exv4w6



 




Exhibit 4.6




REGISTRATION RIGHTS AGREEMENT




among




U.S. BANCORP

AS ISSUER




and




CITIGROUP GLOBAL MARKETS INC.




and




DEUTSCHE BANK SECURITIES INC.




AS INITIAL PURCHASERS




DATED AS OF December 9, 2005




 









 





          THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of December
9, 2005, by and among U.S. BANCORP, a Delaware corporation (the “Company”), CITIGROUP GLOBAL
MARKETS INC. and DEUTSCHE BANK SECURITIES INC. (the “Initial Purchasers”).




          This Agreement is made pursuant to the Purchase Agreement, dated September 5, 2005 (the
“Purchase Agreement”), among the Company, as issuer of the Floating Rate Convertible Senior
Debentures due 2035 (the “Debentures”), and the Initial Purchasers, which provides for, among other
things, the sale by the Company to the Initial Purchasers of the aggregate principal amount of
Debentures specified therein. In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth in this Agreement.
The execution of this Agreement is a condition to the closing under the Purchase Agreement.




          The Company agrees with the Initial Purchasers (i) for their benefit as Initial Purchasers and
(ii) for the benefit of the beneficial owners (including the Initial Purchasers) from time to time
of the Debentures, and the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issuable upon conversion of the Debentures (each of the foregoing a “Holder” and
together the “Holders”), as follows:




          1. Definitions. Capitalized terms used but not specifically defined herein have the
respective meanings ascribed thereto in the Purchase Agreement. As used in this Agreement, the
following capitalized terms shall have the following meanings:





     “Agreement”: This Registration Rights Agreement.




     “Broker-Dealer”: Any broker or dealer registered under the Exchange Act.




     “Business Day”: A day other than a Saturday, a Sunday or a day on which
banking institutions in The City of New York or Wilmington, Delaware are authorized or
required by law, regulation or executive order to close.




     “Closing Time”: As defined in the Purchase Agreement.




     “Commission”: Securities and Exchange Commission.




     “Common Stock”: The Common Stock, $0.01 par value, of the Company, and if such
Common Stock has been converted into or exchanged for other securities, any such securities
into or for which the Common Stock has been so converted or exchanged, and any security
issued with respect thereto upon any stock dividend, split or similar event.




     “Company”: As defined in the preamble hereto.




     “Damages Payment Date”: Each March 11, June 11, September 11 and December 11.




     “Debentures”: As defined in the preamble hereto.



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     “Effectiveness Period”: As defined in Section 2(a)(iii) hereof.




     “Effectiveness Target Date”: As defined in Section 2(a)(ii) hereof.




     “Exchange Act”: Securities Exchange Act of 1934, as amended.




     “Holder”: As defined in the preamble hereto.




     “Holder Questionnaire”: As defined in Section 2(b) hereof.




     “Indenture”: The senior indenture, dated as of the date hereof, between the
Company, Citibank N.A., as trustee, and U.S. Bank Trust National Association as
authenticating agent, pursuant to which the Debentures are being issued.




     “Initial Purchasers”: As defined in the preamble hereto.




     “Liquidated Damages”: As defined in Section 3(a) hereof.




     “Majority of Holders”: Holders holding over 50% of the aggregate Applicable
Amount of Registrable Securities outstanding.




     “NASD”: National Association of Securities Dealers, Inc.




     “Person”: An individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or political subdivision
thereof.




     “Purchase Agreement”: As defined in the preamble hereto.




     “Prospectus”: The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference into such
Prospectus.




     “Record Holder”: With respect to any Damages Payment Date relating to any
Securities, each Person who is a Holder at the close of business on the first day of the
month (whether or not a Business Day) in which the relevant Damages Payment Date occurs.




     “Registrable Securities”: The Securities, until such securities have been
converted or exchanged and, at all times subsequent to any such conversion or exchange, any
securities into or for which such securities have been converted or exchanged, and any
security issued with respect thereto upon any stock dividend, split, merger or similar event
until, in the case of any such security, the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Shelf Registration Statement
covering it, (ii) expiration of the holding period that would be applicable thereto under
Rule 144(k) were it not held by an Affiliate of the Company, (iii) its sale to the public
pursuant to Rule 144 or (iv) the expiration of the Effectiveness Period.



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     “Registration Default”: As defined in Section 3(a) hereof.




     “Rules”: As defined in Section 4(b)(xx) hereof.




     “Securities”: Collectively means the Debentures and the Underlying Common
Stock.




     “Securities Act”: Securities Act of 1933, as amended.




     “Shelf Filing Deadline”: As defined in Section 2(a)(i) hereof.




     “Shelf Registration Statement”: As defined in Section 2(a)(i) hereof.




     “Suspension Notice”: As defined in Section 4(c) hereof.




     “Suspension Period”: As defined in Section 4(b)(i) hereof.




     “TIA”: Trust Indenture Act of 1939, as in effect on the date the Indenture is
qualified under the TIA.




     “Trustee”: Shall mean the trustee with respect to the Securities under the
Indenture.




     “Underlying Common Stock:” The Common Stock issuable upon conversion of the
Debentures.




     “Underwritten Registration” or “Underwritten Offering”: A registration in
which securities of the Company are sold to an underwriter for reoffering to the public.




     2. Shelf Registration.




     (a) The Company shall use its best efforts to:




     (i) not later than 90 days after the Closing Time (the “Shelf Filing Deadline”), file
or cause to be filed a registration statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (the “Shelf Registration
Statement”), which Shelf Registration Statement shall provide for resales by Holders of all
Registrable Securities;




     (ii) cause the Shelf Registration Statement to be declared effective by the Commission
not later than 180 days after the Closing Time (the “Effectiveness Target Date”); and




     (iii) keep the Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the extent necessary to
ensure that it (A) is available for resales by the Holders of Registrable Securities
entitled to the benefit of this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the Commission promulgated
thereunder as announced from time to time for a period



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(the “Effectiveness Period”) that will terminate upon the earliest of the following two
dates: (x) the expiration of the holding period applicable to the Registrable Securities
held by a non-affiliate of the Company under Rule 144(k) of the Securities Act or any
successor rule thereto or (y) when all Registrable Securities have been sold.



          (b) No Holder of Registrable Securities may include any of its Registrable Securities in the
Shelf Registration Statement pursuant to this Agreement unless such Holder furnishes to the Company
in writing such information as the Company may reasonably request for use in connection with the
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein and in any
application to be filed with or under state securities laws (the form of which request is attached
to the Offering Memorandum as Exhibit A and is referred to herein as the “Holder Questionnaire”)
prior to any intended distribution of Registrable Securities. Each Holder of Registrable
Securities who elects to sell Registrable Securities pursuant to a Shelf Registration Statement
agrees by submitting a Holder Questionnaire to the Company within 30 days after the Company
notifies Holders of the filing of the Shelf Registration Statement that it will be bound by the
terms and conditions of the Holder Questionnaire and this Agreement. From and after the date the
Shelf Registration Statement is declared effective, the Company shall, during the ten business days
following the end of the quarter in which a fully completed Holder Questionnaire is received by the
Company, (i) if required by applicable law, file with the Commission a post-effective amendment to
the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement
to the related Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required by the Commission so that the Holder delivering such
Holder Questionnaire is named as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement, use its best efforts to
cause such post-effective amendment to be declared effective under the Securities Act as promptly
as is reasonably practicable, (ii) provide such Holder copies of any documents filed pursuant to
clause (i) of this Section 2(b), if requested, and (iii) notify such Holder as promptly as is
reasonably practicable after the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to clause (i) of this Section 2(b); provided that, if such Holder
Questionnaire is delivered during a Suspension Period, the Company shall so inform the Holder
delivering such Holder Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) of this Section 2(b) upon expiration of the Suspension Period in accordance with Section
4(b)(i) hereof. Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that fails to complete and deliver in a timely manner a
Holder Questionnaire as a selling securityholder in any Shelf Registration Statement or related
Prospectus.




          3. Liquidated Damages.




          (a) If:





     (i) the Shelf Registration Statement is not filed with the Commission prior to or on
the Shelf Filing Deadline;



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     (ii) the Shelf Registration Statement has not been declared effective under the
Securities Act by the Commission prior to or on the Effectiveness Target Date;




     (iii) except as provided in Section 4(b)(i) hereof, the Shelf Registration Statement is
filed and declared effective but, at any time after the Effectiveness Target Date and during
the Effectiveness Period, shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded within ten Business Days by a post-effective
amendment to the Shelf Registration Statement or a report filed with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that cures such failure and, in the
case of a post-effective amendment, is itself immediately declared effective; or




     (iv) (A) prior to or on the 45th day of any Suspension Period, such suspension has not
been terminated or (B) Suspension Periods exceed an aggregate of 90 days in any 360-day
period or an aggregate of 45 days in any 90-day period,


(each such event referred to in foregoing clauses (i) through (iv), a “Registration Default”), the
Company hereby agrees to pay as liquidated damages (“Liquidated Damages”) with respect to any
Debentures that are Registrable Securities from and including the day following the Registration
Default to but excluding the day on which the Registration Default has been cured, accruing at a
rate:





     (A) with respect to the first 90-day period during which a Registration Default shall
have occurred and be continuing, equal to 0.25% per annum of the original principal amount
of the Debentures, and




     (B) with respect to the period commencing on the 91st day following the day the
Registration Default shall have occurred and be continuing, equal to 0.50% per annum of the
original principal amount of the Debentures.




     provided that in no event shall Liquidated Damages accrue at a rate per year exceeding 0.50%
of the original principal amount of the Debentures. Following conversion of any Debentures
Liquidated Damages cease to accrue and no Liquidated Damages will accrue with respect to the
Underlying Common Stock.



          (b) All accrued Liquidated Damages shall be paid in arrears to Record Holders of any
Registrable Security by the Company on each Damages Payment Date by wire transfer of immediately
available funds or by federal funds check; provided that any Liquidated Damages accrued with
respect to any Registrable Security called for redemption on a redemption date prior to the Damages
Payment Date shall be paid instead to the Holder who submitted such Registrable Security on the
applicable redemption date. Following the cure of all Registration Defaults relating to any
particular Registrable Security, the accrual of Liquidated Damages with respect to such Registrable
Security will cease.




          All obligations of the Company set forth in this Section 3 that are outstanding with respect
to any Registrable Security at the time such security ceases to be a Registrable Security shall
survive until such time as all such obligations with respect to such Registrable Security shall
have been satisfied in full.




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          The Liquidated Damages set forth above shall be the exclusive monetary remedy available to the
Holders of Registrable Securities for such Registration Default and each Holder of a Registrable
Security shall be entitled to receive Liquidated Damages if such Holder has complied with the
requirements of Section 2(b) hereof.




          4. Registration Procedures.




          (a) (i) In connection with the Shelf Registration Statement, the Company shall comply with
all the provisions of Section 4(b) hereof and shall use its best efforts to effect such
registration to permit the sale of the Registrable Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto, shall as expeditiously as
possible prepare and file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Securities Act.




          (ii) Before filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the Commission, the Company shall furnish to the Initial Purchasers,
copies of all such documents proposed to be filed and use its best efforts to reflect in each such
document when so filed with the Commission such comments as the Initial Purchasers reasonably shall
propose within five Business Days of the delivery of such copies to the Initial Purchasers.




          (b) In connection with the Shelf Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Registrable Securities, the Company shall:





     (i) Subject to any notice by the Company in accordance with this Section 4(b)(i) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(E) hereof, use its
best efforts to keep the Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein to (A) contain a material
misstatement or omission or (B) not be effective and usable for resale of Registrable
Securities during the Effectiveness Period in accordance with the methods of distribution
described therein, the Company shall file promptly an appropriate amendment to the Shelf
Registration Statement or a supplement to the related Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of
clause (A), correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use its best efforts to cause such amendment to be declared effective and the
Shelf Registration Statement and the related Prospectus to become usable for their intended
purposes as soon as practicable thereafter. Notwithstanding the foregoing, the Company may
suspend the effectiveness of the Shelf Registration Statement by written notice to the
Holders for a period not to exceed an aggregate of 45 days in any 90-day period (each such
period, a “Suspension Period”) if:




     (x) an event occurs and is continuing as a result of which the Shelf
Registration Statement would, in the Company’s reasonable judgment, contain an
untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and



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     (y) the Company reasonably determines that the disclosure of such event at such
time would have a material adverse effect on the business of the Company and its
subsidiaries taken as a whole or on a previously undisclosed proposed or pending
material business transaction;




provided, however, that Suspension Periods shall not exceed an aggregate of 90 days in any
360-day period.




     (ii) Prepare and file with the Commission such amendments and post-effective amendments
to the Shelf Registration Statement as may be necessary to keep the Shelf Registration
Statement effective during the Effectiveness Period; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act
applicable to them, and to comply fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with the provisions of the
Securities Act applicable to them with respect to the disposition of all securities covered
by the Shelf Registration Statement during the Effectiveness Period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus; provided that in no event will such
method(s) of distribution take the form of an Underwritten Offering without the prior
agreement of the Company, which agreement will not be unreasonably withheld.




     (iii) Advise the underwriter(s), if any, the Initial Purchasers, and each selling
Holder promptly (but in any event within five Business Days) and, if requested by such
Persons, to confirm such advice in writing:




     (A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Shelf Registration Statement or
any post-effective amendment thereto, when the same has become effective;




     (B) of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto;




     (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement under the Securities Act or of the
receipt of any notification with respect to the suspension by any state securities
commission of the qualification or exemption from qualification of the Registrable
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes;




     (D) of any determination by the Company that a post-effective amendment to the
Shelf Registration Statement would be appropriate; or




     (E) of the existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the



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Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the Shelf Registration Statement and the
Prospectus do not contain an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading.




If at any time the Commission shall issue any stop order suspending the effectiveness of the
Shelf Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from qualification
of the Registrable Securities under state securities or Blue Sky laws, the Company shall use
its best efforts to obtain the withdrawal or lifting of such order at the earliest possible
time and will provide to the Initial Purchasers and each Holder who is named in the Shelf
Registration Statement prompt notice of the withdrawal of any such order.




     (iv) Make available at reasonable times during normal business hours for inspection by
one or more representatives of the selling Holders, designated in writing by a Majority of
Holders whose Registrable Securities are included in the Shelf Registration Statement, any
underwriter participating in any distribution pursuant to the Shelf Registration Statement,
and any Broker-Dealer, attorney or accountant retained by such selling Holders or any of the
underwriter(s), if any, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and cause the Company’s
officers, directors, trustees, managers and employees to supply, at the Company’s expense,
all information reasonably requested by any such representative or representatives of the
selling Holders, underwriter, Broker-Dealer, attorney or accountant in connection with the
Shelf Registration Statement after the filing thereof and before its effectiveness,
provided, however, that, if the Company so requests, such person shall first agree in
writing with the Company that any information that is reasonably and in good faith
designated by the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used solely for the
purposes of exercising rights under this Agreement, unless (1) disclosure of such
information is required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (2) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Shelf Registration Statement or the use of any Prospectus referred to
in this Agreement), (3) such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard by any such person or (4) such
information becomes available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement or is not otherwise under a duty of
trust to the Company.




     (v) If requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant to a supplement



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or post-effective amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein, including, without
limitation: (1) information relating to the “Plan of Distribution” of the Registrable
Securities, (2) information with respect to the principal amount or number of Registrable
Securities being sold to such underwriter(s), (3) the purchase price being paid therefor and
(4) any other terms of the offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or post-effective
amendment as soon as reasonably practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment.




     (vi) Furnish to each selling Holder and each of the underwriter(s), if any, upon their
request, without charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto (and any documents incorporated by
reference therein or exhibits thereto (or exhibits incorporated in such exhibits by
reference) as such Person may request).




     (vii) Deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary Prospectus) and any
amendment or supplement thereto and such other documents as such Persons reasonably may
request; subject to any notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(E) hereof, the
Company hereby consents to the use of the Prospectus and any amendment or supplement thereto
by each of the selling Holders and each of the underwriter(s), if any, in connection with
the offering and the sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto.




     (viii) The Company shall:




     (A) Upon request, furnish to each selling Holder and each underwriter, if any,
in such substance and scope as they may reasonably request and as are customarily
made by issuers to underwriters in primary underwritten offerings for selling
securityholders, upon the date of closing of any sale of Registrable Securities in
an Underwritten Registration:




     (1) a certificate, dated the date of such closing, signed by the Chief
Financial Officer of the Company confirming, as of the date thereof, the
matters set forth in Section 5(d) of the Purchase Agreement and such other
matters as such parties may reasonably request;




     (2) opinions, each dated the date of such closing, of
counsel to the Company and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority in principal
amount of the Registrable Securities being sold) addressed to each selling
Holder and the underwriters, if any, covering such of the matters as are
customarily covered in legal opinions to underwriters in connection with



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underwritten offerings of securities and such other matters as may be
reasonably requested by the selling Holders and the underwriters; and




     (3) customary comfort letters, dated the date of such closing, from the
Company’s independent accountants (and from any other accountants whose
report is contained or incorporated by reference in the Shelf Registration
Statement) to the extent deliverable in accordance with their professional
standards, reasonable efforts to have such letter addressed to the selling
Holders of Registrable Securities (to the extent consistent with Statement
on Auditing Standards No. 100 of the American Institute of Certified Public
Accountants), such letters to be in customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings of securities;




     (B) set forth in full in the underwriting agreement, if any, indemnification
provisions and procedures which provide rights no less protective than those set
forth in Section 7 hereof with respect to all parties to be indemnified;




     (C) make such representations and warranties to the selling Holders
participating in an Underwritten Registration and the underwriter(s), if any, in
form, substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings, including, but not limited to, those set forth in
the Purchase Agreement; and




     (D) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement, if any, or other
agreement entered into by the selling Holders pursuant to this clause (viii).




     (ix) Before any public offering of Registrable Securities, cooperate with the selling
Holders, the underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Registrable Securities under the securities or Blue
Sky laws of such jurisdictions in the United States as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Shelf Registration Statement; provided, however, that the Company
shall not be required (A) to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but for this Section
4(b)(ix), or (B) take any action that would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject.




     (x) Unless the applicable Registrable Securities shall be in book-entry only form,
cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities to be



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in such denominations and registered in such names as the selling Holders or the
underwriter(s), if any, may request at least two Business Days before any sale of
Registrable Securities made by such selling Holder or underwriter(s).




     (xi) Subject to Section 4(b)(i) hereof, if any fact or event contemplated by Section
4(b)(iii)(E) hereof shall exist or have occurred, use its best efforts to prepare a
supplement or post-effective amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading. At such time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to correct any misstatement
of a material fact or to include any omitted material fact, the Company agrees promptly to
notify each Holder of such determination and to furnish each Holder such number of copies of
the Prospectus as amended or supplemented, as such Holder may reasonably request.




     (xii) Provide CUSIP numbers for the Securities and, in the event of and at the time of
any distribution thereof to Holders, the Debentures registered under such Shelf Registration
Statement, not later than the effective date of the Shelf Registration Statement and provide
the Trustee under the Indenture with certificates for such Securities that are in a form
eligible for deposit with The Depository Trust Company.




     (xiii) Cooperate, assist and provide such information as is required with respect to
any filings required to be made with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in accordance with the
rules and regulations of the NASD.




     (xiv) Upon (i) the filing of the initial Shelf Registration Statement and (ii) the
effectiveness of the initial Shelf Registration Statement, announce the same, in each case
by release to Businesswire, Reuters Economic Services, Bloomberg Business News or any other
means of dissemination reasonably expected to make such information known publicly.




     (xv) Otherwise comply with all applicable rules and regulations of the Commission and
all reporting requirements under the rules and regulations of the Exchange Act and generally
make available to its securityholders (or otherwise provide in accordance with Section 11(a)
of the Securities Act and Rule 158 thereunder) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of
the 12-month period (or 90 days, if such period is a fiscal year) beginning the first month
of the Company’s first quarter commencing after the Effectiveness Target Date, which
statement shall cover such 12-month period.




     (xvi) Cause the Indenture to be qualified under the TIA not later than the effective
date of the Shelf Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the applicable trustees and the holders of Securities



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to effect such changes to such documents as may be required for such documents to be so
qualified in accordance with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission to enable such
documents to be so qualified in a timely manner.




     (xvii) Cause all Registrable Securities covered by the Shelf Registration Statement to
be listed or quoted, as the case may be, on each securities exchange or automated quotation
system on which similar securities issued by the Company are then listed or quoted.




     (xviii) Provide to each Holder, upon written request, each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement, unless such document is
publicly available via the Commission’s EDGAR system.




     (xix) At a reasonable time prior to the filing of any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus or any document that is to be incorporated by
reference into any Shelf Registration Statement or any Prospectus after the initial filing
of the Shelf Registration Statement, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable Securities, if any;
make such changes in any such document prior to the filing thereof as the Initial
Purchasers, the counsel to the Holders or the underwriter or underwriters, if any,
reasonably request; and not file any such document in a form to which the Majority of
Holders, the Initial Purchasers on behalf of the Holders of Registrable Securities, counsel
for the Holders of Registrable Securities or any underwriter shall not have previously been
advised and furnished a copy of, or to which the Majority of Holders, the Initial Purchasers
on behalf of the Holders of Registrable Securities, counsel to the Holders of Registrable
Securities or any underwriter shall reasonably object; and make the representatives of the
Company available for discussion of such document as shall be reasonably requested by the
Holders of Registrable Securities, the Initial Purchasers on behalf of such Holders, counsel
for the Holders of Registrable Securities or any underwriter.




     (xx) In the event that any Broker-Dealer shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the Rules of Fair Practice of the NASD (the “Rules”)
and the By-Laws of the NASD) thereof, whether as a Holder of such Registrable Securities or
as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such Broker-Dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by (A) if such Rules or By-Laws shall so require,
engaging a “qualified independent underwriter” to participate in the preparation of the
Shelf Registration Statement relating to such Registrable Securities and to exercise usual
standards of due diligence in respect thereto, (B) indemnifying any such qualified
independent underwriter to the extent of the



13









 






indemnification of underwriters provided in Section 7 hereof and (C) providing any
information to such Broker-Dealer as may be required in order for such Broker-Dealer to
comply with the requirements of the Rules.




     (xxi) Enter into such customary agreements and take such other reasonable necessary
actions in connection therewith (including those reasonably requested by the Majority of
Holders of Registrable Securities covered by such Shelf Registration Statement) in order to
expedite or facilitate disposition of such Registrable Securities.



          (c) Each Holder agrees by acquisition of a Registrable Security that, upon receipt of any
notice (a “Suspension Notice”) from the Company of the existence of any fact of the kind described
in Section 4(b)(iii)(E) hereof, such Holder will, and will use its best efforts to cause any
underwriter(s) in an Underwritten Offering to, forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until:



          (i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(b)(xvii) hereof; or



          (ii) such Holder is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.




If so directed by the Company, each Holder will deliver to the Company (at the Company’s expense)
all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Registrable Securities that was current at the time of receipt of such Suspension
Notice.



          (d) Upon the initial sale of any Registrable Securities pursuant to the Shelf Registration
Statement, each selling Holder shall deliver a notice of such sale to the Company certifying that
(i) the Prospectus delivery requirements, if any, of the Securities Act have been complied with and
(ii) such selling Holder and the aggregate amount of Registrable Securities owned by such selling
Holder are identified in the related Prospectus in accordance with the applicable rules and
regulations under the Securities Act.




          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that will
manage such offering will be selected by the Majority of Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees
to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements.




          5. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a Prospectus




14









 







relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire
as required pursuant to Section 2(b) hereof (including the information required to be included in
such Notice and Questionnaire).




          6. Registration Expenses.




          (a) The Company shall bear all fees and expenses incurred in connection with the performance
of its obligations under Sections 2 and 4 of this Agreement, whether or not any of the Shelf
Registration Statements are declared effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation, reasonable fees
and disbursements of the counsel specified in the next sentence in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such jurisdictions as the Holders of
a majority of the Registrable Securities being sold pursuant to a Shelf Registration Statement may
designate), (ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Shelf Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of counsel for the
Company in connection with the Shelf Registration Statement and (v) reasonable fees and
disbursements of the Trustee and its counsel and of the registrar and transfer agent for the Common
Stock. In addition, the Company shall bear or reimburse the Holders that have delivered a Holder
Questionnaire for the reasonable fees and disbursements of one firm of legal counsel for the
Holders incurred in reviewing and commenting upon the Shelf Registration Statement prior to its
effectiveness, which shall, upon the written consent of the Initial Purchasers (which shall not be
unreasonably withheld), be a nationally recognized law firm experienced in securities law matters
designated by the Company. In addition, the Company shall pay the internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities exchange on which the
same securities of the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company.




          (b) In connection with the Shelf Registration Statement required by this Agreement, including
any amendment or supplement thereto, and any other documents delivered to any Holders, the Company
shall reimburse the Initial Purchasers and the Holders of Registrable Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, which shall be Shearman & Sterling LLP, or such other
counsel as may be chosen by a Majority of Holders for whose benefit the Shelf Registration
Statement is being prepared.




          7. Indemnification and Contribution.




          (a) The Company agrees to indemnify and hold harmless each Initial Purchaser, each Holder, and
each person, if any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act as follows:




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     (i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the Securities Act, including
all documents incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading;




     (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and




     (iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by the Holder expressly for use in any Shelf Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).




          (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company,
each Initial Purchaser and the other selling Holders, and each of their respective directors and
officers, and each Person, if any, who controls the Company, any Initial Purchaser, or any other
selling Holder within the meaning of the Securities Act or the Exchange Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained in Section 7(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in
conformity with written information with respect to such Holder furnished to the Company by such
Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in




16









 







excess of the amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.




          (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel (other than local counsel); provided, however, that the counsel appointed
by the indemnifying party shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to
represent the indemnified party in any action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel with an actual or
potential conflict of interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to the indemnifying
party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party or such appointment was not within a
reasonable time after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying
party. No indemnifying party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 7 (whether or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.




          (d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.




17









 








          (e) If the indemnification provided for in this Section 7 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and the Holders and the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.




          The relative fault of the Company on the one hand and the Holders and the Initial Purchasers
on the other hand shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Holders or the Initial Purchasers and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.




          The Company, the Holders and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.




          Notwithstanding the provisions of this Section 7, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities sold
by it were offered exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.




          No Person guilty of fraudulent misrepresentation (within the meaning of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.




          For purposes of this Section 7, each Person, if any, who controls an Initial Purchaser or
Holder within the meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the Company, and each
Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.




          8. Rules 144 and 144A. The Company shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if
at any time the Company is not required to file such reports, it will, within a reasonable period
of time, upon written request of any Holder of Registrable Securities, make




18









 







publicly available other information so long as necessary to permit sales of its securities
pursuant to Rules 144 and 144A. The Company covenants that it will take such further action as any
Holder of Registrable Securities may reasonably request, all to the extent required from time to
time to enable such Holder to sell such Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and 144A (including
the requirements of Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Registrable Securities identified to the Company by any Initial Purchaser
upon request. Upon the request of any Holder of Registrable Securities, the Company shall deliver
to such Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.




          9. Miscellaneous.




          (a) No Inconsistent Agreements. The Company has not entered into and the Company will
not after the date of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the Company’s other
issued and outstanding securities under any such agreements.




          (b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or departure.




          (c) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, facsimile transmission, or air courier guaranteeing overnight delivery.
Notices to the Initial Purchasers shall be directed to Citigroup Global Markets, Inc. at 388
Greenwich Street, New York, New York 10013, Attention: General Counsel, and to Deutsche Bank
Securities Inc. at 60 Wall Street, New York, New York, Attention: Equity Capital Markets Syndicate
Desk, with a copy to the General Counsel; notices to the Company shall be directed to it at 800
Nicollett Mall, Minneapolis, Minnesota 55402, attention of Treasurer.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
transmitted by facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.




          Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in such
Indenture.




19









 








          (d) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.




          (e) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.




          (f) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.




          (g) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.




          (h) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall remain in full force and effect and
shall not be affected or impaired or invalidated thereby, it being intended that all of the rights
and privileges of the parties shall be enforceable to the fullest extent permitted by law.




          (i) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable Securities. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and understandings among
the parties with respect to such subject matter.




          (j) Third Party Beneficiaries. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company, on the one hand, and the Initial Purchasers, on the
other hand, and the Holders shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.




20









 








          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 	 	 
	 	 	U.S. BANCORP
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Daryl N. Bible
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Daryl N. Bible
	 

	 	 	 	Title:
	 	Executive Vice President and
	 

	 	 	 	 	 	Treasurer






	 	 	 	 	 
	The foregoing Registration Rights Agreement is

hereby confirmed and accepted as of the date first

above written.	 	 
	 
	 	 	 	 
	CITIGROUP GLOBAL MARKETS INC.	 	 
	 
	 	 	 	 
	By:

	 	     /s/ J. Kenneth McPhail	 	 
	 

	 	 

     Authorized Signatory
	 	 
	 
	 	 	 	 
	DEUTSCHE BANK SECURITIES INC.	 	 
	 
	 	 	 	 
	By:

	 	     /s/ Donald Sung	 	 
	 

	 	 

     Authorized Signatory
	 	 
	 
	 	 	 	 
	By:

	 	     /s/ H. Brooks Harris	 	 
	 

	 	 

     Authorized Signatory
	 	 







21