to acquire any Voting
Stock at any time in the future, whether such right is contingent or absolute,
pursuant to any agreement, arrangement or understanding or upon exercise of
conversion rights, warrants or options, or otherwise, shall be deemed the
Beneficial Owner of Voting Stock.
(iv) The term "Highest Common Stock Purchase Price" shall mean the
highest amount of consideration paid by such Related Person for a share of
Common Stock of the Corporation (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) in the transaction which resulted in such
Related Person becoming a Related Person or within one year prior to the date
such Related Person became a Related Person, whichever is higher; provided,
however, that the Highest Common Stock Purchase Price shall be appropriately
adjusted to reflect the occurrence of any reclassification, recapitalization,
stock split, reverse stock split or other similar corporate readjustment in the
number of outstanding shares of common stock of the
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corporation between the last date upon which such Related Person paid the
Highest Common Stock Purchase Price to the effective date of the merger or
consolidation or the date of distribution to stockholders of the corporation of
the proceeds from the sale of substantially all of the assets of the corporation
referred to in subparagraph (A) of Section 1 of this Article Eighth.
(v) The term "Substantial Part" shall mean more than twenty percent
(20%) of the fair market value of the total assets of the entity in question, as
reflected on the most recent consolidated balance sheet of such entity existing
at the time the stockholders of the corporation would be required to approve or
authorize the Business Transaction involving the assets constituting any such
Substantial Part.
(vi) In the event of a merger in which the corporation is the surviving
corporation, for the purpose of subparagraph (A) of Section 1 of this Article
Eighth, the phrase "property, securities or other consideration to be received"
shall include, without limitation, Common Stock of the Corporation retained by
its stockholders (other than such Related Person).
(vii) The term "Voting Stock" shall mean all outstanding shares of
capital stock of the corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article Eighth as one class.
(viii) The term "Preferred Stock" shall mean each class or series of
capital stock which may from time to time be authorized in or by Article Fourth
of the Amended and Restated Certificate of Incorporation which is not designated
as "Common Stock".
(ix) The term "Continuing Director" shall mean a director who either
was a member of the Board of Directors of the corporation on April 24, 1986 or
who became a director of the corporation subsequent to such date and whose
election, or nomination for election by the corporation's stockholders, was Duly
Approved by the Continuing Directors then on the Board either by a specific vote
or by approval of the proxy statement issued by the corporation on behalf of the
Board of Directors in which such person is named as nominee for director,
without due objection to such nomination; provided, however, that in no event
shall a director be considered a "Continuing Director" if such director is a
Related Person and the Business Transaction to be voted upon is with such
Related Person or is one in which such Related Person has an interest (other
than only a proportionate interest as a stockholder of the corporation).
(x) The term "Duly Approved by the Continuing Directors" shall mean an
action approved by the vote of at least a majority of the Continuing Directors
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then on the Board, except, if the votes of such Continuing Directors in favor of
such action would be insufficient to constitute an act of the Board of Directors
(if a vote by the entire Board of Directors were to have been taken), then such
term shall mean an action approved by the unanimous vote of the Continuing
Directors so long as there are at least three Continuing Directors on the Board
at the time of such unanimous vote.
(xi) The term "Affiliate", used to indicate a relationship to a
specified person, shall mean a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, such specified person.
(xii) The term "Associate", used to indicate a relationship with a
specified person, shall mean (A) any Corporation, partnership or other
organization of which such specified person is an officer or partner (B) any
trust or other estate in which such specified person has a substantial
beneficial interest or as to which such specified person serves as trustee or in
a similar fiduciary capacity, (C) any relative or spouse of such specified
person, or any relative of such spouse, who has the same home as such specified
person or who is a director or officer of the Corporation or any of its
subsidiaries, and (D) any person who is a director, officer or partner of such
specified person or of any corporation (other than the corporation or any
wholly-owned subsidiary of the corporation), partnership or other entity which
is an Affiliate of such specified person.
(c) For the purpose of this Article Eighth, so long as Continuing
Directors constitute at least two-thirds of the entire Board of Directors, the
Board of Directors shall have the power to make a good faith determination, on
the basis of information known to them, of: (i) the number of shares of Voting
Stock of which any person is the Beneficial Owner, (ii) whether a person is a
Related Person or is an Affiliate or Associate of another, (iii) whether a
person has an agreement, arrangement or understanding with another as to the
matters referred to in the definition of Beneficial Owner herein, (iv) whether
the assets subject to any Business Transaction constitute a Substantial Part,
(v) whether any Business Transaction is with a Related Person or is one in which
a Related Person has an interest (other than only a proportionate interest as a
stockholder of the corporation), (vi) whether a Related Person has, directly or
indirectly, received the benefits or caused any of the changes referred to in
subparagraph (C) of Section 1 of this Article Eighth, and (vii) such other
matters with respect to which a determination is required under this Article
Eighth; and such determination by the Board of Directors shall be conclusive and
binding for all purposes of this Article Eighth.
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(d) Nothing contained in this Article Eighth shall be construed to
relieve any Related Person of any fiduciary obligation imposed by law.
(e) The fact that any Business Transaction complies with the provisions
of Section 1 of this Article Eighth shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or any
member thereof, to approve such Business Transaction or recommend its adoption
or approval to the stockholders of the corporation.
(f) Notwithstanding any other provisions of this Amended and Restated
Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding that a lesser percentage may be specified by law), the
provisions of this Article Eighth may not be repealed or amended in any respect,
unless such action is approved by the affirmative vote of the holders of not
less than eighty percent (80%) of the Voting Stock.
NINTH: No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article Ninth
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article Ninth shall apply to or have any effect
on the liability or alleged liability of any director of the corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
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Exhibit A
U.S. Bancorp
Adjustable Rate Cumulative Preferred Stock, Series 1990A
(a) Designation. The designation of the series of Preferred
Stock created by this resolution shall be "Adjustable Rate Cumulative Preferred
Stock, Series 1990A" (hereinafter referred to as this "Series") and the number
of shares constituting this Series shall be twelve thousand seven hundred fifty
(12,750). The number of authorized shares of this Series may be increased or
reduced by further resolution duly adopted by the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of the
Corporation and by the filing of a certificate pursuant to the provisions of the
General Corporation Law of the State of Delaware stating that such reduction or
increase, as the case may be, has been so authorized.
(b) Dividends. (1) Dividend periods ("Dividend Periods") shall
commence on January 1, April 1, July 1, and October 1 in each year and shall end
on and include the day next preceding the first day of the next Dividend Period.
Such dividends shall be cumulative from the date of original issue of shares of
this Series and shall be payable, when and as declared by the Board of Directors
or by any duly authorized committee of the Board of Directors of the
Corporation, on March 31, June 30, September 30 and December 31 of each year,
commencing [insert first dividend payment date]. Each such dividend shall be
paid to the holders of record of shares of this Series as they appear on the
stock register of the Corporation on such record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed by the Board of Directors
of the Corporation or by any duly authorized committee of the Board of Directors
of the Corporation. Dividends on account of arrears for any past Dividend
Periods may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of Directors of
the Corporation or by any duly authorized committee of the Board of Directors of
the Corporation.
(2) No full dividends shall be declared or paid or set apart
for payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on the shares
of this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not paid
in full, as aforesaid, upon the shares of this Series and any other Preferred
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Stock ranking on a parity as to dividends with this Series, all dividends
declared upon shares of this Series and any other Preferred Stock ranking on a
parity as to dividends with this Series shall be declared pro rata so that the
amount of dividends declared per share on this Series and such other Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the shares of this Series and such other Preferred Stock
bear to each other. Except as provided in the preceding sentence, unless full
cumulative dividends on all outstanding shares of this Series shall have been
paid or declared and set aside for payment for the then-current dividend payment
period and all past dividend payment periods, no dividends (other than a
dividend in the Common Stock, par value $1.25 per share, of the Corporation (the
"Common Stock"), or another stock ranking junior to this Series as to dividends
and upon liquidation) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or upon any other
stock of the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock or any other stock of
the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for stock of the Corporation ranking junior to
this Series as to dividends and upon liquidation). Holders of shares of this
Series shall not be entitled to any dividend, whether payable in cash, property
or stock, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments which may be in arrears.
(3) Dividends payable on this Series for each full Dividend
Period shall be computed by dividing the dividend rate for such Dividend Period
(stated on an annualized basis) by four (4) and applying such rate against the
liquidation preference per share of this Series. Dividends payable on this
Series for any period less than a full Dividend Period, including the Initial
Dividend Period (as defined in Section (c) below), shall be computed on the
basis of 30-day months, a 360-day year, and the actual number of days elapsed in
the period.
(c) Dividend Rate. (1) The dividend rate on the shares of this
Series shall be: (i) for the period (the "Initial Dividend Period") from the
date of original issue thereof to and including [insert first dividend payment
date], [insert rate for Initial Dividend Period]% per annum of the liquidation
preference thereof (excluding any accrued but unpaid dividends) and (ii) for
each Dividend Period thereafter a rate per annum of the liquidation preference
thereof (excluding any accrued but unpaid dividends) equal to the Applicable
Rate (as
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defined in paragraph (2) of this Section (c)) in respect of such Dividend
Period, in each case, as adjusted as described under paragraph 9 of this Section
(c).
(2) Except as provided below in this paragraph, the
"Applicable Rate" for any Dividend Period shall be (a) [insert amount]% greater
than (b) the highest of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate or the Thirty Year Constant Maturity Rate (each as hereinafter defined) for
such Dividend Period. If the Corporation determines in good faith that for any
reason one or more of such rates cannot be determined for any Dividend Period,
then the Applicable Rate for such Dividend Period shall be [insert amount]%
greater than the higher of whichever of such rates can be so determined. If the
Corporation determines in good faith that for any reason none of such rates can
be determined for any Dividend Period, then the Applicable Rate in effect for
the preceding Dividend Period shall be continued for such Dividend Period.
Anything herein to the contrary notwithstanding, the Applicable Rate for any
Dividend Period shall in no event be less than [insert minimum rate]% per annum.
(3) Except as provided below in this paragraph, the "Treasury
Bill Rate" for each Dividend Period shall be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period (as defined below)) for three-month U.S. Treasury
bills, as published weekly by the Federal Reserve Board during the Calendar
Period immediately prior to the last ten calendar days immediately preceding the
first day of the Dividend Period for which the dividend rate on this Series is
being determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate shall be published during
the relevant Calendar Period) for three-month U.S. Treasury bills, as published
weekly during such Calendar Period by any Federal Reserve Bank or any U.S.
Government department or agency selected by the Corporation. In the event that a
per annum market discount rate for three-month U.S. Treasury bills shall not be
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate shall be published during
the relevant Calendar Period) for all of the U.S. Treasury bills then having
maturities of not less than 80 nor more than 100 days, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish during such rates, by any Federal Reserve Bank
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or by any U.S. Government department or agency selected by the Corporation. In
the event that the Corporation determines in good faith that for any reason no
such U.S. Treasury bill rates are published as provided above during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be
the arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of marketable
noninterest bearing U.S. Treasury securities with a maturity of not less than 80
nor more than 100 days from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities selected by the
Corporation. In the event that the Corporation determines in good faith that for
any reason the Corporation cannot determine the Treasury Bill Rate for any
Dividend Period as provided above in this paragraph, the Treasury Bill Rate for
such Dividend Period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days, as chosen and quoted daily
for each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Dividend Period shall be the arithmetic average
of the two most recent weekly per annum Ten Year Average Yields (as defined
below) (or the one weekly per annum Ten Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period), as published
weekly by the Federal Reserve Board during the Calendar Period immediately prior
to the last ten calendar days immediately preceding the first day of the
Dividend Period for which the dividend rate on this Series is being determined.
In the event that the Federal Reserve Board does not publish such weekly per
annum Ten Year Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic average
of the two most recent weekly per annum Ten Year Average Yields (or the one
weekly per annum Ten Year Average Yield, if only such Yield shall be published
during the relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that a per annum Ten Year
Average Yield shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average yield to
maturity, if only one such yield shall be
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published during the relevant Calendar Period) for all of the actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities (as defined below)) then having maturities of not less than eight nor
more than twelve years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that the Corporation determines in good faith
that for any reason the Corporation cannot determine the Ten Year Constant
Maturity Rate for any Dividend Period as provided above in this paragraph, then
the Ten Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon the
closing bids during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight nor more than
twelve years from the date of each such quotation, as chosen and quoted daily
for each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the Corporation.
(5) Except as provided below in this paragraph, the "Thirty
Year Constant Maturity Rate" for each Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Thirty Year Average Yields (as
defined below) (or the one weekly per annum Thirty Year Average Yield, if only
one such Yield shall be published during the relevant Calendar Period), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days immediately preceding the first
day of the Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish such a
weekly per annum Thirty Year Average Yield during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Thirty Year Average
Yields (or the one weekly per annum Thirty Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that a
per annum Thirty Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Thirty Year Constant
Maturity Rate for such Dividend Period will be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the one weekly per
annum average yield to maturity, if only one such yield shall be published
during the relevant Calendar Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
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Securities) then having maturities of not less than twenty-eight nor more than
thirty years, as published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected by
the Corporation. In the event that the Corporation determines in good faith that
for any reason the Corporation cannot determine the Thirty Year Constant
Maturity Rate for any Dividend Period as provided above in this paragraph, then
the Thirty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon the
closing bids during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than twenty-eight nor
more than thirty years from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities selected by the
Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate shall each be rounded to the
nearest five one-hundredths of a percentage point.
(7) For purposes of paragraphs (3) through (6) of this Section
(c), the term
(i) "Calendar Period" means 14 calendar days;
(ii) "Special Securities" means securities which can,
at the option of the holder, be surrendered at face value in payment of
any Federal estate tax or which provide tax benefits to the holder and
are priced to reflect such tax benefits or which were originally issued
at a deep or substantial discount;
(iii) "Ten Year Average Yield" means the average
yield to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of ten
years); and
(iv) "Thirty Year Average Yield" means the average
yield to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of thirty
years).
(8) The Corporation will calculate the Applicable Rate with
respect to each Dividend Period as promptly as practicable prior to the
commencement thereof according to the appropriate method described herein. The
Corporation will cause notice of such Applicable Rate to be enclosed with the
dividend payment checks next mailed to the holders of shares of this Series.
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(9) If, after the day on which shares of this Series are first
issued, one or more amendments to the Internal Revenue Code of 1986, as amended
(the "Code"), are enacted that change the percentage specified in Section
243(a)(1) of the Code or any successor provision (the "Dividends Received
Percentage"), the amount of each dividend payable per share of this Series after
the effective date of any such change shall be adjusted by multiplying the
amount of dividends determined as described under Section (c)(1) (before
adjustment) by a factor, which shall be the number determined in accordance with
the following formula, and rounding the result to the nearest cent:
1 - FTR (1 - OLD)
-----------------
1 - FTR (1 - DRP)
For the purposes of the above formula, "FTR" means the federal
income tax rate applicable to corporations under the Code as in effect on the
date shares of this Series are first issued, "OLD" means the Dividend Received
Percentage as in effect on such date and "DRP" means the Dividends Received
Percentage applicable to the dividend in question. Notwithstanding the foregoing
provisions, in the event that, with respect to any such amendment, the
Corporation shall receive either an unqualified opinion of independent
recognized tax counsel or a private letter ruling or similar form of
authorization from the Internal Revenue Service to the effect that such an
amendment would not apply to dividends payable on this Series, then any such
amendment shall not result in the adjustment provided for pursuant to this
Section (c)(9). For purposes of these Resolutions, all references to dividends
shall mean dividends as adjusted pursuant to the provisions of this Section
(c)(9). The Corporation's calculations of the dividends payable as so adjusted
and as certified accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the
Corporation, shall be final and not subject to review.
In the event that the amount of dividends payable per share of
this Series shall be adjusted pursuant to the provisions of the foregoing
paragraph, the Corporation shall cause notice of each such adjustment, together
with the Applicable Rate with respect to such dividend, to be included with the
dividend payment checks next mailed to the holders of this Series, each as
provided in Section (c)(8) of these Resolutions.
(d) Redemption.
(1) Except as set forth in Section (d)(2), the shares of this
Series shall not be redeemable prior to the date that is the tenth anniversary
of the day on which shares of this Series are first issued. The Corporation, at
its option, may redeem shares of this Series, as a whole or in part, at any time
or from time to time on or after such date, at a redemption price equal to the
aggregate
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liquidation value of the shares so redeemed, plus, in each case, accrued and
unpaid dividends thereon to the date fixed for redemption.
(2) Notwithstanding the provisions of Section (d)(1), in the
event that an amendment to the Code is enacted that would effect a change in the
Dividends Received Percentage so as to result in the amount of dividend payable
being adjusted upward pursuant to Section (c)(9), the Corporation, at its
option, may redeem the issued and outstanding shares of this Series as a whole,
at any time after the effective date of any such change in the Dividends
Received Percentage, at a redemption price of $100,000 per share, plus, in each
case, an amount equal to accrued and unpaid dividends (whether or not declared)
to the date fixed for redemption.
(3) In the event that fewer than all the outstanding shares of
this Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors of the Corporation or any duly authorized
committee of the Board of Directors of the Corporation and the shares to be
redeemed shall be determined by lot or pro rata as may be determined by the
Board of Directors of the Corporation or any duly authorized committee of the
Board of Directors of the Corporation or by any other method as may be
determined by the Board of Directors of the Corporation or any duly authorized
committee of the Board of Directors of the Corporation in its sole discretion to
be equitable, provided that such method satisfies any applicable requirements of
any securities exchange on which this Series is listed.
(4) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation. Each such
notice shall state: (i) the redemption date; (ii) the number of shares of this
Series to be redeemed and, if fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be redeemed from such holder; (iii)
the redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on the redemption
date.
(5) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the applicable redemption price) dividends on the
shares of this Series so called for redemption shall cease to accrue, and said
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the applicable redemption price) shall cease. Upon
surrender in
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accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares shall
be redeemed by the Corporation at the applicable redemption price. In case fewer
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) Any shares of this Series which shall at any time have
been redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors of the Corporation or any duly authorized committee of the Board of
Directors of the Corporation.
(7) Notwithstanding the foregoing provisions of this Section
(d), in the event that full cumulative dividends on the shares of this Series
have not been paid, no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously redeemed, and the
Corporation shall not purchase or acquire any shares of this Series otherwise
than pursuant to a purchase or exchange offer made on the same terms to all
holders of outstanding shares of this Series.
(e) Conversion or Exchange. The holders of shares of this
Series shall not have any rights to convert such shares into or exchange such
shares for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
(f) Voting Rights. The shares of this Series shall not have
any voting powers either general or special, except as expressly required by
applicable law and except that:
(1) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or consent
of the holders of at least 66-2/3% of all of the shares of this Series at the
time outstanding, voting separately as a class, shall be required to authorize
any amendment of the Certificate of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any certificate of
designation or any similar document relating to any series of Preferred Stock)
which will adversely affect the powers, preferences, privileges or rights of
this Series;
(2) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or consent
of the holders of at least 66-2/3% of all of the shares of this Series and all
other series of
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shares of Preferred Stock ranking on a parity with the shares of this Series,
either as to dividends or upon liquidation, at the time outstanding, voting as a
single class without regard to series, shall be required to issue, authorize or
increase the authorized amount of, or to issue or authorize any obligation or
security convertible into or evidencing the right to purchase, any additional
class or series of stock ranking prior to the shares of this Series as to
dividends or upon liquidation; and
(3) If at the time of any annual meeting of stockholders for
the election of directors a default in preference dividends on the shares of
this Series shall exist, the number of directors constituting the Board of
Directors of the Corporation shall be increased by one, and the holders of the
shares of this Series shall have the right at such meeting, voting together as a
single class, to the exclusion of the holders of Common Stock, to elect one
director of the Corporation to fill such newly created directorship. Such right
shall continue until there are no dividends in arrears upon the shares of this
Series. Each director elected by the holders of shares of this Series (herein
called a "Preferred Director") shall continue to serve as such director for the
full term for which he shall have been elected, notwithstanding that prior to
the end of such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed except by, the
vote of the holders of record of the outstanding shares of this Series, voting
together as a single class, at a meeting of the stockholders, or of the holders
of shares of this Series, called for the purpose. So long as a default in any
preference dividends on the shares of this Series shall exist any vacancy in the
office of a Preferred Director may be filled by the vote of the holders of the
outstanding shares of this Series voting together as a single class, at a
meeting of the stockholders or of the holders of shares of this Series called
for the purpose. Whenever the term of office of the Preferred Director shall end
and a default in preference dividends shall no longer exist, the number of
directors constituting the Board of Directors of the Corporation shall be
reduced by one. For the purposes hereof, a "default in preference dividends" on
the shares of this Series shall be deemed to have occurred whenever the amount
of accrued but unpaid dividends on such shares shall be equivalent to six full
quarter-yearly dividends or more, and, having so occurred, such default shall be
deemed to exist thereafter until, but only until, all accrued dividends on all
such shares then outstanding shall have been paid to the end of the last
preceding dividend period. Notwithstanding anything contained in this
Certificate of Designation or any other Certificate of Designation, whether
currently in effect or adopted hereafter, or the Certificate of Incorporation,
as amended from time to time, to the contrary, the holders of shares of this
Series shall not be entitled to vote for the election of directors except as set
forth in this Section (f)(3).
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(g) Liquidation Rights.
(1) Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the holders of shares of this Series shall be
entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution of assets
shall be made on the Common Stock or on any other class of stock of the
Corporation ranking junior to this Series upon liquidation, the amount of
$100,000 per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(2) For the purposes of this Section (g), a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation shall not
include the consolidation or merger of the Corporation with or into any other
corporation, or any sale, lease or conveyance of all or any part of the property
or business of the Corporation.
(3) After the payment to the holders of the shares of this
Series of the full preferential amounts provided for in this Section (g), the
holders of this Series as such shall not be entitled to any further
participation in any distribution of assets of the Corporation.
(4) If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation
available for distribution to the holders of shares of this Series and of any
other shares of stock of the Corporation ranking on a parity with this Series
upon liquidation shall not be sufficient to pay in full all amounts to which
such holders are entitled pursuant to paragraph (1) of this Section (g), the
holders of shares of this Series and of such other shares shall share ratably in
any such distribution of assets of the Corporation in proportion to the full
respective preferential amounts to which they are entitled.
(h) Relative Rank. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
(1) Prior to the shares of this Series, either as to dividends
or upon liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in preference
or priority to the holders of shares of this Series;
(2) On a parity with shares of this Series, either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the holders of
such stock shall be entitled
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to the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in proportion
to their respective dividend rates or liquidation prices, without preference or
priority, one over the other, as between the holders of such stock and the
holders of shares of this Series; and
(3) Junior to shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
The outstanding shares of the Corporation's Adjustable Rate
Cumulative Preferred Stock, Series 1983A, the Corporation's Adjustable Rate
Cumulative Preferred Stock, Series 1989A, the Corporation's Adjustable Rate
Cumulative Preferred Stock, Series 1989B and the Corporation's Adjustable Rate
Cumulative Preferred Stock, Series 1990B shall be deemed to rank on a parity
with the outstanding shares of this Series with respect to the payment of
dividends and upon liquidation. The Series A Junior Participating Preferred
Stock shall be deemed to rank junior to this Series with respect to the payment
of dividends and upon liquidation.
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Exhibit B
U.S. Bancorp
8 1/8% Cumulative Preferred Stock, Series A
Section 1. Designation and Amount. The shares of the series shall be
designated as the 8 1/8% Cumulative Preferred Stock, Series A (the "Series"),
and the number of shares constituting the Series shall be 6,000,000. The number
of shares constituting the Series may be decreased from time to time by action
of the Board, but not below the number of shares of the Series then outstanding.
The Series shall rank senior to the common stock, par value $1.25 per share
("Common Stock"), of the Corporation and on a parity with the Adjustable Rate
Cumulative Preferred Stock, Series 1990A, par value $1.00 per share, of the
Corporation, as to dividends and upon liquidation.
Section 2. Dividends.
(a) Right to Receive Cash Dividends. The holders of shares of
the Series shall be entitled to receive when, as and if declared by the Board
out of assets legally available therefor, cumulative cash dividends, payable
quarterly in arrears on the fifteenth day of February, May, August and November
of each year (each quarterly period ending on any such date being hereinafter
referred to as a "dividend period") commencing on the First Payment Date (as
defined below) at the rate per annum set forth in Section 2(b). Each such
dividend shall be paid to the holders of record of shares of the Series as they
appear on the stock books of the Corporation on such record dates, not exceeding
45 days preceding the dividend payment dates therefor, as shall be fixed by the
Board. Dividends on shares of the Series shall be cumulative from the date of
original issuance of the shares of 8 1/8% Cumulative Preferred Stock, Series A
(the "Old Shares"), of U. S. Bancorp, an Oregon corporation ("Old USB") from
which the Series shares are converted in the merger (the "Merger") of Old USB
and the Corporation and shall include any arrearage on the Old Shares whether or
not there shall be assets legally available for the payment of such dividends;
provided, that if Old USB shall have set a record date with respect to the Old
Shares which record date is prior to the effective date of the Merger for a
dividend payment date after the effective date of the Merger, dividends in
respect of the Old Shares shall be deemed to accrue to such dividend payment
date notwithstanding the intervening occurrence of the Merger, and no dividends
shall accrue on the shares of the Series until the first date following such
dividend payment date.
The "First Payment Date" shall be (i) if Old USB shall have
set a record date with respect to the Old Shares which record date is prior to
the effective date of the Merger for a dividend payment date after the effective
date of the Merger, the next succeeding dividend payment date following such
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dividend payment date; provided, that the Corporation shall pay the dividend
declared on the Old Shares to the holders of record of Old Shares as of such
record date or (ii) if no such record date shall have been set by Old USB, the
first dividend payment date after the effective date of the Merger (it being the
intention that no dividend shall be payable with respect to both the Old Shares
and the shares of the Series with respect to the same period of time or that any
loss of dividends result from the conversion of Old Shares into shares of the
Series).
(b) Rate. The dividend rate per annum on the shares of the
Series shall be 8 1/8% of the liquidating preference of $25 per share.
(c) Restrictions. No full dividends shall be declared or paid
or set aside for payment on any stock of the Corporation ranking, as to
dividends, on a parity with or junior to the Series for any period unless full
cumulative dividends on the Series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set aside for
such payment on the Series for all dividend periods terminating on or prior to
the date of payment of such dividends. When dividends are not paid in full on
the Series and any other preferred stock of the Corporation ranking on a parity
as to dividends with the Series, all dividends declared or paid upon shares of
the Series and such other preferred stock shall be declared and paid pro rata so
that the amount of dividends declared and paid per share on the Series and such
other preferred stock shall in all cases bear to each other the same ratio that
accrued dividends per share (which in the case of noncumulative preferred stock
shall not include any accumulation in respect of unpaid dividends for prior
dividend periods) on shares of the Series and such other preferred stock bear to
each other. Except as provided in the preceding sentence, unless full cumulative
dividends on the Series have been paid or declared and set aside for payment, no
dividends (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common Stock or any
other stock of the Corporation ranking junior to the Series as to dividends and
upon liquidation) shall be declared or paid or set aside for payment or any
other distribution declared or made upon the Common Stock or any other stock of
the Corporation ranking junior to or on a parity with the Series as to dividends
or upon liquidation. No Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Series as to dividends or upon
liquidation shall be redeemed, purchased or otherwise acquired for any
consideration (and no moneys shall be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Series as to dividends and upon liquidation) unless, in each case,
the full cumulative dividends on the Series shall have been paid or declared and
set aside for payment. Holders of shares of the Series shall not be entitled to
any
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dividend, whether payable in cash, property or stock, in excess of the full
dividends on such shares. No interest shall be payable in respect of any
dividend payment which may be in arrears on the Series.
(d) Computation. Dividends payable on shares of the Series (i)
for any period other than a full dividend period, shall be computed on the basis
of a 360-day year consisting of twelve 30-day months and (ii) for each full
dividend period, shall be computed by dividing the annual dividend rate by four.
Any dividend payment made on shares of the Series shall first be credited
against the earliest accumulated but unpaid dividend due with respect to shares
of the Series.
Section 3. Redemption.
(a) Redemption Prices and Dates. The Corporation at its option
may redeem shares of the Series, at any time or from time to time, on or after
July 23, 1997, at a cash redemption price of $25 per share plus an amount equal
to any accrued and unpaid dividends (including any accumulated dividends)
thereon to and including the date fixed for redemption (the "Redemption Price").
Notwithstanding the foregoing, if at the time the Corporation
proposes to give a notice of redemption pursuant to Section 3(d), the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), or a
successor Federal agency responsible for supervision of bank holding companies
under the Bank Holding Company Act of 1956, as amended, requires that, in order
to be counted as "Tier 1" or "core" capital for capital adequacy purposes, bank
holding company preferred stock may not be redeemed without the prior approval
of the Federal Reserve Board or such successor agency, then the Corporation may
not redeem any shares of the Series or give a notice of redemption unless the
Federal Reserve Board or such successor agency shall have consented to such
redemption.
(b) Pro Rata Redemption. If fewer than all the outstanding
shares of the Series are to be redeemed, the shares to be redeemed shall be
selected pro rata as nearly as practicable or by lot as may be determined by the
Board or by any other method as the Board may determine to be fair and
appropriate.
(c) Restrictions on Redemption. Notwithstanding the foregoing,
if any quarterly dividend payable on shares of the Series shall be in arrears
and until all such dividends in arrears shall have been paid or declared and a
sum sufficient for the payment thereof set aside for payment, the Corporation
shall not redeem any shares of the Series unless all outstanding shares of the
Series are simultaneously redeemed and shall not purchase or
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otherwise acquire any shares of the Series except pursuant to a purchase or
exchange offer made on the same terms to all holders of shares of the Series for
the purchase of all outstanding shares thereof.
(d) Notice. Notice of any redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the redemption date to each record holder of the shares to be redeemed at the
address of such holder appearing in the stock books of the Corporation. Each
such notice shall state: (1) the redemption date, (2) the number of shares of
the Series to be redeemed, (3) the Redemption Price, (4) that dividends on the
shares to be redeemed shall cease to accrue on such redemption date and (5) the
place or places where certificates for such shares are to be surrendered for
payment of the Redemption Price. If fewer than all the shares of the Series held
by any holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares to be redeemed from such holder.
(e) Cessation of Dividends. If notice of redemption has been
given, from and after the redemption date for the shares of the Series called
for redemption (unless default shall be made by the Corporation in providing for
the payment of the Redemption Price of the shares so called for redemption),
dividends on the shares of the Series so called for redemption shall cease to
accrue and such shares shall no longer be deemed to be outstanding, and all
rights of the holders thereof (except the right to receive the Redemption Price)
shall cease. Upon surrender in accordance with such notice of the certificates
representing any shares of the Series so redeemed (properly endorsed or assigned
for transfer, if the Board shall so require and the notice shall so state), the
applicable Redemption Price shall be paid out of funds provided by the
Corporation. If fewer than all of the shares represented by any such certificate
are redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
(f) Status of Redeemed and Reacquired Shares. Shares of the
Series which have been redeemed or otherwise acquired by the Corporation shall
be retired and canceled and shall be restored to the status of authorized but
unissued shares of preferred stock, par value $1.00 per share, without
designation as to series, and may thereafter be issued, but not as shares of the
Series.
Section 4. Liquidation Rights.
(a) Payment on Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the
holders of shares of the Series shall be entitled to receive out of the assets
of the Corporation available for distribution to shareholders, before any
distribution of
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assets is made to holders of the Common Stock or any other class or series of
stock of the Corporation ranking junior to the Series upon liquidation, a
liquidating distribution in an amount equal to $25 per share plus an amount
equal to any accrued and unpaid dividends (including any accumulated dividends)
thereon to and including the date of such distribution. If, upon any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation available for distribution to the holders of shares of
the Series and any other preferred stock of the Corporation ranking as to any
such distribution on a parity with the Series shall be insufficient to pay in
full all amounts to which such holders are entitled, the holders of shares of
the Series and other preferred stock shall share ratably in such distribution of
assets of the Corporation in proportion to the sums that would be payable to
such holders if all sums were paid in full. After payment of the full amount of
the liquidation distribution plus accrued and unpaid dividends to which they are
entitled, the holders of shares of the Series shall have no right or claim to
any of the remaining assets of the Corporation.
(b) Definition. None of the consolidation or merger of the
Corporation into or with another corporation or corporations, or the sale, lease
or exchange of all or substantially all of the Corporation's assets, shall be
deemed a liquidation, dissolution or winding up of the Corporation within the
meaning of this Section 4.
Section 5. Voting Rights.
(a) Generally. Except as hereinafter provided or as expressly
required by applicable law, the holders of shares of the Series will not be
entitled to vote. When holders of shares of the Series are entitled to vote,
each holder shall be entitled to one vote per share.
(b) Arrearages. If at any time the equivalent of six quarterly
dividends, whether or not consecutive, payable on the Series are unpaid or not
declared and set aside for payment, the number of directors of the Corporation
shall be increased by two and the holders of shares of the Series outstanding at
the time (voting separately as a single class with the holders of shares of any
one or more series of preferred stock of the Corporation ranking on a parity
with the Series as to dividends or upon liquidation and upon which like voting
rights have been conferred and are exercisable) shall have the right to elect
two directors to serve as such until all arrearages of dividends on the Series
have been paid or declared and set aside for payment at which time the terms of
office of the two directors so elected shall terminate and the number of
directors of the Corporation shall be reduced by two (subject to any additional
rights as to the election of directors provided for the holders of shares of
other preferred stock of the Corporation). Any director so elected may be
removed by, and shall not be
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removed except by, the vote of the holders of shares of the Series outstanding
at the time (voting separately as a single class with the holders of shares of
any one or more series of preferred stock of the Corporation ranking on a parity
with the Series as to dividends or upon liquidation and upon which like voting
rights have been conferred and are exercisable).
(c) Certain Corporate Actions. So long as any shares of the
Series remain outstanding, the Corporation shall not, without the affirmative
vote or consent of the holders of at least two-thirds of the shares of the
Series and of any other similarly affected series of preferred stock of the
Corporation ranking on a parity with the Series as to dividends or upon
liquidation and upon which like voting rights have been conferred and are
exercisable outstanding at the time (voting separately as a single class without
regard to series), given in person or by proxy, either in writing or at a
meeting, (i) authorize, create or issue, or increase the authorized or issued
amount of, any class or series of stock ranking prior to the Series as to
dividends or upon liquidation or (ii) amend, alter or repeal, whether by merger
or otherwise, the provisions of the Certificate so as to materially and
adversely affect any of the preferences, limitations, and relative rights of the
Series; provided, however, that any increase in the amount of the authorized
preferred stock of the Corporation or the creation and issuance of other series
of preferred stock of the Corporation, in each case ranking on a parity with or
junior to the Series as to dividends or upon liquidation, will not be deemed to
materially and adversely affect such preferences, limitations and relative
rights. Without limiting the foregoing, under any circumstances in which the
Series would have additional rights under Oregon law if the Corporation were
incorporated under the Oregon Business Corporation Act (rather than the Delaware
General Corporation Law), holders of shares of the Series shall be entitled to
such rights, including, without limitation, voting rights under Section 60.441,
voting and notice rights under Section 60.487 and dissenters' rights under
Sections 60.551-60.594 of the Oregon Business Corporation Act (as such Sections
may be amended from time to time).
Section 6. No Sinking Fund. Shares of the Series are not subject to a
sinking fund or other obligation of the Corporation to redeem or retire the
Series.
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