Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WELLS FARGO & COMPANY
(Exact name of registrant as specified in its charter)
Delaware
(State of Incorporation)
13-2553920
(I.R.S. Employer Identification No.)
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000
(Address and telephone number of principal executive offices)
ALAN J. PABST
Senior Vice President and Treasurer
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000
(Name, address and telephone number of agent for service)
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Copies to:
<TABLE>
<S> <C> <C>
GEORGE D. TUTTLE, Esq. ERIC S. HAUETER, Esq. E. WAIDE WARNER, Jr. Esq.
DOUGLAS D. SMITH, Esq. Brown & Wood Davis Polk & Wardwell
Brobeck Phleger & Harrison 555 California Street 450 Lexington Avenue
One Market Plaza San Francisco, California 94104 New York, New York 10017
San Francisco, California 94105
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act of 1933 registration statement
number of the earlier effective registration statement for the same
offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, check the following box and list the Securities Act
of 1933 registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED<F1> PER SECURITY OFFERING PRICE FEE<F2>
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<S> <C> <C> <C> <C>
Notes.......................................
Preferred Stock <F4>........................
Depositary Shares <F5><F6>.................. $2,062,750,000 100%<F3> $2,062,750,000 $711,293
Common Stock <F6><F7>.......................
Capital Securities <F6><F8>.................
<FN>
<F1> In United States dollars or the equivalent thereof in
foreign currency or currency units. If any of the Notes are
issued at an original issue discount, this amount will be
increased such that the public offering price will equal
$2,062,750,000.
<F2> $437,250,000 maximum aggregate offering price of securities
is being carried forward pursuant to Rule 429 under the
Securities Act of 1933 from Registration Statement No.
33-51227, as discussed below on this facing page. The amount
of the filing fee to register such securities is $150,776.
<F3> Estimated solely for the purpose of calculating the
registration fee. The aggregate public offering price of
Notes and Preferred Stock sold will not exceed
$2,062,750,000.
<F4> Such indeterminate number of shares of Preferred Stock as
may from time to time be issued at indeterminate prices and,
in addition, as may be issuable upon conversion, exchange or
in payment of the Notes registered hereunder.
<F5> Such indeterminate number of Depositary Shares as may be
issued in the event the registrant elects to offer
fractional interests in shares of Preferred Stock registered
hereunder.
<F6> No additional consideration will be received for the
Depositary Shares, Common Stock or Capital Securities and
therefore no registration fee is required pursuant to Rule
457(j).
<F7> Such indeterminate number of shares of Common Stock as may be
issuable upon conversion or in payment of the Notes and Preferred
Stock registered hereunder.
<F8> Such indeterminate amount of Capital Securities as may be issued
upon conversion or in payment of the Notes and Preferred Stock
registered hereunder.
</FN>
</TABLE>
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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- -------------------------------------------------------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement constitutes a
combined Prospectus relating also to $437,250,000 maximum
aggregate offering price of securities, unsold as of June 22,
1995, registered pursuant to Registration Statement No. 33-51227
previously filed by the Company on Form S-3.
1.
<PAGE>
Subject to Completion, dated June 22, 1995
$2,500,000,000
WELLS FARGO & COMPANY
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
WELLS FARGO & COMPANY (the "Company") intends
to offer and sell from time to time its debt securities (the
"Notes") and its Preferred Stock, $5.00 par value ("Preferred
Stock"), with an aggregate public offering price of
$2,500,000,000 (or the equivalent in foreign currencies or
composite currencies) on terms to be determined by market
conditions at the time of sale. The Notes and the Preferred Stock
(together the "Offered Securities") may be offered separately or
together, in separate series, in amounts and at prices and terms
to be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"). At the option of the Company, the
Notes may be issued as senior debt securities ("Senior Notes") or
as subordinated debt securities ("Subordinated Notes"). The
Offered Securities may be denominated in United States dollars
or, at the option of the Company, in any other currency, in a
composite currency or in amounts determined by reference to an
index which is specified in the Prospectus Supplement. The
specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement. The Notes may be convertible
or exchangeable into Preferred Stock, Common Stock or Capital
Securities of the Company. The Preferred Stock may be convertible
or exchangeable into Notes, Common Stock or Capital Securities of
the Company.
The Offered Securities may be offered and sold
directly by the Company or selling security-holders, or through
one or more underwriters or agents. In addition, the Prospectus
Supplement will set forth the terms of sale of the Offered
Securities and the identity of any underwriters, agents or
selling security-holders. Any underwriters, dealers or agents
participating in any offering of the Offered Securities may be
deemed "underwriters" within the meaning of the Securities Act of
1933, as amended. See "Plan of Distribution."
Payment of the principal of the Subordinated
Notes may be accelerated only in the case of certain events of
bankruptcy, insolvency or reorganization of the Company or the
Bank. There is no right of acceleration in the case of a default
in the performance of any covenant with respect to the
Subordinated Notes, including the payment of interest or
principal. See "Description of Notes - Events of Default."
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE OFFERED SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS BUT ARE
UNSECURED DEBT OBLIGATIONS OF, OR EQUITY INTERESTS IN, WELLS
FARGO & COMPANY AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
------------------------------------
This Prospectus may not be used to
consummate sales of Offered
Securities unless accompanied
by a Prospectus Supplement.
------------------------------------
The date of this Prospectus is June 22, 1995
2.
<PAGE>
No person has been authorized to give any
information or to make any representations other than those
contained in this Prospectus and the Prospectus Supplement in
connection with the offering made hereby, and if given or made,
such information or representations must not be relied upon as
having been authorized by the Company or by any underwriters or
agents. Neither the delivery of this Prospectus and the
Prospectus Supplement nor any sale made thereunder shall, under
any circumstances, create any implication that information herein
is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934 ("Act") and
in accordance therewith files reports and other information with
the Securities and Exchange Commission ("Commission"). Proxy
statements, reports and other information concerning the Company
can be inspected at the Commission's office at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549, and the
Commission's Regional Offices in New York (7 World Trade Center,
Suite 1300, New York, New York 10048) and Chicago (Northwest
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511), and copies of such material can be obtained
from such facilities and the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. In addition, such
material can be inspected at the offices of the New York and
Pacific Stock Exchanges on which certain of the Company's
securities are listed. This Prospectus does not contain all
information set forth in the Registration Statement and Exhibits
thereto which the Company has filed with the Commission under the
Securities Act of 1933 and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in
this Prospectus the following reports filed with the Commission
pursuant to Section 13 of the Act: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1994;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31 1995; and (iii) the Company's Current Reports on
Form 8-K filed on January 17, April 18, and June 22, 1995. All
documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Offered
Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the
date of filing of such documents.
Any person receiving a copy of this Prospectus
may obtain without charge, upon oral or written request, a copy
of any of the documents incorporated by reference herein, except
for the exhibits to such documents unless such exhibits are
specifically incorporated by reference into the information that
the Prospectus incorporates. Requests should be directed to Wells
Fargo & Company, Investor/Public Relations, MAC #0163-029,
343 Sansome Street, San Francisco, California 94163, telephone
(415) 396-0560.
Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
WELLS FARGO & COMPANY
Wells Fargo & Company ("Company") is a bank
holding company registered under the Bank Holding Company Act of
1956, as amended. On the basis of assets as of December 31, 1994,
the Company was the fifteenth largest bank holding company in the
United States. As of December 31, 1994, the Company had loans of
$36.3 billion, total assets of $53.4 billion, total deposits of
$42.3 billion and stockholders' equity of $3.9 billion.
3.
<PAGE>
Its principal subsidiary is Wells Fargo Bank, National
Association ("Bank"). The Bank is primarily engaged in retail,
commercial and corporate banking, real estate lending and trust
and investment services.
The Company is a legal entity separate and
distinct from the Bank and its other affiliates. There are
various legal limitations on the extent to which the Bank may
extend credit, pay dividends or otherwise supply funds to the
Company or various of its affiliates. The executive offices of
the Company are located at 420 Montgomery Street, San Francisco,
California 94163. The Company's telephone number is (415)
477-1000.
Since the Company is a holding company, the
rights of the Company to participate in any distribution of
assets of any subsidiary upon its liquidation or reorganization
or otherwise (and thus the ability of holders of the Offered
Securities to benefit indirectly from such distribution) are
subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company may itself be a creditor
of that subsidiary. Claims on the Company's subsidiaries by
creditors other than the Company include long-term debt and
substantial obligations in respect of federal funds purchased,
securities sold under repurchase agreements and certain other
short-term borrowings, as well as deposit liabilities.
USE OF PROCEEDS
The net proceeds from the sale of the Offered
Securities will be used for general corporate purposes. Specific
allocations of the proceeds to such purposes have not been
determined. The net proceeds may be used to reduce outstanding
commercial paper and other debt of the Company. Based upon the
anticipated future funding requirements of the Company and its
subsidiaries in addition to those stated above, the Company
expects that it will, from time to time, engage in additional
financings of a character and in amounts to be determined and
that its commercial paper borrowings and other short-term debt
may be increased above the level prevailing after the initial use
of proceeds.
4.
<PAGE>
SUMMARY FINANCIAL DATA
This summary is qualified in its entirety by the detailed
information and financial statements included in the documents incorporated
by reference in this Prospectus. See "Incorporation of Certain Documents
by Reference."
<TABLE>
<CAPTION>
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Year Ended December 31,
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1994 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C>
(in millions)
Consolidated Summary of Income:
Interest income............................. $ 3,765 $ 3,761 $ 4,145 $ 4,972 $ 5,051
Interest expense............................ 1,155 1,104 1,454 2,452 2,737
------ ------ ------ ------ ------
Net interest income......................... 2,610 2,657 2,691 2,520 2,314
Provision for loan losses................... 200 550 1,215 1,335 310
------ ------ ------ ------ ------
Net interest income after provision for
loan losses.............................. 2,410 2,107 1,476 1,185 2,004
Noninterest income.......................... 1,200 1,093 1,059 889 909
Noninterest expense......................... 2,156 2,162 2,035 2,020 1,717
------ ------ ------ ------ ------
Income before
income tax expense....................... 1,454 1,038 500 54 1,196
Income tax expense.......................... 613 426 217 33 484
------ ------ ------ ------ ------
Net income.................................. $ 841 $ 612 $ 283 $ 21 $ 712
====== ====== ====== ====== ======
Net income applicable to
common stock............................. $ 798 $ 562 $ 235 $ 2 $ 685
====== ====== ====== ====== ======
Net income per
common share............................. $ 14.78 $ 10.10 $ 4.44 $ .04 $ 13.39
====== ====== ====== ====== ======
Average common shares
outstanding.............................. 53.9 55.6 52.9 51.8 51.2
====== ====== ====== ====== ======
Consolidated Average Balance Sheet Data:
Loans....................................... $34,039 $34,304 $40,406 $46,736 $44,061
Total assets................................ 51,849 51,110 52,497 55,022 51,109
Core deposits............................... 39,592 40,389 41,779 41,523 36,219
Total deposits.............................. 40,821 40,727 42,266 42,642 37,075
Stockholders' equity........................ 4,079 3,996 3,573 3,352 3,137
Net Interest Margin<F1>......................... 5.55% 5.74% 5.70% 5.18% 5.12%
Consolidated Profitability Ratios:
Net income to average total assets (ROA).... 1.62% 1.20% .54% .04% 1.39%
Net income applicable to common stock to
average common stockholders'
equity (ROE)............................. 22.41 16.74 7.93 .07 25.07
- --------
<F1> Net interest margin is defined as net interest income on a
taxable-equivalent basis divided by average total earning assets.
</TABLE>
5.
<PAGE>
<TABLE>
<CAPTION>
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Year Ended December 31,
---------------------------------------------------------------------------
1994 1993 1992 1991 1990
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(in millions)
<S> <C> <C> <C> <C>
Consolidated Period-End Capital Ratios: <F2>
Common stockholders' equity to assets...... 6.41% 7.00% 6.03% 5.24% 5.26%
Stockholders' equity to assets.............. 7.33 8.22 7.25 6.11 5.98
Consolidated Period-End Loan Data:
Allowance for loan losses................... $2,082 $2,122 $2,067 $1,646 $ 885
Allowance for loan losses as a percentage of
total loans.............................. 5.73% 6.41% 5.60% 3.73% 1.81%
Nonaccrual and restructured loans........... $ 582 $1,200 $2,142 $1,981 $1,013
Nonaccrual and restructured loans
as a percentage of total loans........... 1.6% 3.6% 5.8% 4.5% 2.1%
Consolidated Loan Charge-Off Data:
Net loan charge-offs........................ $ 240 $ 495 $ 798 $ 572 $ 168
Net loan charge-offs as a percentage
of average total loans................... 0.70% 1.44% 1.97% 1.22% 0.38%
Consolidated Ratios of Earnings to Fixed
Charges: <F3><F5>
Including interest on deposits.............. 2.20 1.90 1.33 1.02 1.43
Excluding interest on deposits.............. 5.04 4.53 2.56 1.10 2.42
Consolidated Ratios of Earnings to
Fixed Charges and Preferred
Stock Dividends: <F3><F4><F5>
Including interest on deposits.............. 2.07 1.77 1.26 1.00 1.41
Excluding interest on deposits.............. 4.18 3.51 2.02 1.01 2.30
- --------
<FN>
<F2> Based on the Federal Reserve Board's guidelines, the Company's
total risk-based capital ratio was 13.16%, 15.12%, 13.15%, 10.19%
and 9.27% at December 31, 1994, 1993, 1992, 1991 and 1990,
respectively. The Company's Tier 1 risk-based capital ratio was
9.09%, 10.48%, 8.22%, 5.78% and 5.03% at December 31, 1994, 1993,
1992, 1991 and 1990, respectively.
<F3> For purposes of computing these ratios, earnings represent
income before income tax expense plus fixed charges. Fixed
charges represent interest expense plus the estimated
interest component of net rental expense.
<F4> The preferred stock dividends are increased to amounts
representing the pretax earnings required to cover such
dividends.
<F5> These computations are included herein in
compliance with Securities and Exchange Commission
regulations. However, management believes that fixed
charge ratios are not meaningful measures for the business
of the Company because of two factors. First, even if
there were no change in net income, the ratios would
decline with an increase in the proportion of income which
is tax-exempt or, conversely, they would increase with a
decrease in the proportion of income which is tax-exempt.
Second, even if there were no change in net income, the
ratios would decline if interest income and interest
expense increase by the same amount due to an increase in
the level of interest rates or, conversely, they would
increase if interest income and interest expense decrease
by the same amount due to a decrease in the level of
interest rates.
</FN>
</TABLE>
6.
<PAGE>
DESCRIPTION OF NOTES
The Senior Notes will be issued under an Indenture, dated
as of September 1, 1984, as amended by the First Supplemental
Indenture dated as of April 15, 1986, the Second Supplemental
Indenture dated as of June 30, 1987, and the Third Supplemental
Indenture dated as of January 23, 1991 (together, the "Senior
Indenture"), between the Company and Chemical Bank, as successor
Trustee (the "Senior Trustee"). The Subordinated Notes will be
issued under an Indenture dated as of December 10, 1992 (the
"Subordinated Indenture"), between the Company and Marine Midland
Bank, as Trustee (the "Subordinated Trustee"). In this
Prospectus, the Senior Indenture and the Subordinated Indenture
are referred to as the "Indentures." The Senior Trustee and the
Subordinated Trustee are referred to as the "Trustees." As used
in this Prospectus, the term "Senior Notes" means the Senior
Notes offered hereby and, unless the context otherwise requires,
any other debt securities issued under the Senior Indenture, the
term "Subordinated Notes" means the Subordinated Notes offered
hereby and, unless the context otherwise requires, any other debt
securities issued under the Subordinated Indenture, and the term
"Notes" means the Notes offered hereby and, unless the context
otherwise requires, any other debt securities which may be issued
under the Indentures; and references to "principal" of the Notes
shall be deemed to include, unless the context otherwise
requires, a reference to premium, if any, on the Notes. Copies of
the Indentures are filed or incorporated by reference as exhibits
to the Registration Statement. The following summaries of certain
provisions of the Indentures and the summary of certain
provisions of a particular series of Notes set forth in the
Prospectus Supplement relating thereto do not purport to be
complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indentures and the
respective forms of the Notes, including the definitions therein
of certain terms. Whenever particular Sections, Articles or
defined terms of the Indentures are referred to, it is intended
that such Sections, Articles or defined terms shall be
incorporated herein by reference.
GENERAL
The Indentures do not limit the amount of debt securities
which can be issued thereunder and provide that debt securities
of any series may be issued thereunder up to the aggregate
principal amount which may be authorized from time to time by the
Company. The Indentures do not limit the amount of other
indebtedness or securities which may be issued by the Company.
The Notes may be issued at various times with different maturity
dates and different principal repayment provisions, may bear
interest at different rates, may be payable in currencies other
than United States dollars, in composite currencies or in amounts
determined by reference to an index and may otherwise vary, all
as provided in the Indentures.
The Prospectus Supplement will set forth the following
specific terms regarding the series of Notes offered thereby:
(i) the designation and aggregate principal amount of Notes of such
series; (ii) the ranking of the Notes as Senior Notes or
Subordinated Notes; (iii) the percentage of their principal
amount at which such Notes will be issued; (iv) the date or dates
on which such Notes will mature, if any; (v) the rate per annum
or the method of determining the rate or rates per annum, if any,
at which such Notes will bear interest; (vi) the dates from and
on which such interest, if any, will accrue and be payable and
the designated record dates for such interest payments; (vii) the
currency (which may be a composite currency) in which payment of
principal and interest, if any, shall be payable if other than
United States dollars; (viii) the index, if any, upon which the
amount of principal or interest is determined; (ix) any
redemption terms; (x) any conversion or exchange provisions;
(xi) provisions for issuance of global securities; and (xii) other
specific terms. If so indicated in the applicable prospectus
supplement, the terms of the Notes offered thereby may differ
from those set forth herein.
Some of the Notes may be issued as discounted Notes
(bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a discount below
their stated principal amount. Some of the Notes may be perpetual
and have no stated maturity. Federal income tax consequences and
other special considerations applicable to such perpetual or discounted Notes
will be described in the Prospectus Supplement relating thereto.
7.
<PAGE>
Interest on the Notes of any series will be payable to the
persons in whose names the Notes are registered at the close of
business on the record date designated for an interest payment
date (Section 2.03). The Notes may be presented for the payment
of principal and interest, if any, transfer and exchange at the
offices or agencies of the Company maintained for such purposes
in San Francisco and New York City. Payment of any installment of
interest may be made at the option of the Company by check,
mailed to the address of the person entitled thereto as it
appears on the Register of the Notes of such series (Sections
2.05, 4.01 and 4.02). The Notes will be issued in fully
registered form, without coupons, in denominations of $1,000 and
any whole multiple of $1,000, unless different authorized
denominations are stated in the Prospectus Supplement. No service
charge will be made for any exchange or registration of transfer
of a Note, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge (Section
2.05). The Indentures provide that if a series of Notes is
denominated in a currency other than United States dollars or in
a composite currency, in the absence of a contrary provision in
the Notes any action or distribution under the Indentures will be
based on the relative amount of United States dollars that could
be obtained on such reasonable basis of exchange on such date as
is specified by the Company to the Trustee (Sections 14.10 of the
Senior Indenture and 16.10 of the Subordinated Indenture).
All of the Notes will be unsecured general obligations of
the Company. The Senior Notes will not be subordinated in right
of payment to any other indebtedness of the Company. Unless
otherwise set forth in the applicable Prospectus Supplement,
neither the Indentures nor the Notes contain provisions which
would afford holders of the Notes protection in the event of a
takeover, recapitalization or similar restructuring involving the
Company which could adversely affect the Notes.
SUBORDINATION OF SUBORDINATED NOTES
The obligation of the Company to make any payment on
account of the principal of and interest on the Subordinated
Notes of any series will be subordinate and junior in right of
payment to the Company's obligations to the holders of Senior
Indebtedness of the Company to the extent described in the next
paragraph. Senior Indebtedness of the Company includes the Senior
Notes and means (i) any indebtedness of the Company for borrowed
or purchased money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) obligations
under letters of credit, (iii) any indebtedness or other
obligations of the Company with respect to commodity contracts,
interest rate and currency swap agreements, cap, floor and collar
agreements, currency spot and forward contracts, and other
similar agreements or arrangements designed to protect against
fluctuations in currency exchange or interest rates, and (iv) any
guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or
other similar contingent obligations in respect of obligations of
others of a type described in (i), (ii) or (iii) above, whether
or not such obligation is classified as a liability on a balance
sheet prepared in accordance with generally accepted accounting
principles, in each case listed in (i), (ii), (iii) and (iv)
above, whether outstanding on the date of execution of the
Subordinated Indenture or thereafter incurred, other than
obligations "ranking on a parity" with the Subordinated Notes or
"ranking junior" to the Subordinated Notes (as those terms are
defined in the Subordinated Indenture) (Section 1.01). The
definition of senior indebtedness in previously issued
subordinated debt of the Company (the "Prior Subordinated Debt",
which term excludes any Subordinated Notes issued under the
Subordinated Indenture) includes only indebtedness of or
guaranteed by the Company for borrowed money and any deferred
obligation for the payment of the purchase price of property or
assets, other than obligations ranking on a parity with or junior
to such subordinated indebtedness. As a result of this
difference, the holders of Subordinated Notes are subordinated to
greater amounts of senior indebtedness of the Company than
holders of such Prior Subordinated Debt and, under the
circumstances described in the following paragraph, holders of
Subordinated Notes may receive less, ratably, than holders of
such Prior Subordinated Debt. As of December 31, 1994, there were
$1.4 billion of Senior Indebtedness of the Company and $1.5
billion of obligations ranking on a parity (as defined in the
Subordinated Indenture) with the Subordinated Notes. The
Subordinated Indenture does not limit the amount of Senior
Indebtedness of the Company.
In the case of any insolvency, receivership,
conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or
any liquidation or winding-up of or relating to the Company as
8.
<PAGE>
a whole, whether voluntary or involuntary, all obligations of the
Company to holders of Senior Indebtedness of the Company shall be
entitled to be paid in full before any payment shall be made on
account of the principal of or interest on the Subordinated
Notes. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness of the
Company, the holders of the Subordinated Notes, together with the
holders of any obligations of the Company ranking on a parity
with the Subordinated Notes, shall be entitled to be paid from
the remaining assets of the Company the amounts at the time due
and owing on account of unpaid principal of and interest on the
Subordinated Notes before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Company ranking
junior to the Subordinated Notes (Section 14.01). By reason of
such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness of the Company may
receive more, ratably, and holders of the Subordinated Notes
having a claim pursuant to the Subordinated Notes may receive
less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of
Default in respect of the Subordinated Notes (Section 14.10).
GLOBAL SECURITIES
The Notes of a series may be issued in whole or in part in
the form of one or more global securities ("Global Security")
that will be deposited with, or on behalf of, a depositary
identified in the Prospectus Supplement relating to such series.
Global Securities will be issued in registered form and in either
temporary or definitive form. Unless and until it is exchanged in
whole or in part for Notes in definitive form, a Global Security
may not be transferred except as a whole by the depositary for
such Global Security to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee
of such depositary or by such depositary or any such nominee to a
successor of such depositary or a nominee of such successor
(Sections 2.02 and 2.05).
The specific terms of the depositary arrangement with
respect to any Notes of a series will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Global Security, the depositary for
such Global Security will credit, on its book-entry registration
and transfer system, the respective principal amounts of the
Notes represented by such Global Security to the accounts of
institutions that have accounts with such depositary
("Participants"). The accounts to be credited shall be designated
by the underwriters of such Notes, by certain agents of the
Company or by the Company, if such Notes are offered and sold
directly by the Company. Ownership of beneficial interests in a
Global Security will be limited to Participants or persons that
may hold interests through Participants. Ownership of beneficial
interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records
maintained by the depositary with respect to Participants'
interests in such Global Security or by Participants or by
persons that hold through Participants with respect to beneficial
owners' interests. The laws of some states require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Such ownership limits and such
laws may impair the ability to transfer beneficial interests in a
Global Security.
So long as the depositary for a Global Security, or its
nominee, is the holder of such Global Security, such depositary
or such nominee, as the case may be, will be considered the sole
owner or holder of the Notes represented by such Global Security
for all purposes under the Indenture governing such Notes. Except
as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Notes of the series
represented by such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of
Notes of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture
governing such Notes.
Principal and interest payments on Notes registered in the
name of or held by a depositary or its nominee will be made to
the depositary or its nominee, as the case may be, as the
registered owner of the Global Security representing such Notes.
The Company expects that the depositary for Notes of a series,
upon receipt of any
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payment of principal or interest in respect of a Global Security,
will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the
records of such depositary. The Company also expects that
payments by Participants or persons who hold interests through
Participants to owners of beneficial interests in such Global
Security held through such Participants or persons will be
governed by standing instructions and customary practices, as is
now the case with securities held for the accounts of customers
in bearer form or registered in "street name," and will be the
responsibility of such Participants or persons. None of the
Company, the Trustee for such Notes, any paying agent or any
registrar for such Notes will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a Global
Security for such Notes or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
If a depositary for Notes of a series is at any time
unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the
Company will issue Notes of such series in definitive form in
exchange for the Global Security or Securities representing the
Notes of such series. In addition, the Company may at any time
and in its sole discretion determine not to have any Notes of a
series represented by one or more Global Securities and, in such
event, will issue Notes of such series in definitive form in
exchange for the Global Security or Securities representing such
Notes.
CONVERSION AND EXCHANGE
The terms, if any, on which Notes of any series are
convertible into or exchangeable for Common Stock, Preferred
Stock or Capital Securities will be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions
for conversion or exchange, either mandatory, at the option of
the holder, or at the option of the Company, in which the number
of shares of Common Stock, Preferred Stock or Capital Securities
to be received by the holders of Notes would be calculated
according to the market price of Common Stock, Preferred Stock or
Capital Securities as of a time stated in the Prospectus
Supplement.
LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OR CONVERTIBLE
ECURITIES OF, AND MERGER OR SALE OF ASSETS BY, THE BANK
The Senior Indenture contains a covenant that (i) the
Company will not, and will not permit Wells Fargo Bank, National
Association (or its successors or survivors) ("Bank") to issue,
sell, transfer, assign, pledge or otherwise dispose of any shares
of Capital Stock of any class of the Bank or any securities
convertible or exchangeable into shares of Capital Stock of any
class of the Bank, unless, after giving effect to such
transaction and to shares issuable upon conversion or exchange of
outstanding securities convertible or exchangeable into such
Capital Stock (including such securities, if any, which may be
the subject of such transaction), at least 80% of the outstanding
shares of Capital Stock of each class of the Bank shall be owned
at that time directly or indirectly by the Company; and (ii) the
Company will not permit the Bank to merge or consolidate or
convey or transfer all or substantially all of its assets, unless
at least 80% of the outstanding shares of Capital Stock of each
class (after giving effect to such transaction and to shares
issuable upon conversion or exchange of outstanding securities
convertible or exchangeable into Capital Stock, including such
securities, if any, which may be issued in such transaction) of
the surviving corporation in the case of merger or consolidation
or of the transferee corporation in the case of a conveyance or
transfer shall be owned at that time directly or indirectly by
the Company (Section 4.07 of the Senior Indenture). There is no
similar covenant in the Subordinated Indenture.
EVENTS OF DEFAULT
An Event of Default with respect to any series of Senior
Notes is defined in the Senior Indenture as being: (a) default
for 30 days in payment of any installment of interest on Senior
Notes of such series; (b) default in payment of any principal on
Senior Notes of such series; (c) default by the Company in
performance in any material respect of any of the covenants
or agreements in the Senior Notes or in the Senior Indenture
specifically contained
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therein for the benefit of the Senior Notes of such series which
shall not have been remedied for a period of 90 days after
written notice to the Company by the Trustee or to the Company
and the Trustee by the holders of not less than 25% in principal
amount of the Senior Notes of such series and all other series so
benefited (all such series voting as one class) then outstanding;
or (d) certain events of bankruptcy, insolvency or reorganization
of the Company or of the Bank (Section 6.01 of the Senior
Indenture). No Event of Default described in clause (a), (b) or
(c) above with respect to a particular series of Senior Notes
necessarily constitutes an Event of Default with respect to any
other series of Senior Notes. In addition, the Senior Indenture
also defines an Event of Default with respect to any series of
Senior Notes as being default in the payment of any indebtedness
for borrowed money of the Company (including a default with
respect to Senior Notes of any series other than such series) or
of the Bank in principal amount in excess of $1,000,000 and the
expiration of any period of grace with respect thereto, or the
occurrence of any event of default as defined in any mortgage,
indenture or instrument (including the Senior Indenture)
evidencing, securing or under which there is issued any
indebtedness for borrowed money of the Company or of the Bank in
principal amount in excess of $1,000,000 that results in the
acceleration of such indebtedness, and such default in payment is
not cured or such acceleration is not rescinded or annulled
within 10 days after written notice to the Company by the Trustee
or to the Company and the Trustee by the holders of not less than
25% in principal amount of all Senior Notes then outstanding (all
series voting as one class), provided that so long as the Company
or the Bank, as the case may be, is contesting in good faith such
default in payment or event of default and the Company delivers
to the Trustee a certificate that the Company or the Bank, as the
case may be, is contesting in good faith the existence of such
payment default or event of default, then no Event of Default
shall be deemed to exist under this clause; such Event of Default
is herein called a "Cross Default."
The Senior Indenture provides that if an Event of Default
under clause (a), (b) or (c) above shall have occurred and be
continuing (but only if, in the case of clause (c), the Event of
Default is with respect to less than all series of Senior Notes
then outstanding under such Indenture), either the Trustee or the
holders of not less than 25% in principal amount of the then
outstanding Senior Notes of the series as to which the Event of
Default has occurred (each such series voting as a separate class
in the case of an Event of Default under clause (a) or (b), and
all such series voting as one class in the case of an Event of
Default under clause (c)) may declare the principal (or portion
thereof specified in the terms of such series) of all the Senior
Notes of such series, or of all such series in the case of an
Event of Default under clause (c) above, in each case together
with any accrued interest, to be due and payable immediately. The
Senior Indenture also provides that if an Event of Default under
clause (c) or (d) above or the Cross Default clause shall have
occurred and be continuing (but only if, in the case of clause
(c), the Event of Default is with respect to all the Senior Notes
then outstanding under the Senior Indenture), either the Trustee
or the holders of not less than 25% in principal amount of all
the Senior Notes then outstanding (voting as one class) may
declare the principal (or portion thereof specified in the terms
of any series) of all the Senior Notes, together with any accrued
interest, to be due and payable immediately. Upon certain
conditions, such declaration (including a declaration caused by a
default in the payment of principal or interest, the payment for
which has subsequently been provided) may be annulled by the
holders of a majority in principal amount of the Senior Notes of
the series then outstanding as were entitled to declare such
default (such series or all series voting as one class, if more
than one series is so entitled). In addition, past defaults may
be waived by the holders of a majority in principal amount of the
Senior Notes of all series then outstanding (all series voting as
one class), except a default in the payment of principal of or
interest on the Senior Notes or in respect of a covenant or
provision of the Senior Indenture which cannot be modified or
amended without the consent of the holder of each Senior Note so
affected (Sections 6.01 and 6.06 of the Senior Indenture).
An Event of Default with respect to any series of
Subordinated Notes is defined in the Subordinated Indenture as
being: (a) default for 30 days in payment of any installment of
interest on Subordinated Notes of such series; (b) default in
payment of any principal on Subordinated Notes of such series;
(c) default by the Company in performance in any material respect
of any of the covenants or agreements in the Subordinated Notes
or in the Subordinated Indenture specifically contained therein
for the benefit of the Subordinated Notes of such series which
shall not have been remedied for a period of 90 days after
written notice to the Company by the Trustee or to the Company and
the Trustee by the holders of not less than 25% in principal
amount of the Subordinated Notes of such
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series and all other series so benefited (all such series voting
as one class) then outstanding; or (d) certain events of
bankruptcy, insolvency or reorganization of the Company or the
Bank (Section 6.01 of the Subordinated Indenture). No Event of
Default described in clause (a), (b) or (c) above with respect to
a particular series of Subordinated Notes necessarily constitutes
an Event of Default with respect to any other series of
Subordinated Notes. No Event of Default described in clause (a),
(b) or (c) above permits acceleration of the payment of principal
of the Subordinated Notes. The Subordinated Indenture provides
that if an Event of Default under clause (d) above shall have
occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all the then outstanding
Subordinated Notes of each series as to which such Event of
Default has occurred (voting as one class) may declare the
principal (or a portion thereof specified in the terms of any
series) of all Subordinated Notes as to which such Event of
Default under clause (d) has occurred, together with any accrued
interest, to be due and payable immediately. Upon certain
conditions, such declaration may be annulled by a majority in
principal amount of the Subordinated Notes of the series then
outstanding as were entitled to declare such Event of Default
(such series or all series voting as one class, if more than one
series is so entitled). In addition, past defaults may be waived
by the holders of a majority in principal amount of the
Subordinated Notes of all series then outstanding as to which the
default has occurred (all series voting as one class), except a
default in the payment of principal or interest on any such
Subordinated Notes or in respect of a covenant or provision of
the Subordinated Indenture which cannot be modified or amended
without the consent of the holder of each Subordinated Note so
affected (Sections 6.01 and 6.06 of the Subordinated Indenture).
As a result of the provisions stated in the prior
paragraph, the Subordinated Indenture does not provide for any
right to accelerate the payment of principal of the Subordinated
Notes upon a default in payment of principal or interest or in
the performance of any covenant or agreement in the Subordinated
Notes or the Subordinated Indenture, or upon a default in the
payment or acceleration of other indebtedness of the Company. In
the case of a default in the payment of principal or interest,
the Trustee, subject to certain limitations and conditions, may
institute judicial proceedings to enforce payment of such
principal or interest (Section 6.02 of the Subordinated
Indenture).
Each Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during default to act with the
required standard of care, to be indemnified by the holders of
Notes issued under such Indenture before proceeding to exercise
any right or power under the Indenture at the request of such
holders (Section 7.02). Each Indenture also provides that the
holders of a majority in principal amount of the outstanding
Notes issued thereunder of all series affected (voting as one
class) may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the
Notes of such series (Section 6.06).
Each Indenture contains a covenant that the Company will
file annually with the Trustee a certificate as to the absence of
any default or specifying any default that exists (Section 4.06).
MODIFICATION OF THE INDENTURE AND WAIVER
Each Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than
66-2/3% in principal amount of the Notes of all series then
outstanding under such Indenture affected by such supplemental
indenture (voting as one class), to execute supplemental
indentures adding any provisions to or changing or eliminating
any of the provisions of such Indenture or modifying the rights
of the holders of Notes of each such series, except that no such
supplemental indenture may (i) extend the fixed maturity of any
Notes, or reduce the rate or extend the time of payment of any
interest thereon or on any overdue principal amount, or reduce
the principal amount thereof, or reduce any amount payable upon
any redemption thereof, or change the currency of payment of
principal of or any interest thereon or on any overdue principal
amount, without the consent of the holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all outstanding
Notes under such Indenture (Section 10.02).
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Each Indenture provides that the Company may omit in any
particular instance to comply with any covenant or condition
specifically contained in such Indenture for the benefit of one
or more series of Notes (including in the case of the Senior
Indenture, the covenant described above under "Limitation on Sale
or Issuance of Capital Stock or Convertible Securities of, and
Merger or Sale of Assets by, the Bank") if before the time for
such compliance the holders of a majority in principal amount of
the Notes of all series then outstanding under such Indenture,
and, in the case of the Subordinated Indenture, affected by the
omission (voting as one class) waive such compliance in such
instance, but such waiver shall not extend to or affect such
covenant or condition except to the extent so expressly waived
(Section 4.08 of the Senior Indenture and Section 4.07 of the
Subordinated Indenture).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that the Company may not merge or
consolidate or sell or convey all or substantially all of its
assets unless the successor corporation (if other than the
Company) is a domestic corporation, assumes the Company's
obligations under such Indenture and on the Notes issued under
such Indenture, and, after giving effect to such transaction, the
Company or the successor corporation would not be in default
under such Indenture (Section 11.01).
CONCERNING THE TRUSTEES
Chemical Bank is the successor Trustee under the Senior
Indenture. Notices to the Senior Trustee should be directed to
Chemical Bank, Corporate Trust Department, 450 West 33rd Street,
New York, New York 10001, Attention: Vice President. The Company
and the Bank maintain deposit accounts and conduct other banking
transactions with the Senior Trustee in the ordinary course of
business. Marine Midland Bank is the Trustee under the
Subordinated Indenture. Notices to the Subordinated Trustee
should be directed to Marine Midland Bank, 140 Broadway, New
York, New York 10015, Attention: Vice President-Corporate Trust
Administration. The Bank has entered into correspondent banking
relationships with the Subordinated Trustee and with its
corporate parent, The Hong Kong and Shanghai Banking Corporation
Limited ("HSBC"), involving various banking transactions in the
ordinary course of business. As part of their relationship, the
Bank and HSBC have an arrangement providing for the referral of
customers to each other. The Company and the parent of HSBC have
agreed in principle to establish a jointly owned trade bank
called Wells Fargo HSBC Trade Bank.
DESCRIPTION OF PREFERRED STOCK
The following description of Preferred Stock sets forth
certain general terms and provisions of the series of Preferred
Stock to which any Prospectus Supplement may relate. The specific
terms of a particular series of Preferred Stock will be described
in the Prospectus Supplement relating to such series of Preferred
Stock. If so indicated in the Prospectus Supplement relating
thereto, the terms of any such series of Preferred Stock may
differ from the terms set forth below. The description of
Preferred Stock set forth below and the description of the terms
of a particular series of Preferred Stock set forth in the
Prospectus Supplement relating thereto do not purport to be
complete and are qualified in their entirety by reference to the
Company's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and the Certificate of
Designation relating to such series of Preferred Stock, which are
filed or incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company is authorized to issue 25,000,000 shares of
Preferred Stock. The Board of Directors has the authority to
issue Preferred Stock in one or more series and to fix the
specific number of shares, title, liquidation preference of each
share, issue price, dividend rate or rates (or method of
calculation), dividend periods, dividend payment dates, any
redemption or sinking fund provisions, any conversion provisions
and any other specific terms of any series without any further
action by stockholders of the Company unless action is required by
applicable laws
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or regulations or by the terms of other outstanding preferred
stock. As of the date of this Prospectus, the Company had three
series of Preferred Stock outstanding consisting of 1,500,000
shares of Adjustable Rate Cumulative Preferred Stock, Series B,
477,500 shares of 9% Preferred Stock, Series C ("9% Preferred
Stock") represented by 9,550,000 Depositary Shares each
representing a one-twentieth interest in a share of 9% Preferred
Stock and 350,000 shares of 8-7/8% Preferred Stock, Series D (the
"8-7/8% Preferred Stock" and together with the 9% Preferred
Stock, the "Fixed Rate Preferred Stock") represented by 7,000,000
Depositary Shares each representing a one-twentieth interest in a
share of 8-7/8% Preferred Stock. The Adjustable Rate Preferred
Stock has a liquidation preference of $50 per share and the Fixed
Rate Preferred Stock has a liquidation preference of $500 per
share or $25 per Depositary Share. See "Description of Capital
Stock-Existing Preferred Stock." Unless otherwise specified in
the Prospectus Supplement relating thereto, the shares of each
series of Preferred Stock will rank on a parity as to dividends
and distributions of assets with each other and with the
Adjustable Rate Preferred Stock and the Fixed Rate Preferred
Stock.
The Prospectus Supplement will set forth the following
specific terms regarding the series of Preferred Stock offered
thereby: (i) the designation, number of shares and liquidation
preference per share; (ii) the initial public offering price;
(iii) the dividend rate or rates, or the method of determining
the dividend rate or rates; (iv) the index, if any, upon which
the amount of dividends, if any, is determined; (v) the dates on
which dividends, if any, will accrue and be payable and the
designated record dates for determining the holders entitled to
such dividends; (vi) any redemption or sinking fund provisions;
(vii) any conversion or exchange provisions; (viii) whether the
Company has elected to offer Depositary Shares as described under
"Description of Depositary Shares"; (ix) provisions for issuance
of global securities; (x) the currency (which may be composite
currency) in which payment of dividends, if any, shall be payable
if other than United States dollars; (xi) voting rights, if
different from those described under "Description of Preferred
Stock - Voting Rights"; and (xii) any additional terms,
preferences or rights.
As described under "Description of Depositary Shares,"
the Company may, at its option, elect to offer depositary shares
("Depositary Shares") evidenced by depositary receipts
("Depositary Receipts"), each representing a fractional interest
(to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the
particular series of the Preferred Stock issued and deposited
with a Depositary (as defined below).
Under regulations adopted by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), if the
holders of shares of any series of preferred stock of the Company
become entitled to vote for the election of directors because the
Board of Directors of the Company has failed to declare or pay
dividends on such series (see "Description of Preferred Stock -
Voting Rights"), such series may then be deemed a class of
"voting securities" and a holder of 25 percent or more of such
series (or a holder of five percent or more if it otherwise
exercises a "controlling influence" over the Company) may then be
subject to regulation as a bank holding company in accordance
with the Bank Holding Company Act of 1956, as amended. In
addition, at such time as such series is deemed a class of voting
securities, any other bank holding company may be required to
obtain the prior approval of the Federal Reserve Board to acquire
five percent or more of such series and any person other than a
bank holding company may be required to obtain the prior approval
of the Federal Reserve Board to acquire ten percent or more of
such series.
The shares of Preferred Stock will, when issued, be fully
paid and nonassessable and will have no preemptive rights.
The transfer agent, registrar, dividend disbursing agent
and redemption agent for the Preferred Stock will be specified in
the Prospectus Supplement relating thereto.
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DIVIDENDS
The holders of the Preferred Stock of each series will be
entitled to receive, when, as and if declared by the Board of
Directors of the Company, out of funds legally available
therefor, cumulative or noncumulative cash or other dividends at
such rate or rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such rates may be
fixed or variable or both. If variable, the formula used for
determining the dividend rate for each dividend period will be
set forth in the Prospectus Supplement. Dividends will be payable
to the holders of record as they appear on the stock books of the
Company on such record dates as will be fixed by the Board of
Directors of the Company and specified in the Prospectus
Supplement. If the Board of Directors of the Company fails to
declare a dividend payable on a dividend payment date on any
series of the Preferred Stock for which dividends are
noncumulative ("Noncumulative Preferred Stock"), then the holders
of such series of the Preferred Stock will have no right to
receive a dividend in respect of the dividend period ending on
such dividend payment date, and the Company will have no
obligation to pay a dividend for such period, whether or not
dividends on such series are declared payable on any future
dividend payment dates.
No dividends may be declared in respect of any dividend
period on any other series or class of preferred stock ranking on
a parity as to dividends with the Preferred Stock, Adjustable
Rate Preferred Stock or Fixed Rate Preferred Stock unless full
cumulative dividends on all outstanding shares of each series of
Preferred Stock on which dividends are cumulative and on the
Adjustable Rate Preferred Stock and the Fixed Rate Preferred
Stock shall have been paid in full or contemporaneously are
declared and paid through the most recent dividend payment date,
unless otherwise indicated in the Prospectus Supplement. In the
event that full cumulative dividends on such Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock
have not been declared and paid or set apart when due, the
Company may not declare or pay any dividends on, or make other
distributions on or make any payment on account of the purchase,
redemption, or other retirement, of its Common Stock or any other
stock of the Company ranking as to dividends or upon liquidation
junior to such Preferred Stock, Adjustable Rate Preferred Stock
or Fixed Rate Preferred Stock (other than, in the case of
dividends or distributions, dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock or such other junior ranking
stock), until full cumulative dividends on such Preferred Stock,
Adjustable Rate Preferred Stock and Fixed Rate Preferred Stock
are made or set apart for payment, unless otherwise indicated in
the Prospectus Supplement.
When dividends are not paid in full upon any series of
Preferred Stock, the Adjustable Rate Preferred Stock, the Fixed
Rate Preferred Stock and any other preferred stock ranking on a
parity therewith all dividends declared or made upon shares of
Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate
Preferred Stock and any other series of preferred stock ranking
on a parity therewith shall be declared pro rata so that the
amount of dividends declared per share on Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock 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 each series of the Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and
such other preferred stock bear to each other. No interest shall
be payable in respect of any dividend payment which may be in
arrears unless otherwise indicated in the Prospectus Supplement.
REDEMPTION
The shares of any series of Preferred Stock may be
redeemable at the option of the Company and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in
each case upon the terms, on the date or dates and at the
redemption price or prices set forth in the Prospectus Supplement
relating to such series. If fewer than all shares of Preferred
Stock are to be redeemed, the shares to be redeemed shall be
selected by the Company pro rata or by lot, or by any other
method determined by the Board of Directors to be equitable.
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Under regulations of the Federal Reserve Board, any
perpetual preferred stock with a feature permitting redemption at
the option of the issuer may qualify as capital only if the
redemption is subject to prior approval of the Federal Reserve
Board. Therefore, any redemption of Preferred Stock at the option
of the Company will require the prior approval of the Federal
Reserve Board in order for the Preferred Stock to qualify as
capital for bank regulatory purposes.
If any dividends on shares of any series of Preferred
Stock are in arrears, no shares of Common Stock or shares of
capital stock ranking junior to or on parity with the Preferred
Stock shall be redeemed and no shares of such series of Preferred
Stock shall be redeemed unless all outstanding shares of such
series are simultaneously redeemed, and the Company shall not
purchase or otherwise acquire any shares of such series;
provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of such series pursuant to a
purchase or exchange offer made on the same terms to holders of
all outstanding shares of such series.
Notice of redemption shall be given by mailing the same to
each record holder of the shares to be redeemed, not less than
40 nor more than 70 days prior to the date fixed for redemption
thereof, to the respective addresses of such holders as the same
shall appear on the Company's stock books. Each such notice shall
state: (i) the redemption date; (ii) the number of shares and
series of the Preferred Stock to be redeemed; (iii) the
redemption price and the manner in which such redemption price is
to be paid and delivered; (iv) the place or places where
certificates for such shares of Preferred Stock 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
such redemption date. If fewer than all shares of any series of
the Preferred Stock 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.
If notice of redemption has been given, from and after the
redemption date for the shares of the series of the Preferred
Stock called for redemption (unless default shall be made by the
Company in providing money for the payment of the redemption
price of the shares so called for redemption), dividends on the
shares of Preferred Stock so called for redemption will cease to
accrue, any right to convert the shares of Preferred Stock will
terminate, such shares will no longer be deemed to be
outstanding, and all rights of the holders thereof as
stockholders of the Company (except the right to receive the
redemption price) will cease. Upon surrender in accordance with
such notice of the certificates representing any shares so
redeemed (properly endorsed or assigned for transfer, if the
Board of Directors of the Company will so require and the notice
shall so state), the redemption price set forth above will be
paid out of funds provided by the Company. If fewer than all of
the shares represented by any such certificate are redeemed, a
new certificate will be issued representing the unredeemed shares
without cost to the holder thereof.
LIQUIDATION PREFERENCE
Upon any liquidation, dissolution or winding up of the
Company, the holders of shares of each series of Preferred Stock
and of the Adjustable Rate Preferred Stock and the Fixed Rate
Preferred Stock shall be entitled to receive out of the assets of
the Company available for distribution to stockholders, before
any distribution of assets is made to or set apart for the
holders of Common Stock or of any other shares of stock of the
Company ranking as to such a distribution junior to the shares of
such series, with respect to the Preferred Stock, an amount
described in the Prospectus Supplement relating to such series of
Preferred Stock, and with respect to the Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock, an amount equal
to the liquidation value of such shares. See "Description of
Capital Stock - Existing Preferred Stock." If, in any case of any
such liquidation, dissolution or winding up of the Company, the
assets of the Company or the proceeds thereof shall be
insufficient to pay in full the amounts payable with respect to
shares of each series of Preferred Stock, Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock and any other
shares of stock of the Company ranking as to any such
distribution on a parity therewith, the holders of shares of such
series of Preferred Stock, Adjustable Rate Preferred Stock and
Fixed Rate Preferred Stock and of such other shares will share
ratably in
any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are
entitled. After payment to the
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holders of shares of such series of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock of the full
preferential amounts to which they are entitled, the holders of
shares of such series of Preferred Stock, Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock will not be
entitled to any further participation in any distribution of
assets by the Company, unless otherwise provided in the
Prospectus Supplement. A consolidation or merger of the Company
with one or more corporations shall not be deemed to be a
liquidation, dissolution or winding up of the Company.
CONVERSION AND EXCHANGE
The terms, if any, on which shares of any series of
Preferred Stock are convertible into or exchangeable for Notes,
Common Stock or Capital Securities will be set forth in the
Prospectus Supplement relating thereto. Such terms may include
provisions for conversion or exchange, either mandatory, at the
option of the holder, or at the option of the Company, in which
the number of shares of Common Stock to be received by the
holders of Preferred Stock would be calculated according to the
market price of Common Stock as of a time stated in the
Prospectus Supplement.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement
relating to a particular series of the Preferred Stock, or except
as expressly required by applicable law, the holders of Preferred
Stock will not be entitled to vote.
On matters on which holders of such series and holders of
any other series of Preferred Stock are entitled to vote as a
single class, each full share of any series of the Preferred
Stock shall be entitled to one vote. Therefore, the voting power
of such series will depend on the number of shares in such
series, not the liquidation preference or initial offering price
of the shares of such series of the Preferred Stock. However, as
more fully described under "Description of Depositary Shares," if
the Company elects to provide for the issuance of Depositary
Shares representing fractional interests in a share of a series
of the Preferred Stock, the holders of each such Depositary Share
will, in effect, be entitled through the Depositary to such
fraction of a vote, rather than a full vote. To the extent the
Depositary does not receive specific instructions from the
holders of Depositary Shares relating to such Preferred Stock, it
will vote such shares of Preferred Stock in accordance with the
recommendation of the Company, unless otherwise indicated in the
Prospectus Supplement.
Whenever the Board of Directors shall have failed to
declare and pay dividends on a series of Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock for
dividend periods, whether or not consecutive, containing in the
aggregate a number of days equivalent to six calendar quarters,
the holders of such series of Preferred Stock, Adjustable Rate
Preferred Stock or Fixed Rate Preferred Stock (voting as a class
with all other affected series of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock ranking on a
parity therewith either as to dividends or upon liquidation and
upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two of
the authorized number of directors of the Company at the next
annual meeting of stockholders and at each subsequent meeting
until all dividends which the Board of Directors failed to
declare or pay on such series of Preferred Stock, Adjustable Rate
Preferred Stock or Fixed Rate Preferred Stock have been fully
paid or set apart for payment. In addition, under such
circumstances, certain holders of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock may become
subject to regulation as a bank holding company. See "Description
of Preferred Stock - General." The term of office of all
directors elected by the holders of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock shall
terminate immediately upon the termination of the right of the
holders of Preferred Stock, Adjustable Rate Preferred Stock and
Fixed Rate Preferred Stock to vote for directors.
So long as any shares of Preferred Stock, Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock remain
outstanding, the Company shall not, without the consent of the
holders of at least two-thirds of the shares of the affected
series of Preferred Stock, Adjustable Rate Preferred Stock and
Fixed Rate Preferred Stock
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outstanding at the time (voting separately as a class with all
other affected series of Preferred Stock ranking on a parity with
the affected series of Preferred Stock, Adjustable Rate Preferred
Stock and Fixed Rate Preferred Stock), (i) authorize, create or
issue, or increase the authorized amount of, any class or series
of stock ranking prior to the affected series of Preferred Stock,
Adjustable Rate Preferred Stock and Fixed Rate Preferred Stock as
to dividends or upon liquidation; or (ii) amend, alter or repeal
the provisions of the Company's Restated Certificate of
Incorporation, whether by merger, consolidation or otherwise, so
as to materially and adversely affect any right, preference,
privilege or voting power of the affected series of Preferred
Stock, Adjustable Rate Preferred Stock or Fixed Rate Preferred
Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized Common Stock or
authorized Preferred Stock or the creation and issuance of other
series of common stock or preferred stock ranking on a parity
with or junior to the affected series of Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock as
to dividends and upon liquidation shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus
Supplement of certain provisions of the Deposit Agreement (as
defined below) and of the Depositary Shares and Depositary
Receipts does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the form of Deposit
Agreement and form of Depositary Receipts relating to each series
of the Preferred Stock which are filed with the Commission as an
exhibit to the Registration Statement of which this Prospectus is
a part.
GENERAL
The Company may, at its option, elect to offer fractional
interests in shares of Preferred Stock. The shares of any series
of the Preferred Stock underlying the Depositary Shares will be
deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company
selected by the Company (the "Depositary"). The Prospectus
Supplement relating to a series of Depositary Shares will set
forth the name and address of the Depositary. Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share
will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting,
redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary
Receipts issued pursuant to the Deposit Agreement, each of which
will represent the fractional interest in a share of a particular
series of the Preferred Stock described in the Prospectus
Supplement.
Unless otherwise specified in the Prospectus Supplement, a
holder of Depositary Shares is not entitled to receive the whole
shares of Preferred Stock underlying the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to
the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the numbers of such Depositary
Shares owned by such holders on the relevant record date. The
Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary
Shares a fraction of one cent, and any balance not so distributed
shall be added to and treated as part of the next sum received by
the Depositary for distribution to record holders of Depositary
Shares.
In the event of a distribution other than in cash, the
Depositary will distribute property received by it to the record
holders of Depositary Shares entitled thereto, unless the
Depositary determines that it is not feasible to make
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such distribution, in which case the Depositary may, with the
approval of the Company, sell such property and distribute the
net proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to
the manner in which any subscription or similar rights offered by
the Company to holders of the Preferred Stock shall be made
available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the
Depositary Shares is subject to redemption, the Depositary Shares
will be redeemed from the proceeds received by the Depositary
resulting from the redemption, in whole or in part, of such
series of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable
with respect to such series of the Preferred Stock. If less than
all the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may
be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares
so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary
Shares will cease, except the right to receive the moneys payable
upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such
redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares. Any funds deposited
by the Company with the Depositary for any Depositary Shares
which the holders thereof fail to redeem shall be returned to the
Company after a period of two years from the date such funds are
so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders
of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the
record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Shares on
the record date (which will be the same date as the record date
for the Preferred Stock) will be entitled to instruct the
Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock underlying such holder's
Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such
instructions, and the Company will agree to take all action which
may be deemed necessary by the Depositary in order to enable the
Depositary to do so. To the extent the Depositary does not
receive specific instructions from the holders of Depositary
Shares relating to such Preferred Stock, it will vote shares of
Preferred Stock in accordance with the recommendation of the
Company, unless otherwise indicated in the Prospectus Supplement.
AMENDMENT OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary
Shares and any provision of the Deposit Agreement may at any time
be amended by agreement between the Company and the Depositary,
provided, however, that any amendment which materially and
adversely alters the rights of the existing holder of Depositary
Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the
Depositary Shares then outstanding.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges that arise solely from the existence of the
depositary arrangements. The Company will pay charges of the
Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will
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pay all other transfer and other taxes and governmental charges,
and, in addition, such other charges as are expressly provided in
the Deposit Agreement to be for their accounts.
TAXATION
Owners of Depositary Shares will be treated for Federal
income tax purposes as if they were owners of the Preferred Stock
represented by such Depositary Shares and, accordingly, will be
entitled to take into account for Federal income tax purposes
income and deductions to which they would be entitled if they
were holders of such Preferred Stock. In addition, (i) no gain or
loss will be recognized for Federal income tax purposes upon the
withdrawal of Preferred Stock in exchange for Depositary Shares
as provided in the Deposit Agreement, (ii) the tax basis of each
share of Preferred Stock to an exchanging owner of Depositary
Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor, and (iii) the
holding period for shares of the Preferred Stock in the hands of
an exchanging owner of Depositary Shares who held such Depositary
Shares at the time of the exchange thereof for Preferred Stock
will include the period during which such person owned such
Depositary Shares.
MISCELLANEOUS
The Company, or at the option of the Company, the
Depositary, will forward to the holders of Depositary Shares all
reports and communications from the Company which the Company is
required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable if
it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit
Agreement. The obligations of the Company and the Depositary
under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect
of any Depositary Shares or Preferred Stock unless satisfactory
indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary
Shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at
any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment. Such successor Depositary
will be appointed by the Company within 60 days after delivery of
the notice of resignation or removal. The Deposit Agreement may
be terminated at the direction of the Company or by the
Depositary if a period of 90 days shall have expired after the
Depositary has delivered to the Company written notice of its
election to resign and a successor depositary shall not have been
appointed. Upon termination of the Deposit Agreement, the
Depositary will discontinue the transfer of Depositary Receipts,
will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under the
Deposit Agreement except that the Depositary will continue to
deliver Preferred Stock certificates together with such dividends
and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property in exchange for
Depositary Receipts surrendered. Upon request of the Company, the
Depositary shall deliver all books, records, certificates
evidencing Preferred Stock, Depositary Receipts and other
documents respecting the subject matter of the Deposit Agreement
to the Company.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 150,000,000 shares of
Common Stock, par value $5.00 per share, and 25,000,000 shares of
preferred stock, par value $5.00 per share.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each
share of Common Stock held. All outstanding shares of Common
Stock are fully paid and nonassessable.
Holders of Common Stock are entitled to receive such
dividends as are declared by the Board of Directors out of funds
legally available therefor subject to the limitations described
below. In the event of liquidation, holders of the Common Stock
are entitled to receive pro rata any assets distributable after
payment of liabilities and the liquidation preference, if any, on
any shares of Preferred Stock then outstanding. There are no
conversion, preemptive or redemption rights of the Common Stock.
The dividend rights and liquidation preferences relating to the
preferred stock are superior to those relating to the Common
Stock.
The transfer agent and registrar for the Common Stock is
First Chicago Trust Company of New York, New York.
EXISTING PREFERRED STOCK
As of the date of this Prospectus, the Company had three
series of preferred stock outstanding, consisting of 1,500,000
shares of Adjustable Rate Cumulative Preferred Stock, Series B,
477,500 shares of 9% Preferred Stock, Series C represented by
9,550,000 Depositary Shares each representing a one-twentieth
interest in a share of 9% Preferred Stock and 350,000 shares of
8-7/8% Preferred Stock, Series D represented by 7,000,000
Depositary Shares each representing a one-twentieth interest in a
share of 8-7/8% Preferred Stock. The Adjustable Rate Preferred
Stock has a liquidation preference of $50 per share and the Fixed
Rate Preferred Stock has a liquidation preference of $500 per
share or $25 per Depositary Share. Unless full cumulative
dividends on the Preferred Stock, Adjustable Rate Preferred Stock
and Fixed Rate Preferred Stock have been paid, the Company may
not declare dividends on or make any other payment in respect of
any class of stock ranking junior to the Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock,
including the Common Stock. Whenever the Board of Directors of
the Company shall have failed to declare and pay dividends on any
series of Preferred Stock, Adjustable Rate Preferred Stock or
Fixed Rate Preferred Stock for dividend periods, whether or not
consecutive, containing in the aggregate a number of days
equivalent to six calendar quarters, the holders of such series
of Preferred Stock, Adjustable Rate Preferred Stock or Fixed Rate
Preferred Stock (voting as a class with all other affected series
of Preferred Stock, Adjustable Rate Preferred Stock or Fixed Rate
Preferred Stock ranking on a parity therewith either as to
dividends or upon liquidation and upon which like voting rights
have been conferred and are exercisable) will be entitled to vote
for the election of two of the authorized number of directors of
the Company at the next annual meeting of stockholders and at
each subsequent meeting until all dividends which the Board of
Directors failed to declare or pay on the affected series of
Preferred Stock, Adjustable Rate Preferred Stock or Fixed Rate
Preferred Stock have been fully paid or set apart for payment.
The holders of Preferred Stock, Adjustable Rate Preferred Stock
and Fixed Rate Preferred Stock have preference and priority over
holders of Common Stock in the event of liquidation for payment
of the liquidation preference of the Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock plus an
amount equal to all accrued and unpaid dividends thereon.
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CAPITAL SECURITIES
Capital Securities may consist of Common Stock, Preferred
Stock or other capital securities of the Company that qualify at
the time of exchange or conversion as Capital Securities as
determined by the Company's primary federal regulator. Such other
Capital Securities will have such terms as may be determined by
the Company. All such Capital Securities that will be
exchangeable for Offered Securities or issuable upon conversion
of Offered Securities will be, upon issuance, duly authorized,
validly issued and, if applicable, fully paid and nonassessable.
See "Description of Preferred Stock" and "Description of Capital
Stock - Common Stock."
PLAN OF DISTRIBUTION
The Company and certain holders of Offered Securities may
offer and sell the Offered Securities to one or more underwriters
for resale by them or through agents, or to investors directly.
The Prospectus Supplement with respect to each series of Offered
Securities will set forth the terms of the offering of the
Offered Securities, including the name or names of any
underwriters or agents, the purchase price of the Offered
Securities and the net proceeds to the Company or selling
securityholders from such sale, any underwriting discounts,
agency fees and other items constituting underwriters' or agents'
compensation, any initial public offering price and any discounts
or concessions allowed, reallowed or paid to dealers.
If any underwriters are involved in the offer and sale,
the Offered Securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Unless otherwise set forth in the accompanying
Prospectus Supplement, the obligations of the underwriters to
purchase the Offered Securities will be subject to certain
conditions precedent and the underwriters will be obligated to
purchase all the Offered Securities described in such Prospectus
Supplement if any are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Underwriters and agents may be entitled, under agreements
entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the
Securities Act of 1933.
Employees of the Bank may act as finders of purchasers of
Offered Securities. Their activities will be limited to
contacting customers and informing them of the terms of the
Offered Securities offered by the Company. The Company believes
that such persons are not required to be registered as brokers or
dealers under Section 3(a)(4) and 3(a)(5) of the Act since they
are acting as employees on behalf of a bank.
LEGAL OPINIONS
The legality of the Offered Securities offered hereby will
be passed upon for the Company by Brobeck, Phleger & Harrison,
San Francisco, for the underwriters, if any, by Davis Polk &
Wardwell, New York City and for the agents, if any, by Brown &
Wood, San Francisco. Davis Polk & Wardwell may rely on the
opinion of Brobeck, Phleger & Harrison as to matters of
California law. Davis Polk & Wardwell represents the Company from
time to time.
EXPERTS
The consolidated financial statements of the Company as of
December 31, 1994 and 1993 and for each of the years in the
three-year period ended December 31, 1994 incorporated by
reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 incorporated by reference herein and
elsewhere in the Registration Statement have been incorporated by
reference herein and in the Registration Statement in reliance
upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration Fee................................ $711,293
Printing and Engraving.......................... 20,000
Legal Fees...................................... 175,000
Accounting Fees................................. 40,000
Blue Sky and Legal Investment Fees.............. 35,000
Rating Agencies' Fees........................... 780,000
Trustee's Fees.................................. 40,000
Miscellaneous................................... 707
Total........................................$1,802,000
==========
The foregoing amounts are the best estimates of the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation
Law, the Registrant has broad powers to indemnify its directors
and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act of
1933. Registrant's By-Laws require Registrant to indemnify its
directors, officers and employees to the full extent permitted by
Delaware law against certain liabilities and expenses incurred as
a result of proceedings involving such persons in their
capacities as such, including proceedings under the Securities
Act of 1933 or the Securities Exchange Act of 1934. The By-Laws
further provide that rights conferred under such By-Laws shall
not be deemed to be exclusive of any other right such persons may
have or acquire under any statute, provision or any certificate
of incorporation, by-law, agreement, vote of stockholders,
disinterested directors or otherwise. The Restated Certificate of
Incorporation of Registrant precludes, with certain exceptions,
Registrant and its stockholders from recovering monetary damages
from directors for business decisions found by a court to have
been negligent or grossly negligent, including decisions relating
to a change in control of Registrant.
Reference is made to Article VI of the form of
Underwriting Agreements and Section 5 of the forms of
Distribution Agreement and Finder Agreement filed as exhibits
hereto pursuant to which underwriters, agents or finders may
under certain circumstances indemnify the directors and officers
of the Registrant. Directors and officers of the Registrant may
also be indemnified in certain circumstances under the terms of
other underwriting agreements entered into by the Registrant in
connection with prior public offerings.
ITEM 16. EXHIBITS.
1(a) - Form of firm commitment Underwriting Agreement for Senior
Notes. Incorporated by reference to Exhibit 1(a) to
Registration Statement No. 33-53514 filed on December 8,
1992.
1(b) - Form of firm commitment Underwriting Agreement for
Subordinated Notes. Incorporated by reference to
Exhibit 1(b) to Registration Statement No. 33-53514
filed on December 8, 1992.
1(c) - Form of firm commitment Underwriting Agreement for
Preferred Stock. Incorporated by reference to Exhibit 1(c)
to Registration Statement No. 33-53514 filed on December 8,
1992.
1(d) - Form of Distribution Agreement.
II-1.
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1(e) - Finder Agreement. Incorporated by reference
to Exhibit 1(d) of the Company's Report on
Form 8-K filed January 23, 1991.
1(f) - Amendment No. 1 to Finder Agreement. Incorporated by
reference to Exhibit 1(g) to Registration Statement
No. 33-42273 filed on August 19, 1991.
1(g) - Form of Amendment No. 2 to Finder Agreement. Incorporated
by reference to Exhibit 1(h) to Registration Statement
No. 33-42273 filed on August 19, 1991.
1(h) - Amendment No. 3 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement
No. 33-53514 filed on December 8, 1992.
1(i) - Amendment No. 4 to Finder Agreement. Incorporated by
reference to Exhibit 1(i) to Registration Statement
No. 33-51227 filed on November 30, 1993.
1(j) - Amendment No. 5 to Finder Agreement dated March 24, 1994.
1(k) - Form of Amendment No. 6 to Finder Agreement.
4(a) - Form of Senior Indenture, dated as of
September 1, 1984, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Registration Statement No. 2-93314
filed on September 18, 1984.
4(b) - Form of First Supplemental Indenture, dated
as of April 15, 1986, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(b) to Registration Statement No. 33-4573
filed on April 4, 1986.
4(c) - Form of Second Supplemental Indenture,
dated as of June 30, 1987, between Wells
Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to
Exhibit 4.10 to Form 8-B filed June 30, 1987.
4(d) - Form of Third Supplemental Indenture, dated
as of January 23, 1991, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Form 8-K filed on January 23, 1991.
4(e) - Form of Subordinated Indenture.
Incorporated by reference to Exhibit 4(e) to
Registration Statement No. 33-53514 filed on
December 8, 1992.
4(f) - Form of fixed rate Senior Note.
Incorporated by reference to Exhibit 4(b) to
Registration Statement No. 2-95939 filed on
February 20, 1985.
4(g) - Form of floating rate Senior Note.
Incorporated by reference to Exhibit 4(c) to
Registration Statement No. 2-95939 filed on
February 20, 1985.
4(h) - Form of original issue discount or zero
coupon Senior Note. Incorporated by reference
to Exhibit 4(d) to Registration Statement No.
2-95939 filed on February 20, 1985.
4(i) - Form of fixed interest bearing Subordinated
Note. Incorporated by reference to Exhibit
4(i) to Registration Statement No. 33-53514
filed on December 8, 1992.
II-2.
<PAGE>
4(j) - Form of floating interest bearing
Subordinated Note. Incorporated by reference
to Exhibit 4(j) to Registration Statement No.
33-53514 filed on December 8, 1992.
4(k) - Form of original issue discount or zero
coupon Subordinated Note. Incorporated by
reference to Exhibit 4(k) to Registration
Statement No. 33-53514 filed on December 8,
1992.
4(l) - Form of Medium-Term Fixed Rate Note.
4(m) - Form of Medium-Term Floating Rate Note.
4(n) - Restated Certificate of Incorporation of
the Company (incorporated by reference to
Exhibit 3(a) to Annual Report on Form 10-K
for the year ended December 31, 1993).
4(o) - Bylaws of the Company (incorporated by
reference to Exhibit 3(ii) to Form 8-K filed
on April 18, 1995).
4(p) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3(c) of Form 10-K filed March 21,
1994.
4(q) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed October 24, 1991.
4(r) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed March 5, 1992.
4(s) - Form of Deposit Agreement. Incorporated by
reference to Exhibit 4(f) to Registration
Statement No. 33-45066 filed on January 22,
1992.
4(t) - Form of Depositary Receipt. Incorporated by
reference to Exhibit 4(g) to Registration
Statement No. 33-45066 filed on January 22,
1992.
5(a) - Opinion of Brobeck, Phleger & Harrison with
respect to the validity of the Offered Securities.
12(a) - Computation of ratios of earnings to fixed charges
and preferred dividend requirements (consolidated).
23(a) - Consent of KPMG Peat Marwick LLP.
23(b) - Consent of Brobeck, Phleger & Harrison (included
in Exhibit 5(a)).
24(a) - Power of Attorney (included on page II-5).
25(a) - Statement of Eligibility of Chemical Bank.
25(b) - Statement of Eligibility of Marine Midland Bank.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the
prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective
amendment thereof) which individually or in the aggregate
represent a fundamental change in the information set forth in
the Registration Statement; and (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any
material change to such information in the Registration
Statement; provided, however, that (i) and (ii) do not apply if
the Registration is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by (i) and
(ii) is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15 of the Securities Exchange
Act of 1934 that are incorporated by reference in the
Registration Statement.
Notwithstanding subparagraph (ii) above, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling persons of the Registrant in the successful defense
of any action, suit or proceeding and other than indemnification
covered by insurance) is asserted by such director, officer or
controlling persons in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
II-4.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San
Francisco, State of California, this 22nd day of June, 1995.
WELLS FARGO & COMPANY
By: /s/ Alan J. Pabst
____________________________________
Alan J. Pabst
(Senior Vice President and Treasurer)
POWER OF ATTORNEY
KNOW EVERYONE BY THESE PRESENTS:
That the undersigned officers and directors of
Wells Fargo & Company, a Delaware corporation, do hereby
constitute and appoint Paul Hazen, William F. Zuendt, Rodney L.
Jacobs, Alan J. Pabst and any one of them, the lawful attorneys
and agents or attorney and agent, with power and authority to do
any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable
said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereto, and
each of the undersigned hereby ratifies and confirms all that
said attorneys and agents or any of them shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed below by
the following persons in the capacities and on the date
indicated:
Signature Title Date
/s/ Paul Hazen Chairman and Chief Executive June 22, 1995
- --------------------- Officer (Principal Executive
Paul Hazen Officer)
/s/ William F. Zuendt President and Director June 22, 1995
- ---------------------
William F. Zuendt
/s/ Rodney L. Jacobs Vice Chairman and Chief Financial June 22, 1995
- --------------------- Officer (Principal Financial Officer)
Rodney L. Jacobs
II-5.
<PAGE>
/s/ Frank A. Moeslein Executive Vice President and June 22, 1995
- --------------------- Controller (Principal Accounting
Frank A. Moeslein Officer)
/s/ H. Jessee Arnelle Director June 22, 1995
- ---------------------
H. Jessee Arnelle
/s/ William R. Breuner Director June 22, 1995
- ----------------------
William R. Breuner
/s/ William S. Davila Director June 22, 1995
- ---------------------
William S. Davila
/s/ Rayburn S. Dezember Director June 22, 1995
- -----------------------
Rayburn S. Dezember
/s/ Robert K. Jaedicke Director June 22, 1995
- ----------------------
Robert K. Jaedicke
/s/ Ellen M. Newman Director June 22, 1995
- -------------------
Ellen M. Newman
/s/ Philip J. Quigley Director June 22, 1995
- ---------------------
Philip J. Quigley
/s/ Carl E. Reichardt Director June 22, 1995
- ---------------------
Carl E. Reichardt
/s/ Donald B. Rice Director June 22, 1995
- ------------------
Donald B. Rice
/s/ Susan G. Swenson Director June 22, 1995
- --------------------
Susan G. Swenson
/s/ Chang-Lin Tien Director June 22, 1995
__________________
Chang-Lin Tien
/s/ John A. Young Director June 22, 1995
- -----------------
John A. Young
II-6.
<PAGE>
INDEX OF EXHIBITS
Found on
Sequentially
Numbered Page
_____________
1(a) - Form of firm commitment Underwriting Agreement for Senior
Notes. Incorporated by reference to Exhibit 1(a) to Registration
Statement No. 33-53514 filed on December 8, 1992.
1(b) - Form of firm commitment Underwriting Agreement for
Subordinated Notes. Incorporated by reference to Exhibit 1(b) to
Registration Statement No. 33-53514 filed on December 8, 1992.
1(c) - Form of firm commitment Underwriting Agreement for Preferred
Stock. Incorporated by reference to Exhibit 1(c) to Registration
Statement No. 33-53514 filed on December 8, 1992.
1(d) - Form of Distribution Agreement.
1(e) - Finder Agreement. Incorporated by reference
to Exhibit 1(d) of the Company's Report on
Form 8-K filed January 23, 1991.
1(f) - Amendment No. 1 to Finder Agreement. Incorporated by
reference to Exhibit 1(g) to Registration Statement No. 33-42273
filed on August 19, 1991.
1(g) - Form of Amendment No. 2 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement No. 33-42273
filed on August 19, 1991.
1(h) - Amendment No. 3 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement No. 33-53514
filed on December 8, 1992.
1(i) - Amendment No. 4 to Finder Agreement. Incorporated by
reference to Exhibit 1(i) to Registration Statement No. 33-51227
filed on November 30, 1993.
1(j) - Amendment No. 5 to Finder Agreement, dated March 24, 1994.
1(k) - Form of Amendment No. 6 to Finder Agreement.
4(a) - Form of Senior Indenture, dated as of
September 1, 1984, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Registration Statement No. 2-93314
filed on September 18, 1984.
II-7.
<PAGE>
4(b) - Form of First Supplemental Indenture, dated
as of April 15, 1986, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(b) to Registration Statement No. 33-4573
filed on April 4, 1986.
4(c) - Form of Second Supplemental Indenture,
dated as of June 30, 1987, between Wells
Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to
Exhibit 4.10 to Form 8-B filed June 30, 1987.
4(d) - Form of Third Supplemental Indenture, dated
as of January 23, 1991, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Form 8-K filed on January 23, 1991.
4(e) - Form of Subordinated Indenture.
Incorporated by reference to Exhibit 4(e) to
Registration Statement No. 33-53514 filed on
December 8, 1992.
4(f) - Form of fixed rate Senior Note. Incorporated by reference to
Exhibit 4(b) to Registration Statement No. 2-95939 filed on
February 20, 1985.
4(g) - Form of floating rate Senior Note. Incorporated by reference to
Exhibit 4(c) to Registration Statement No. 2-95939 filed on
February 20, 1985.
4(h) - Form of original issue discount or zero
coupon Senior Note. Incorporated by reference
to Exhibit 4(d) to Registration Statement No.
2-95939 filed on February 20, 1985.
4(i) - Form of fixed interest bearing Subordinated
Note. Incorporated by reference to Exhibit
4(i) to Registration Statement No. 33-53514
filed on December 8, 1992.
4(j) - Form of floating interest bearing
Subordinated Note. Incorporated by reference
to Exhibit 4(j) to Registration Statement
No. 33-53514 filed on December 8, 1992.
4(k) - Form of original issue discount or zero
coupon Subordinated Note. Incorporated by
reference to Exhibit 4(k) to Registration
Statement No. 33-53514 filed on December 8,
1992.
4(l) - Form of Medium-Term Fixed Rate Note.
4(m) - Form of Medium-Term Floating Rate Note.
4(n) - Restated Certificate of Incorporation of
the Company (incorporated by reference to
Exhibit 3(a) to Annual Report on Form 10-K
for the year ended December 31, 1993).
II-8.
<PAGE>
4(o) - Bylaws of the Company (incorporated by
reference to Exhibit 3(ii) to Form 8-K filed
on April 18, 1995).
4(p) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3(c) of Form 10-K filed March 21, 1994.
4(q) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed October 24, 1991.
4(r) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed March 5, 1992.
4(s) - Form of Deposit Agreement. Incorporated by
reference to Exhibit 4(f) to Registration
Statement No. 33-45066 filed on January 22,
1992.
4(t) - Form of Depositary Receipt. Incorporated by
reference to Exhibit 4(g) to Registration
Statement No. 33-45066 filed on January 22,
1992.
5(a) - Opinion of Brobeck, Phleger & Harrison with
respect to the validity of the Offered
Securities.
12(a) - Computation of ratios of earnings to fixed
charges and preferred dividend requirements
(consolidated).
23(a) - Consent of KPMG Peat Marwick LLP.
23(b) - Consent of Brobeck, Phleger & Harrison (included in Exhibit 5(a)).
24(a) - Power of Attorney (included on page II-5).
25(a) - Statement of Eligibility of Chemical Bank.
25(b) - Statement of Eligibility of Marine Midland Bank.
II-9.
WELLS FARGO & COMPANY
$2,500,000,000
Medium-Term Notes
and
Subordinated Medium-Term Notes, Series B
Due from Nine Months to 12 Years from Date of Issue
DISTRIBUTION AGREEMENT
___________________, 1995
Merrill Lynch & Co. CS First Boston Corporation
Merrill Lynch, Pierce, Fenner Park Avenue Plaza
& Smith Incorporated New York, N.Y. 10055
World Financial Center
North Tower, 10th Floor
New York, N.Y. 10281-1310
Goldman, Sachs & Co. Lehman Brothers
85 Broad Street Lehman Brothers Inc.
New York, N.Y. 10004 Three World Financial
Center, 12th Floor
New York, N.Y. 10285-1200
Morgan Stanley & Co. Incorporated Salomon Brothers Inc
1251 Avenue of the Americas Seven World Trade Center
New York, N.Y. 10020 New York, N.Y. 10048
Ladies and Gentlemen:
Wells Fargo & Company, a Delaware corporation (the
"Company"), confirms its agreement with each of you with respect to
the issue and sale by the Company of up to $2,500,000,000 (or the
equivalent thereof in one or more foreign currencies or currency
units) aggregate principal amount of its Medium-Term Notes due from
Nine Months to Twelve Years from Date of Issue (the "Notes", which
term shall include the Senior Notes and the Subordinated Notes).
The "Senior Notes" are the Company's Medium-Term Notes to be issued
under an Indenture dated as of September 1, 1984 between the
Company and Chemical Bank, as successor trustee (the "Senior
Trustee"), as amended by the First Supplemental Indenture dated as
of April 15, 1986, the Second Supplemental Indenture dated as of
June 30, 1987 and the Third Supplemental Indenture dated as of
January 23, 1991 (collectively, the "Senior Indenture"). The
"Subordinated Notes" are the Company's Subordinated Medium-Term
Notes, Series B to be issued under an Indenture dated as of
December 10, 1992 (the "Subordinated Indenture") between the
Company and Marine Midland Bank (the "Subordinated Trustee"). The
Notes will have the maturities, interest rates, redemption
provisions, if any, and other terms as set forth in
<PAGE>
one or more supplements to the Prospectus referred to below. The
Senior Indenture and the Subordinated Indenture are sometimes
herein referred to together as the "Indentures" or individually as
an "Indenture", and the Senior Trustee and the Subordinated Trustee
are sometimes herein referred to together as the "Trustees" or
individually as a "Trustee". The Company shall designate at the
time of such issuance whether the Notes to be issued are Senior
Notes or Subordinated Notes.
Subject to the terms and conditions stated herein and subject
to the reservation by the Company of the right to sell, and to
accept offers to purchase, Notes directly, through subsidiaries or
through finders which are subsidiaries, the Company hereby
(i) appoints Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), CS First Boston Corporation
("First Boston"), Goldman, Sachs & Co. ("Goldman, Sachs"), Lehman
Brothers, Lehman Brothers Inc. (including its affiliate Lehman
Government Securities Inc. ("Lehman Brothers"), Morgan Stanley &
Co. Incorporated ("Morgan Stanley") and Salomon Brothers Inc
("Salomon Brothers") (individually, an "Agent" and collectively,
the "Agents") as agents of the Company (which agency shall be
exclusive, except as provided below) for the purpose of soliciting
purchases of the Notes from the Company by others and (ii) agrees
that whenever the Company determines to sell Notes directly to an
Agent as principal for resale to others it will enter into a Terms
Agreement relating to such sale in accordance with the provisions
of Section 2(b) hereof.
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to, and agrees with, each Agent, as of the
date hereof, as of the date of each acceptance by the Company of an
offer for the purchase of Notes (whether through an Agent as agent
or to an Agent as principal), as of the date of each delivery of
Notes (whether through an Agent as agent or to an Agent as
principal) and as of any time that any Registration Statement or
Prospectus (each as hereinafter defined) is amended or
supplemented:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission")
registration statements on such form (Registration Nos. 33-51227
and 33-___), each of which registration statements, as amended (if
applicable), has become effective, for the registration under the
Act of the Notes. References herein to a "Registration Statement"
and the "Registration Statements" shall be deemed to refer to and
include each such registration statement, including the exhibits
thereto, as amended (if applicable) at the date of this Agreement.
Each Registration Statement meets and will meet the requirements
set forth in Rule 415(a)(1)(x) under the Act and complies and will
comply in all other material respects with said Rule. The Company
proposes to file with the Commission from time to time, pursuant to
Rule 424(b) under the Act, supplements to the prospectus and
prospectus supplement relating to the Notes, which will describe
certain terms of the Notes and, subject to Section 3(a), prior to
any such filing will advise each Agent of all further information
(financial and other) with respect to the Company to be set forth
therein other than the specific terms of the Notes offered thereby.
The prospectus and prospectus supplement relating to the Notes in
the form transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act on ___________________, 1995 are herein
called, together, the "Prospectus"; provided, however, that if in
any case any revised prospectus or prospectus supplement shall be
provided by the Company to the Agents for use in connection with
the offering of the Notes, whether or not the same is required to
be filed pursuant to Rule 424(b) under the Act, the term
"Prospectus" shall be deemed to refer to and include such revised
prospectus or prospectus supplement from and after the time it is
first provided to the Agents for such use. Any reference herein to
a Registration Statement or Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Act or
under the Securities Exchange Act of 1934 (the "Exchange Act") on
or before the date of this Agreement, or the date of such
Prospectus, as the case may be; and any reference
2
<PAGE>
herein to the terms "amend", "amendment" or "supplement" with
respect to any Registration Statement or Prospectus shall be deemed
to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement or the date of such
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(b) Each Registration Statement and the
Prospectus, each as amended or supplemented, and the Indentures
comply and will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the Exchange Act and the
respective rules thereunder and (ii) neither any Registration
Statement nor the Prospectus, each as amended or supplemented,
contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no
representations or warranties as to (x) that part of any
Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of either
Trustee or (y) the information contained in or omitted from any
Registration Statement or the Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information concerning an Agent furnished in writing to the Company
by such Agent expressly for use in such Registration Statement and
such Prospectus or any amendment or supplement thereto.
(c) The Company has been duly incorporated, is
validly existing in good standing under the laws of the State of
Delaware, is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, and has all requisite corporate
power and authority to own its property and to conduct its business
as described in the Prospectus, except to the extent that the
failure to have such corporate power and authority would not have a
material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(d) Wells Fargo Bank, National Association (the
"Bank") has been duly organized and is validly existing as a
national banking association and continues to hold a valid
certificate to do business as a national banking association under
the laws of the United States; the Bank has all requisite corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, except where
the failure to have such corporate power and authority would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise; all of the issued and outstanding
capital stock of the Bank has been duly and validly issued and is
fully paid and non-assessable (subject, however, to the provisions
of Section 55, Title 12, United States Code); and all of the
capital stock of the Bank is owned by the Company, directly or
indirectly, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(e) Each of this Agreement and, if applicable, any
Terms Agreement entered into in connection with a sale of Notes to
which this representation and warranty relates has been duly
authorized by all necessary corporate action on the part of the
Company and has been duly executed and delivered by the Company.
(f) Each of the Senior Indenture and the
Subordinated Indenture has been duly authorized by all necessary
corporate action on the part of the Company and has been duly
executed and delivered by the Company and is a valid and binding
agreement of the Company and is duly qualified under the Trust
Indenture Act.
(g) The Notes have been duly authorized by all
necessary corporate action on the part of the Company and, when
executed and authenticated in accordance with the applicable
3
<PAGE>
Indenture and delivered to and paid for by the purchaser thereof,
will be valid and binding obligations of the Company entitled to
the benefits of such Indenture, except as any rights thereunder may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(h) The execution, delivery and performance of
this Agreement, any Terms Agreement and the Indentures by the
Company and the issuance and sale of the Notes will not contravene
any provision of applicable law or the restated certificate of
incorporation or bylaws of the Company or the articles of
association or bylaws of the Bank, or any provision of any
agreement or other instrument binding upon the Company or the Bank.
(i) No authorization, consent, approval of or
filing with any governmental or regulatory body is required to be
obtained by the Company in connection with the execution, delivery
and performance of this Agreement, any Terms Agreement, or either
Indenture or the issuance and sale of the Notes, other than the
filing with the Commission in connection with the registration of
the Notes under the Act and the qualification of each Indenture
under the Trust Indenture Act and except that the offer and sale of
the Notes in certain jurisdictions may be subject to the Blue Sky
or securities laws of such jurisdictions.
(j) Since the respective dates as of which
information is given in the Registration Statements and the
Prospectus, as amended or supplemented, except as may otherwise be
stated therein or contemplated thereby, (i) there has been no
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business and (ii) there
have been no material transactions entered into by the Company or
any of its subsidiaries other than those in the ordinary course of
business.
(k) All of the securities registered under the
Prior Registration Statements have been issued and sold by the
Company. "Prior Registration Statements" mean the Company's
registration statements on Form S-3, as amended (if applicable),
registration nos. 33-39045, 33-42273, 33-45066 and 33-53514.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to the
terms and conditions herein set forth, each Agent will use its best
efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth in the Prospectus as then amended or
supplemented. The Company reserves the right to sell, and to
accept offers to purchase, Notes directly, through subsidiaries or
through finders which are subsidiaries. Each Agent is authorized
to engage the services of any other broker or dealer in connection
with the offer or sale of Notes purchased by such Agent as
principal for resale to others, but such Agent is not authorized to
appoint sub-agents.
The Company agrees to pay each Agent, as
consideration for soliciting the sale of any Notes, a commission in
the form of a discount equal to the following percentage of the
principal amount of each Note sold by such Agent:
4
<PAGE>
TERM COMMISSION RATE
More than 9 months to less than 1 year .125%
1 year to less than 18 months .150
18 months to less than 2 years .200
2 years to less than 3 years .250
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 6 years .500
6 years to less than 7 years .550
7 years to less than 8 years .600
8 years to less than 9 years .600
9 years to less than 10 years .600
10 years to 12 years .625
Each Agent is authorized to solicit offers to purchase Notes only
in principal amounts of $1,000 (or any other such amount that may
be specified as a minimum denomination in an amendment or
supplement to the Prospectus) or any amount in excess thereof which
is a whole multiple of $1,000. Each Agent shall communicate to the
Company, orally or in writing, each offer received by it to
purchase Notes that it has not rejected pursuant to the last
sentence of this paragraph. The Company shall have the sole right
to accept offers to purchase Notes and may reject any such offer in
whole or in part. Each Agent shall have the right to reject, in
its discretion reasonably exercised, any offer received by it to
purchase the Notes in whole or in part, and any such rejection
shall not be deemed a breach of its agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to
an Agent, as principal, shall be made in accordance with the terms
of this Agreement and a separate agreement which will provide for
the sale of such Notes to such Agent. Each such separate
agreement, whether oral (and confirmed in writing, which may be by
facsimile transmission) or in writing is herein referred to as a
"Terms Agreement" and shall include such information (as
applicable) as is specified in Exhibit A hereto. An Agent's
commitment to purchase Notes pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by such
Agent pursuant hereto, the price to be paid to the Company for such
Notes (which, if not so specified in the Terms Agreement, shall be
at a discount equivalent to the applicable commission set forth in
this Section 2), the time and date of delivery of and payment for
such Notes (the "Settlement Date") and the place of such delivery
and payment, any provisions relating to rights and obligations of
purchasers acting together with the Agent in the reoffering of the
Notes, and such other provisions (including further terms of the
Notes) as may be mutually agreed upon. The Agents may utilize a
selling or dealer group in connection with the resale of the Notes
purchased by such Agents and the Agents may sell any such Notes to
any dealers at a discount not in excess of the discount payable to
the Agents by the Company. Such Terms Agreement
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shall also specify any requirements for opinions of counsel,
officer's certificates and letters from KPMG Peat Marwick LLP
pursuant to Section 4 hereof and whether the stand-off agreement
pursuant to Section 3(l) hereof will apply.
(c) Procedures. Each Agent and the Company agree
to perform the respective duties and obligations specifically
provided to be performed by them in the Medium-Term Notes
Administrative Procedures (attached hereto as Exhibit B) (the
"Procedures"), as amended from time to time. The Procedures may be
amended only by written agreement of the Company and each Agent.
The Procedures shall be deemed to refer to both the Senior Notes
and the Subordinated Notes. References in the Procedures to each
"Agent" or to the "Agents" shall mean the Agents, individually or
collectively, as the case may be.
(d) Delivery. The documents required to be
delivered by Section 4 of this Agreement shall be delivered at the
offices of Brobeck, Phleger & Harrison, San Francisco, California,
counsel for the Company, on the date hereof, or at such other time
and place as the Agents and the Company may agree upon in writing
(the "Closing Date").
3. AGREEMENTS. The Company agrees with each Agent
that:
(a) Prior to the termination of the offering of
the Notes pursuant to this Agreement, the Company will not file any
amendment of any Registration Statement or file or use any
supplement to the Prospectus unless the Company has previously
furnished to each Agent a copy thereof for its review and will not
file or use any such proposed amendment or supplement to which the
Agents reasonably object; provided, however, that the foregoing
requirement shall not apply to (i) any amendment or supplement
relating exclusively to securities offered by the Company other
than the Notes or (ii) any of the Company's periodic filings with
the Commission on Forms 10-K, 10-Q or 8-K, copies of which filings
the Company will cause to be delivered to the Agents promptly after
being mailed for filing with the Commission; and provided, further,
that any amendment or supplement containing no disclosure other
than specific terms of Notes and the manner of distribution thereof
need be furnished only to the Agent to or through whom such Notes
are to be sold (the "Participating Agent"). Subject to the
foregoing sentence, the Company will promptly cause supplements to
the Prospectus to be filed with or transmitted for filing to the
Commission pursuant to Rule 424. The Company will promptly advise
the Agents (i) of the filing of any amendment or supplement to the
Prospectus (other than a supplement to the Prospectus containing no
disclosure other than specific terms of Notes and the manner of
distribution thereof, in which case the Company will advise only
the Participating Agent), (ii) of the filing and effectiveness of
any amendment to any Registration Statement, (iii) of any request
by the Commission for any amendment of any Registration Statement
or any amendment of or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of any Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its reasonable best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) (i) Prior to the termination of the offering
of the Notes pursuant to this Agreement or at any time when a
prospectus relating to the Notes is required to be delivered under
the Act, if any event occurs or condition exists as a result of
which any Registration Statement or the Prospectus as then amended
or supplemented would not reflect any facts or events which,
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individually or in the aggregate, represent a fundamental change in
the information set forth in such Registration Statement or
Prospectus, as then amended or supplemented, and/or would include
an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if, in the opinion of the Company, it is necessary
at any time to amend or supplement any Registration Statement or
the Prospectus, as then amended or supplemented, to comply with the
Act, the Company promptly will notify the Agents by telephone (with
confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, the Agents shall
forthwith suspend such solicitation and cease using the Prospectus
as then amended or supplemented. If the Company shall decide to
amend or supplement any Registration Statement or the Prospectus,
as then amended or supplemented, it shall so advise the Agents
promptly by telephone (with confirmation in writing) and will
promptly prepare and file with the Commission an amendment or
supplement to such Registration Statement or Prospectus as then
amended or supplemented which will include such facts or events
and/or will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus
to the Agents in such quantities as they may reasonably request;
and if such amendment or supplement, and any documents,
certificates and opinions furnished to the Agents pursuant to
paragraph (f) below in connection with the preparation or filing of
such amendment or supplement, are satisfactory in all respects to
the Agents, upon the filing of such amendment or supplement with
the Commission or effectiveness of an amendment to any Registration
Statement, the Agents will resume the solicitation of offers to
purchase Notes hereunder. Notwithstanding any other provision of
this Section 3(b), during the period any Agent shall have the legal
obligation to deliver a prospectus with respect to the sale by it
of Notes which it has acquired under a Terms Agreement pursuant to
Section 2(b), if any event described in this Section 3(b) occurs,
the Company will forthwith prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statements or Prospectus, as then amended or supplemented,
satisfactory in all respects to such Agent, will supply such
amended or supplemented Prospectus to such Agent in such quantities
as it shall reasonably request and shall furnish to such Agent
pursuant to paragraph (f) below such documents, certificates and
opinions as it may request in connection with the preparation and
filing of such amendment or supplement. Upon the request of the
Company, each Agent will inform the Company whether it has the
legal obligation to deliver a prospectus with respect to the sale
by it of Notes which it has acquired under a Terms Agreement
pursuant to Section 2(b).
(c) As soon as practicable, the Company will make
generally available to its securityholders and to the Agents an
earnings statement satisfying the provisions of Section 11(a) of
the Act and Rule 158 under the Act, and, not later than 45 days
after the end of the 12-month period beginning at the end of each
fiscal quarter of the Company during which the effective date of
any post-effective amendment to any Registration Statement occurs,
the Company will make generally available to its securityholders an
earnings statement covering such 12-month period that will satisfy
the provisions of such Section 11(a) and Rule 158.
(d) The Company will furnish to each Agent and
counsel for the Agents copies of each Registration Statement, the
Prospectus and all amendments of and supplements to such documents
(other than amendments or supplements containing no disclosure
other than specific terms of Notes with respect to which such Agent
is not a Participating Agent), in each case as soon as available
and in such quantities as such Agent reasonably requests.
(e) The Company will arrange for the qualification
of the Notes for sale under the laws of such jurisdictions as the
Agents may reasonably designate with the approval of the Company,
will maintain such qualifications in effect so long as required for
the distribution of the
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Notes pursuant to this Agreement and will arrange for the
determination of the legality of the Notes for purchase by
institutional investors.
(f) The Company shall furnish to the Agents such
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business, operations and
affairs of the Company, each Registration Statement, the
Prospectus, any amendments or supplements thereto, the Indentures,
the Notes, this Agreement, the Procedures, any Terms Agreement and
the performance by the Company and the Agents of their respective
obligations hereunder and thereunder as the Agents may from time to
time reasonably request.
(g) The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statements and
all amendments thereto, (ii) the preparation, issuance and delivery
of the Notes, (iii) the fees and disbursements of the Company's
accountants and of the Trustees and their respective counsel,
(iv) the qualification of the Notes under securities laws in
accordance with the provisions of Section 3(e), including filing
fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the
preparation of any Blue Sky Memorandum and any Legal Investment
Memorandum, (v) the reasonable fees of counsel for the Agents
incurred in connection with the offering and sale of the Notes
(including the reasonable fees and expenses of special counsel in
any state in the event it should become necessary to obtain
opinions of such counsel as to usury or other matters of local law
in order to obtain or maintain the qualifications referred to in
Section 3(e) hereof) other than in connection with the sale of
Notes to an Agent as principal pursuant to a Terms Agreement
(unless so provided in such Terms Agreement), (vi) the printing and
delivery to the Agents in quantities as hereinabove stated of
copies of the Registration Statements and all amendments thereto,
and of the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Agents of copies of the
Indentures and any Blue Sky Memorandum and any Legal Investment
Memorandum, (viii) any fees charged by rating agencies for the
rating of the Notes, (ix) any advertising and other out-of-pocket
expenses incurred with the approval of the Company, and (x) the
fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.
(h) Each acceptance by the Company of an offer for
the purchase of Notes (whether through an Agent as Agent or to an
Agent as principal) and each sale of Notes, shall be deemed to be
an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate
theretofore delivered pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent,
or such Agent, of the Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it
is understood that such representations and warranties shall relate
to each Registration Statement and the Prospectus as amended and
supplemented to each such time).
(i) Each time any Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rates,
redemption provisions or maturities offered on the Notes or for a
change deemed immaterial in the reasonable opinion of the Agents),
or if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement, the Company
will deliver or cause to be delivered forthwith to the Agents or
such Agent, as the case may be, a certificate of the Company signed
by the Chairman of the Board, the President, any Vice Chairman, or
any Vice President, dated the date of the effectiveness of such
amendment or filing or supplement or sale, as the case may be, in
form reasonably satisfactory to the Agents or such Agent, as the
case may be, to the
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<PAGE>
effect that the statements contained in the certificate referred to
in Section 4(c) that was last furnished to the Agents (either
pursuant to Section 4(c) or pursuant to this Section 3(i)) are true
and correct as though made at and as of such time (except that such
statements shall be deemed to relate to each Registration Statement
and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 4(c) relating to each
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate. In lieu
of such certificate, an officer eligible to sign a certificate
furnished to the Agents pursuant to this Section 3(i) may furnish
to the Agents or such Agent, as the case may be, a letter to the
effect that the Agents or such Agent, as the case may be, may rely
on such last certificate as though it were dated the date of such
letter authorizing reliance on such certificate (except that the
statements in such last certificate will be deemed to relate to
each Registration Statement and the Prospectus as amended and
supplemented to the time of such letter authorizing reliance).
(j) Each time any Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rates,
redemption provisions or maturities offered on the Notes or for a
change deemed immaterial in the reasonable opinion of the Agents)
or if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to the Agents or
such Agent, as the case may be, a written opinion of counsel of the
Company satisfactory to the Agents or such Agent, as the case may
be (who may be Chief Counsel of the Company); provided, however,
that such counsel need not provide an opinion regarding the
financial statements or other financial information included in
such amendment or supplement. Any such opinion shall be dated the
date of the effectiveness of such amendment or filing of such
supplement or sale, as the case may be, in form satisfactory to
counsel for the Agents, and shall be of the same tenor as the
opinions referred to in Sections 4(b)(i) and 4(b)(ii) but modified
to relate to each Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to
the Agents may furnish to the Agents or such Agent, as the case may
be, a letter to the effect that the Agents or such Agent, as the
case may be, may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
on such last opinion (except that statements in such last opinion
will be deemed to relate to each Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such letter authorizing reliance).
(k) Each time that any Registration Statement or
the Prospectus is amended or supplemented to set forth amended or
supplemental financial information in such Registration Statement
or Prospectus, or if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall cause KPMG Peat Marwick LLP, its
independent public accountants, forthwith to furnish the Agents or
such Agent, as the case may be, a letter, dated the date of the
effectiveness of such amendment or the date of filing of such
supplement, or the date of such sale, as the case may be, in form
satisfactory to the Agents or such Agent, as the case may be, of
the same tenor as the letter referred to in Section 4(d), with
regard to the amended or supplemental financial information
included or incorporated by reference in each Registration
Statement and the Prospectus, as amended or supplemented to the
date of such letter. In lieu of such letter, if since the date of
the last such letter furnished to the Agents pursuant to this
Section 3(k), none of the Registration Statements or the Prospectus
has been amended or supplemented to include amended or supplemented
financial information, KPMG Peat Marwick LLP may furnish to the
Agents or such Agent, as the case may be, a letter to the effect
that the Agents or such Agent, as the case may be, may rely on the
last such letter furnished to the Agents pursuant to this
Section 3(k) as though it were dated the date of such letter
authorizing reliance on such last letter (except that
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<PAGE>
statements in such last letter will be deemed to relate to each
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(l) If so provided in a Terms Agreement, between
the date of such Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the
prior consent of the Agent or Agents, as the case may be, party
thereto, offer or sell, or enter into any agreement to sell, any
debt securities of the Company having terms, including, without
limitation, interest rate and maturity, substantially similar to
the Notes (other than the securities that are to be sold pursuant
to such Terms Agreement and commercial paper in the ordinary course
of business).
(m) Upon the issuance and sale of Notes in
aggregate principal amount equal to the amount theretofore
authorized for issuance and sale by the Company's Board of
Directors or a committee thereof, the Company will notify the
Agents thereof and will cease the issuance of Notes until such time
as (i) the issuance and sale of additional amounts of Notes have
been duly authorized and (ii) the Company has delivered an opinion
of counsel satisfactory to the Agents to such effect.
(n) The Company will not issue any Notes except as
have been duly authorized by all necessary corporate action on the
part of the Company.
(o) The Company will prepare, with respect to any
Notes to be sold through or to the Agents pursuant to this
Agreement, a pricing supplement with respect to such Notes in a
form previously approved by the Agents, will use its reasonable
best efforts to deliver (by telecopy or overnight express) final
copies of such pricing supplement to the relevant Agent or Agents,
as the case may be, in New York City by the close of business, New
York City time, on the applicable "trade date" with respect to such
Notes, but in no event later than 11:00 a.m., New York City time,
on the business day immediately following the "trade date" for such
Notes, and will file such pricing supplement pursuant to
Rule 424(b) under the Act not later than the applicable date and
time required by such Rule 424(b).
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. The
obligations of each Agent to solicit offers to purchase the Notes
as agent of the Company and the obligations of each Agent to
purchase Notes as principal pursuant to any Terms Agreement will be
subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements
of the Company's officers made in each certificate furnished
pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) (i) No stop order suspending the effectiveness
of any Registration Statement shall be in effect and no proceedings
for that purpose shall have been instituted or threatened, (ii)
there shall have been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of
business, from that set forth in any Registration Statement or the
Prospectus as amended or supplemented to the date of any such
solicitation or agreement to purchase, (iii) there shall not have
occurred since the date of any such solicitation or agreement to
purchase any material adverse change in the financial markets in
the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis, the effect of
which makes it, in the judgment of the relevant Agent,
impracticable to
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<PAGE>
market the Notes or to enforce contracts for the sale of the Notes
and (iv) the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as
of the date of any such solicitation or agreement to purchase shall
not have been lowered since that date and no such rating agency
shall have publicly announced that it has under surveillance or
review with possible negative implications, its rating of any debt
securities of the Company.
(b) At the Closing Date, the Agents shall have
received:
(i) The opinion, dated as of such date, of
Brobeck, Phleger & Harrison, counsel for the Company to the effect
that:
(A) This Agreement (and, if the
opinion is being given pursuant to Section 3(j) on account of the
Company having entered into a Terms Agreement, the applicable Terms
Agreement) has been duly authorized, executed and delivered by the
Company.
(B) Each of the Indentures has been
duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance
with its terms, except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability, and is
duly qualified under the Trust Indenture Act of 1939, as amended.
(C) Upon determination by the Pricing
Committee of the Board of Directors [or by a duly authorized
officer of the Company] of the precise terms of the issuance and
sale, up to $2,500,000,000 aggregate principal amount of the Notes
will have been duly authorized by all necessary corporate action on
the part of the Company and, when the Pricing Committee [or any
such officer, as the case may be,] so determines and the Notes are
executed and issued by the Company in accordance with the Senior
Indenture or Subordinated Indenture, as the case may be,
authenticated and delivered by or on behalf of the Senior Trustee
or Subordinated Trustee, as the case may be, in accordance with the
Senior Indenture or Subordinated Indenture, as the case may be, and
delivered to the account of and paid for by the purchasers, will be
valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability, and will be entitled to the benefits of the
Senior Indenture or Subordinated Indenture, as the case may be.
(D) Each Registration Statement, and
any post-effective amendments thereto, are effective under the
Securities Act of 1933, and to the best of such counsel's
knowledge, no proceedings for a stop order are pending or
threatened under Section 8(d) of said Act.
(E) No authorization, consent,
approval of or filing with any governmental or regulatory body is
required to be obtained by the Company in connection with the
execution, delivery and performance of this Agreement or the
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Indentures or the issuance and sale of the Notes, other than the
filing with and order of the Securities and Exchange Commission in
connection with the registration of the Notes under the Securities
Act of 1933, as amended, the qualification of the Indentures under
the Trust Indenture Act of 1939, as amended, and except that the
offer and sale of the Notes in certain jurisdictions may be subject
to the Blue Sky or securities laws of such jurisdictions.
(F) The execution, delivery and
performance of this Agreement and the Indentures by the Company and
the issuance and sale of the Notes will not contravene any
provision of applicable law or regulation of the State of
California or the United States, the General Corporation Law of the
State of Delaware or the restated certificate of incorporation or
bylaws of the Company or the articles of association or bylaws of
the Bank.
(G) The statements in the Prospectus
under the captions "Description of Medium-Term Notes" and
"Description of Notes" insofar as such statements constitute
summaries of the documents referred to therein, fairly present the
information called for with respect to such documents.
(H) The statements as to matters of
law or legal conclusions contained under the caption "Federal Tax
Considerations" in the Prospectus were correct as of the date the
Prospectus was filed with the Commission, and such statements
fairly present the matters and legal conclusions referred to
therein.
(I) Such counsel (1) believes that
each document filed pursuant to the Exchange Act (except as to
financial statements and other financial information included therein
as to which such counsel need not express any belief) and incorporated
by reference in the Prospectus complied when so filed as to form in
all material respects with the Exchange Act and the applicable
rules and regulations thereunder, (2) has no reason to believe that
(except as to financial statements and other financial information
included therein as to which such counsel need not express any
belief) any part of any Registration Statement or amendment thereto
if applicable (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Act, when such
part became effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(3) believes that each Registration Statement and the Prospectus,
as amended or supplemented, if applicable (except as to financial
statements and other financial information included therein as to
which such counsel need not express any belief), comply as to form
in all material respects with the Act and the applicable rules and
regulations thereunder and (4) has no reason to believe that
(except as to financial statements and other financial information
included therein as to which such counsel need not express any
belief) any Registration Statement or the Prospectus, as amended or
supplemented, if applicable, contains any untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
With respect to the matters set forth in (I)
above, Brobeck, Phleger & Harrison may state that such counsel's
belief is based upon participation in the preparation of each
Registration Statement and Prospectus (other than the documents
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incorporated by reference in the Prospectus (the "Incorporated
Documents")) and any amendments and supplements thereto and review
and discussion of the contents thereof (including the Incorporated
Documents), but is without independent check or verification,
except as specified.
(ii) The opinion, dated as of such date of
the Chief Counsel of the Company to the effect that:
(A) The Company has been duly
incorporated, is validly existing in good standing under the laws
of the State of Delaware, is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, and has all
requisite corporate power and authority under its articles of
incorporation and the laws of the United States and of the State of
Delaware to own, lease and operate its properties and conduct its
business as described in the Prospectus.
(B) The Bank has been duly organized
and is validly existing as a national banking association and
continues to hold a valid certificate to do business as a national
banking association under the laws of the United States; the Bank has
all requisite corporate power and authority to own, lease and operate
its properties and conduct its business as described in the
Prospectus; all of the issued and outstanding capital stock of the
Bank has been duly and validly issued and is fully paid and
non-assessable (subject, however, to the provisions of Section 55,
Title 12, United States Code); and all of the capital stock of the
Bank is owned by the Company, directly or indirectly, free and
clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(C) To the best knowledge and
information of such counsel, there are no contracts, indentures,
mortgages, loan agreements, leases or other documents of a
character required to be described or referred to in any
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as exhibits thereto other than those
specifically described or referred to therein or in the documents
incorporated by reference therein or filed as exhibits thereto or
as exhibits to documents incorporated by reference therein, and the
description thereof or reference thereto was correct at the date
that the relevant Registration Statement, Prospectus or document
incorporated by reference in any Registration Statement or the
Prospectus, as the case may be, in each case as amended or
supplemented, which contains such description or reference was
filed with the Commission; provided, however, that such counsel
need not express any opinion regarding such documents to the extent
that they are required to be described or referred to in the
financial statements but not otherwise in any Registration
Statement or the Prospectus, as amended or supplemented.
(D) The statements as to matters of
law or legal conclusions contained under the caption "Supervision and
Regulation" in the Company's latest annual report on Form 10-K
which is incorporated by reference in the Prospectus were correct
as of the date such report was filed with the Commission and such
statements fairly present the matters and legal conclusions
referred to therein.
(E) To the knowledge of such counsel,
the execution, delivery and performance of this Agreement, the
Senior Indenture and the
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Subordinated Indenture by the Company and the issuance and sale of
the Notes will not contravene any provision of any agreement or
other instrument binding upon the Company or the Bank.
(iii) The opinion of Brown & Wood, counsel for
the Agents, dated as of such date, with respect to the issuance and
sale of the Notes, the Indentures, the Registration Statements and
the Prospectus, as amended or supplemented, and other related
matters as the Agents may reasonably require; and the Company shall
have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
On the Settlement Date with respect to any Terms Agreement, the
Agent or Agents, as the case may be, party to such Terms Agreement
shall have received such opinions, dated as of such Settlement
Date, and rendered by such counsel, as called for by such Terms
Agreement.
(c) On the Closing Date and at each Settlement
Date with respect to any Terms Agreement, if called for by such
Terms Agreement, the Company shall have furnished to the Agents or
the Agent, as the case may be, party to such Terms Agreement a
certificate of the Company, signed by the Chairman of the Board,
the President, any Vice Chairman or any Vice President, dated as of
the Closing Date or such Settlement Date, as the case may be, to
the effect that the signer of such certificate has examined each
Registration Statement and Prospectus, as amended or supplemented,
and this Agreement and that:
(i) the representations and warranties of
the Company in this Agreement are true and correct in all material
respects on and as of the date of such certificate, and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
the date of such certificate;
(ii) no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the respective dates as of which
information is given in any Registration Statement or the
Prospectus, as amended or supplemented, there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, from that set forth in
any Registration Statement and the Prospectus, as amended or
supplemented.
(d) On the Closing Date, and at each Settlement
Date with respect to any Terms Agreement, if called for by such
Terms Agreement, KPMG Peat Marwick LLP shall have furnished to the
Agents or the Agent, as the case may be, party to such Terms
Agreement a letter or letters, dated as of the Closing Date or such
Settlement Date, as the case may be, in form and substance
satisfactory to the Agents or such Agent, as the case may be,
confirming that they are independent accountants within the meaning
of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder, and containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
or incorporated by reference into the Registration Statements and
the Prospectus, as amended or supplemented.
14
<PAGE>
(e) At the Closing Date and at each Settlement
Date with respect to any Terms Agreement, the Company shall have
furnished to the Agents or the Agent, as the case may be, party to
such Terms Agreement such further information, certificates and
documents as the Agents or such Agent, as the case may be, may
reasonably request.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Agent and each person,
if any, who controls such Agent within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
or investigations in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement as originally filed or
in any amendment thereof, or in any prospectus subject to
completion, or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, action or investigation; provided, however, that
the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information concerning such Agent furnished
to the Company by such Agent specifically for use therein. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Agent agrees, severally and not jointly,
to indemnify and hold harmless the Company, each person, if any,
who controls the Company within the meaning of either the Act or
the Exchange Act, each director of the Company and each officer of
the Company who signs any Registration Statement or any amendment
thereto to the same extent as the foregoing indemnity from the
Company to such Agent, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which
was made therein in reliance upon and in conformity with written
information concerning such Agent furnished to the Company by such
Agent specifically for use therein. This indemnity agreement will
be in addition to any liability which such Agent may otherwise
have.
(c) Promptly after receipt by an indemnified party
under this Section 5 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5, notify
the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 5. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if
the defendants in 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, the indemnified party or parties shall have the right to
select separate counsel to assert such legal
15
<PAGE>
defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 5 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any
local counsel), which counsel shall be approved (x) in the case of
paragraph (a) of this Section 5, by Merrill Lynch or, if Merrill
Lynch is not an indemnified party, by the Agents that are
indemnified parties, representing the indemnified parties under
such paragraph (a) who are parties to such action or (y) in the
case of paragraph (b) of this Section 5, by the Company,
representing the indemnified parties under such paragraph (b) who
are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
All fees and expenses of such counsel shall be reimbursed as they
are incurred. Notwithstanding the foregoing, no indemnifying party
shall be liable hereunder to the indemnified party for any
settlement of any proceeding effected by such indemnified party
without the written consent of the indemnifying party.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in Section 5(a) is due in accordance with its terms but is for
any reason held by a court to be unavailable from any indemnifying
party on grounds of policy or otherwise, each indemnifying party
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the
indemnified party may be subject in such proportions so that each
Agent, severally and not jointly, is responsible for that portion
represented by the percentage that the aggregate commissions
received by such Agent pursuant to Section 2 from the sale of the
Notes that were the subject of the claim for indemnification bears
to the aggregate principal amount of the Notes sold to or through
such Agent that were the subject of the claim for indemnification
and the Company is responsible for the balance; provided, that no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each person who controls an Agent
within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as the Agent. For purposes of this
Section 5, each person who controls the Company within the meaning
of either the Act or the Exchange Act, each director of the Company
and each officer of the Company who signs any Registration
Statement or any amendment thereto shall have the same rights to
contribution as the Company. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties
under this Section 5(d), notify such party or parties from whom
contribution may be sought of the commencement thereof (it being
understood that any notice given pursuant to the first sentence of
Section 5(c) shall be sufficient for this purpose), but the
omission to notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this Section 5(d).
16
<PAGE>
6. POSITION OF THE AGENTS. In soliciting offers to
purchase the Notes, each Agent is acting solely as agent for the
Company, and not as principal. An Agent shall make reasonable
efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Company, but such Agent shall not have
any liability to the Company in the event any such purchase is not
consummated for any reason.
7. TERMINATION. This Agreement may be terminated at
any time either by the Company or, as to any Agent, by the Company
or such Agent upon the giving of written notice of such termination
to the other party hereto. Any Terms Agreement may be terminated
by the Agent party thereto, immediately upon notice to the Company,
at any time prior to the Settlement Date relating to a Terms
Agreement if, during the period beginning on the date of such Terms
Agreement and ending on such Settlement Date or, in the case of
clause (i) below, since the respective dates as of which
information is given in the Registration Statements, as amended,
(i) there has been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there shall have occurred any material adverse
change in the financial markets in the United States or any
outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which makes it, in
the judgment of the relevant Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if
trading generally on either the New York Stock Exchange or the
American Stock Exchange shall have been suspended, or minimum or
maximum prices or maximum ranges for prices shall have been fixed
by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have
been declared by either Federal or New York authorities or if a
banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign
currency or currencies in which the Notes are denominated or
payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have
been lowered since that date or if such rating agency shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any debt securities
of the Company.
8. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of each Agent
set forth in or made pursuant to this Agreement or any Terms
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of an Agent or the Company or
any of the officers, directors or controlling persons referred to
in Section 5 hereof, and will survive delivery of and payment for
the Notes. The provisions of Sections 3(g) (other than the
provisions of Section 3(g)(v) (if applicable) in connection with
any Terms Agreement terminated pursuant to clause (ii) or (iii) of
Section 7), 5 and 6 hereof shall survive the termination or
cancellation of this Agreement or the Terms Agreement.
9. NOTICES. All communications hereunder will be in
writing and effective only on receipt, and, if sent to Merrill
Lynch, will be mailed, delivered or telecopied and confirmed to it
at North Tower, 10th Floor, World Financial Center, New York,
New York 10281-1310, Attention: Product Management, (telecopier:
(212) 449-2234); if sent to CS First Boston Corporation, will be
mailed, delivered or telegraphed and confirmed to it at Short and
Medium Term Finance, Park Avenue Plaza, New York, New York 10055,
Attention: Richard W. Kurz, Director (telecopier: (212) 318-
1498); if sent to Goldman, Sachs, will be mailed, delivered or
telegraphed and confirmed to it at
17
<PAGE>
85 Broad Street, New York, New York 10004, Attention: Registration
Department Credit Department, Credit Control-Medium Term Notes
(telecopier: (212) 357-8680); if sent to Lehman Brothers, will be
mailed, delivered, or telegraphed and confirmed to it at 3 World
Financial Center, New York, New York 10285, Attention: Medium-Term
Note Department, 12th Floor (telecopier: (212) 528-1718 or (212)
619-7165 (over 10 pages); if sent to Morgan Stanley, will be
mailed, delivered or telegraphed and confirmed to it at 1251 Avenue
of the Americas, New York, New York 10020, Attention: Manager,
Credit Department (telecopier: (212) 703-4575), with a copy to it
at 1221 Avenue of the Americas, New York, New York 10020,
Attention: Manager, Short and Medium-Term Finance Department
(telecopier: (212) 764-7490); if sent to Salomon Brothers, will be
mailed, delivered or telegraphed and confirmed to it at Seven World
Trade Center, New York, New York 10048, Attention: Medium-Term
Note Department, 31st Floor (telecopier: (212) 783-2274); or, if
sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 444 Market Street, San Francisco, California
94163, Attention: Senior Vice President and Treasurer (telecopier:
(415) 989-3851).
10. SUCCESSORS. This Agreement and any Terms Agreement
will inure to the benefit of and be binding upon the parties hereto
and thereto and their respective successors and the officers and
directors and controlling persons referred to in Section 5 hereof,
and no other person will have any right or obligation hereunder.
11. APPLICABLE LAW. This Agreement and any Terms
Agreement will be governed by and construed in accordance with the
laws of the State of New York.
18
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a
binding agreement between the Company and the Agents.
Very truly yours,
WELLS FARGO & COMPANY
By:_______________________
Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:__________________________________
CS FIRST BOSTON CORPORATION
By:__________________________________
_____________________________________
(GOLDMAN, SACHS & CO.)
LEHMAN BROTHERS INC.
By:__________________________________
MORGAN STANLEY & CO. INCORPORATED
By:__________________________________
SALOMON BROTHERS INC
By:__________________________________
19
<PAGE>
EXHIBIT A
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES
AND
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
DUE FROM NINE MONTHS TO 12 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
[Name of Agent]
[Address of Agent]
Attention: ________________________
Re: DISTRIBUTION AGREEMENT DATED _____________________, 1995
Subject to the terms and conditions of the Distribution
Agreement, the undersigned agrees to purchase Medium-Term Notes in
the amount and with the terms specified below:
Principal Amount: $_______________________
(or principal amount of foreign currency)
Ranking: Senior Note ( ) Subordinated Note ( )
(check one)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
First Interest Reset Date:
Spread, if any:
Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Dates:
Calculation Agent:
A-1
<PAGE>
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Annual Redemption Price Reduction:
If Repayable:
Repayment Date(s):
Repayment Price:
Original Issuance Date:
Stated Maturity Date:
Purchase Price: %
Settlement Date and Time:
Place of Settlement:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
[The following documents referred to in the Distribution Agreement
shall be required as a condition to settlement:
Officer's Certificate to the effect called for by
Section 3(i) of the Distribution Agreement.
Legal Opinions to the same effect called for by
Section 3(j) of the Distribution Agreement.
Comfort Letter to the same effect called for by
Section 3(k) of the Distribution Agreement.
Stand-off Agreement as provided by Section 3(l) of
the Distribution Agreement.]
Arrangement for Payment
of Counsel for Agent:
[NAME OF AGENT]
By:_______________________
Title:
Accepted:
WELLS FARGO & COMPANY
By_________________________
Title:
A-2
<PAGE>
EXHIBIT B
ADMINISTRATIVE PROCEDURES
B-1
Exhibit 1(j)
WELLS FARGO & COMPANY
$1,500,000,000
Medium-Term Notes
and
Subordinated Medium-Term Notes, Series B
Due from Nine Months to 12 Years from Date of Issue
AMENDMENT NO. 5
TO THE
FINDER AGREEMENT DATED JANUARY 23, 1991,
AS AMENDED BY
AMENDMENT NO. 1 DATED MARCH 14, 1991
AND
AMENDMENT NO. 2 DATED SEPTEMBER 27, 1991
AND
AMENDMENT NO. 3 DATED APRIL 29, 1992
AND
AMENDMENT NO. 4 DATED DECEMBER 23, 1992
March 24, 1994
Wells Fargo Bank, National Association
420 Montgomery Street
San Francisco, California 94163
Ladies and Gentlemen:
Reference is made to the Finder Agreement dated
January 23, 1991 (the "Finder Agreement"), as amended by Amendment
No. 1 thereto dated March 14, 1991 ("Amendment No. 1"), Amendment
No. 2 thereto dated September 27, 1991 ("Amendment No. 2"),
Amendment No. 3 thereto dated April 29, 1992 ("Amendment No. 3")
and Amendment No. 4 thereto dated December 23, 1992 ("Amendment No.
4") each between Wells Fargo & Company, a Delaware corporation (the
"Company"), and Wells Fargo Bank, National Association (the
"Finder"), with respect to the issuance and sale by the Company of
its Medium-Term Notes described therein. The parties hereto
acknowledge that (i) this Amendment No. 5 ("Amendment No. 5") shall
relate only to the Company's Medium-Term Notes that are issued, or
as to which offers to purchase have been accepted by the Company,
on or after the date
1.
<PAGE>
hereof; and (ii) the Company's Medium-Term Notes that have been
issued and sold, or as to which offers to purchase have been
accepted by the Company, prior to the date hereof shall not be
affected by this Amendment No. 5, but shall instead continue to be
governed by the Finder Agreement, as amended by Amendment No. 1,
Amendment No. 2, Amendment No. 3 and Amendment No. 4 or the
Distribution Agreement dated March 24, 1994 between the Company and
the Agents named therein, as the case may be. Terms not otherwise
defined herein shall have the meanings ascribed to them in the
Finder Agreement.
With respect to the Medium-Term Notes issuable pursuant
to this Amendment No. 5, references in the Finder Agreement to the
"Agreement" shall be deemed to mean the Finder Agreement as amended
by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No.
4 and this Amendment No. 5 thereto, and references therein to the
date of the Agreement shall be deemed to be to the date of this
Amendment No. 5 thereto. Additionally, references to the Senior
Trustee or Subordinated Trustee, as the case may be, shall be
deemed to refer to its authenticating agent if one has been
appointed.
The Finder Agreement, as amended by Amendment No. 1,
Amendment No. 2, Amendment No. 3 and Amendment No. 4, is hereby
further amended by the parties thereto as follows:
1. THE INTRODUCTORY PARAGRAPH BEGINNING ON PAGE 1 THEREOF, AS
AMENDED BY AMENDMENT NO. 1, AMENDMENT NO. 2, AMENDMENT NO. 3 AND
AMENDMENT NO. 4 IS DELETED AND REPLACED WITH THE FOLLOWING:
Wells Fargo & Company, a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the
issue and sale by the Company of up to $1,500,000,000 (or the
equivalent thereof in one or more foreign currencies or currency
units) aggregate principal amount of its Medium-Term Notes due from
Nine Months to Twelve Years from Date of Issue (the "Notes," which
term shall include the Senior Notes and the Subordinated Notes).
The "Senior Notes" are the Company's Medium-Term Notes to be issued
under an Indenture dated as of September 1, 1984 between the
Company and Chemical Bank as successor trustee (the "Senior
Trustee"), as amended by the First Supplemental Indenture dated as
of April 15, 1986, the Second Supplemental Indenture dated as of
June 30, 1987 and the Third Supplemental Indenture dated as of
January 23, 1991 (collectively, the "Senior Indenture"). The
"Subordinated Notes" are the Company's Subordinated Medium-Term
Notes, Series B, to be issued under an Indenture dated as of
December 10, 1992 (the "Subordinated Indenture") between the
Company and Marine Midland Bank (the "Subordinated Trustee"). The
Notes will have the maturities, interest rates, redemption
provisions, if any, and other terms as set forth in one or more
supplements to the
2.
<PAGE>
Prospectus referred to below. The Senior Indenture and the
Subordinated Indenture are sometimes herein referred to together as
the "Indentures" or individually as an "Indenture," and the Senior
Trustee and the Subordinated Trustee are sometimes herein referred
to together as the "Trustees" or individually as a "Trustee." The
Company shall designate at the time of such issuance whether the
Notes to be issued are Senior Notes or Subordinated Notes. The
Finder Agreement supersedes the agreement dated April 21, 1986.
2. SECTION 1.(A) BEGINNING ON PAGE 2 THEREOF, AS AMENDED BY
AMENDMENT NO. 1, AMENDMENT NO. 2, AMENDMENT NO. 3 AND AMENDMENT NO.
4, IS DELETED AND REPLACED WITH THE FOLLOWING:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission")
registration statements on such Form (Registration Nos. 33-39045,
33-42273, 33-45066, 33-53514 and 33-51227), which registration
statements, as amended (if applicable), have become effective, for
the registration under the Act of the Notes. Such registration
statements, including the exhibits thereto, as amended at the date
of this Agreement, are hereinafter called the "Registration
Statements." The Registration Statements, as amended at the date
of this Agreement, meet the requirements set forth in Rule
415(a)(1)(x) under the Act and comply in all other material
respects with said Rule. The Company proposes to file with the
Commission from time to time, pursuant to Rule 424(b)(3) under the
Act, supplements to the prospectus and prospectus supplement
relating to the Notes transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act which will describe certain
terms of the Notes and, subject to Section 3(a), prior to any such
filing will advise the Finder of all further information (financial
and other) with respect to the Company to be set forth therein
other than the specific terms of the Notes offered thereby. Such
prospectus and prospectus supplement in the form transmitted for
filing with the Commission pursuant to Rule 424(b) under the Act on
March __, 1994, is herein called the "Prospectus." Any reference
herein to the Registration Statements or Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Act or under the Securities Exchange Act of 1934 (the "Exchange
Act") on or before the date of this Agreement, or the date of such
Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statements or Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after
the date
3.
<PAGE>
of this Agreement or such Prospectus, as the case may be, deemed to
be incorporated therein by reference.
3. THE FIRST DOLLAR AMOUNT CONTAINED IN SECTION 4(B)(I)(C) ON
PAGE 13 THEREOF, AS AMENDED BY AMENDMENT NO. 1, AMENDMENT NO. 2,
AMENDMENT NO. 3 AND AMENDMENT NO. 4, IS DELETED AND REPLACED WITH
$1,500,000,000 AND THE PARENTHETICAL PHRASE IN SUCH SECTION IS
DELETED AND REPLACED WITH "(IN ADDITION TO $4,574,071,000 AGGREGATE
PRINCIPAL AMOUNT OF NOTES PREVIOUSLY AUTHORIZED FOR ISSUANCE)."
4. REFERENCES IN THE PROCEDURES (AS DEFINED IN SECTION 2(C) ON
PAGE 6 THEREOF) TO EACH "AGENT" OR TO THE "AGENTS" SHALL MEAN THE
AGENTS, INDIVIDUALLY OR COLLECTIVELY, AS THE CASE MAY BE.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the Agents.
Very truly yours,
WELLS FARGO & COMPANY
By: ________________________
Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: _____________________________
By: _____________________________
Title:
4.
Exhibit 1(k)
WELLS FARGO & COMPANY
$2,500,000,000
Medium-Term Notes
and
Subordinated Medium-Term Notes, Series B
Due from Nine Months to 12 Years from Date of Issue
AMENDMENT NO. 6
TO THE
FINDER AGREEMENT DATED JANUARY 23, 1991,
AS AMENDED BY
AMENDMENT NO. 1 DATED MARCH 14, 1991
AND
AMENDMENT NO. 2 DATED SEPTEMBER 27, 1991
AND
AMENDMENT NO. 3 DATED APRIL 29, 1992
AND
AMENDMENT NO. 4 DATED DECEMBER 23, 1992
AND
AMENDMENT NO. 5 DATED MARCH 24, 1994
____ __, 1995
Wells Fargo Bank, National Association
420 Montgomery Street
San Francisco, California 94163
Ladies and Gentlemen:
Reference is made to the Finder Agreement dated
January 23, 1991 (the "Finder Agreement"), as amended by Amendment
No. 1 thereto dated March 14, 1991 ("Amendment No. 1"), Amendment
No. 2 thereto dated September 27, 1991 ("Amendment No. 2"),
Amendment No. 3 thereto dated April 29, 1992 ("Amendment No. 3"),
Amendment No. 4 thereto dated December 23, 1992 ("Amendment No. 4")
and Amendment No. 5 thereto dated March 24, 1994 ("Amendment No.
5") each between Wells Fargo & Company, a Delaware corporation (the
"Company"), and Wells Fargo Bank, National Association (the
"Finder"), with respect to the issuance and sale by the Company of
its Medium-Term Notes described therein. The parties hereto
acknowledge that (i) this Amendment No. 6 ("Amendment No. 6") shall
relate only to the Company's Medium-Term Notes that are issued, or
as to which offers to purchase have been accepted by the Company,
on or after the date hereof; and (ii) the Company's Medium-Term
Notes that have been issued and sold, or as to which offers to
1.
<PAGE>
purchase have been accepted by the Company, prior to the date
hereof shall not be affected by this Amendment No. 6, but shall
instead continue to be governed by the Finder Agreement, as amended
by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No.
4 and Amendment No. 5 or the Distribution Agreement dated
___________, 1995 between the Company and the Agents named therein,
as the case may be. Terms not otherwise defined herein shall have
the meanings ascribed to them in the Finder Agreement.
With respect to the Medium-Term Notes issuable pursuant
to this Amendment No. 6, references in the Finder Agreement to the
"Agreement" shall be deemed to mean the Finder Agreement as amended
by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No.
4, Amendment No. 5 and this Amendment No. 6 thereto, and references
therein to the date of the Agreement shall be deemed to be to the
date of this Amendment No. 6 thereto. Additionally, references to
the Senior Trustee or Subordinated Trustee, as the case may be,
shall be deemed to refer to its authenticating agent if one has
been appointed.
The Finder Agreement, as amended by Amendment No. 1,
Amendment No. 2, Amendment No. 3, Amendment No. 4 and Amendment No.
5, is hereby further amended by the parties thereto as follows:
1. THE DOLLAR AMOUNT IN THE HEADING IS DELETED AND REPLACED WITH
$2,500,000,000.
2. THE INTRODUCTORY PARAGRAPH BEGINNING ON PAGE 1 THEREOF, AS
AMENDED BY AMENDMENT NO. 1, AMENDMENT NO. 2, AMENDMENT NO. 3,
AMENDMENT NO. 4, AND AMENDMENT NO. 5, IS DELETED AND REPLACED WITH
THE FOLLOWING:
Wells Fargo & Company, a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the
issue and sale by the Company of up to $2,500,000,000 (or the
equivalent thereof in one or more foreign currencies or currency
units) aggregate principal amount of its Medium-Term Notes due from
Nine Months to Twelve Years from Date of Issue (the "Notes," which
term shall include the Senior Notes and the Subordinated Notes).
The "Senior Notes" are the Company's Medium-Term Notes to be issued
under an Indenture dated as of September 1, 1984 between the
Company and Chemical Bank as successor trustee (the "Senior
Trustee"), as amended by the First Supplemental Indenture dated as
of April 15, 1986, the Second Supplemental Indenture dated as of
June 30, 1987 and the Third Supplemental Indenture dated as of
January 23, 1991 (collectively, the "Senior Indenture"). The
"Subordinated Notes" are the Company's Subordinated Medium-Term
Notes, Series B, to be issued under an Indenture dated as of
December 10, 1992 (the "Subordinated Indenture") between the
Company and Marine Midland Bank
2.
<PAGE>
(the "Subordinated Trustee"). The Notes will have the maturities,
interest rates, redemption provisions, if any, and other terms as
set forth in one or more supplements to the Prospectus referred to
below. The Senior Indenture and the Subordinated Indenture are
sometimes herein referred to together as the "Indentures" or
individually as an "Indenture," and the Senior Trustee and the
Subordinated Trustee are sometimes herein referred to together as
the "Trustees" or individually as a "Trustee." The Company shall
designate at the time of such issuance whether the Notes to be
issued are Senior Notes or Subordinated Notes. The Finder
Agreement supersedes the agreement dated April 21, 1986.
2. SECTION 1.(A) BEGINNING ON PAGE 2 THEREOF, AS AMENDED BY
AMENDMENT NO. 1, AMENDMENT NO. 2, AMENDMENT NO. 3, AMENDMENT NO. 4,
AND AMENDMENT NO. 5, IS DELETED AND REPLACED WITH THE FOLLOWING:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission")
registration statements on such Form (Registration Nos. 33-51227
and 33-_____), which registration statements, as amended (if
applicable), have become effective, for the registration under the
Act of the Notes. Such registration statements, including the
exhibits thereto, as amended at the date of this Agreement, are
hereinafter called the "Registration Statements." The Registration
Statements, as amended at the date of this Agreement, meet the
requirements set forth in Rule 415(a)(1)(x) under the Act and
comply in all other material respects with said Rule. The Company
proposes to file with the Commission from time to time, pursuant to
Rule 424(b)(3) under the Act, supplements to the prospectus and
prospectus supplement relating to the Notes transmitted for filing
with the Commission pursuant to Rule 424(b) under the Act which
will describe certain terms of the Notes and, subject to Section
3(a), prior to any such filing will advise the Finder of all
further information (financial and other) with respect to the
Company to be set forth therein other than the specific terms of
the Notes offered thereby. Such prospectus and prospectus
supplement in the form transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act on _______ __, 1995, is
herein called the "Prospectus." Any reference herein to the
Registration Statements or Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Act or
under the Securities Exchange Act of 1934 (the "Exchange Act") on
or before the date of this Agreement, or the date of such
Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statements or Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after
the date of this Agreement or such
3.
<PAGE>
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
3. THE FIRST DOLLAR AMOUNT CONTAINED IN SECTION 4(b)(i)(C) ON
PAGE 13 THEREOF, AS AMENDED BY AMENDMENT NO. 1, AMENDMENT NO. 2,
AMENDMENT NO. 3, AMENDMENT NO. 4 AND AMENDMENT NO. 5, IS DELETED
AND REPLACED WITH $2,500,000,000 AND THE PARENTHETICAL PHRASE IN
SUCH SECTION IS DELETED AND REPLACED WITH "(IN ADDITION TO
[$437,250,000] AGGREGATE PRINCIPAL AMOUNT OF NOTES PREVIOUSLY
AUTHORIZED FOR ISSUANCE)."
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the Agents.
Very truly yours,
WELLS FARGO & COMPANY
By: _______________________
Title:
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: __________________________
Title:
By: __________________________
Title:
4.
EXHIBIT 4(l)
WELLS FARGO & COMPANY
FIXED RATE NOTE
REGISTERED REGISTERED
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FDIC OR
ANY OTHER FEDERAL AGENCY.
UNLESS THIS SECURITY IS DESIGNATED BELOW AS "BOOK-ENTRY," THEN
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("THE DEPOSITARY," WHICH TERM INCLUDES ANY SUCCESSOR
DEPOSITARY FOR THE SECURITIES) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR
IN LIEU OF, THIS SECURITY IS REGISTERED IN THE NAME OF CEDE & CO.
OR OTHER SUCH NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY AND ANY PAYMENT MADE HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS SECURITY IS DESIGNATED BELOW AS "BOOK-ENTRY," THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
NOTE NO.: __________________ REGISTERED HOLDER: ________________
CUSIP NO.: ____________________ PRINCIPAL AMOUNT U.S.$: ___________
FORM: / / Book-Entry
/ / Certificated INTEREST RATE: ___% per annum
RANKING: / / Senior
/ / Subordinated
TRADE DATE: _________________ ORIGINAL ISSUANCE DATE: _____
ISSUE PRICE: ________________ STATED MATURITY: ____________
SELLING AGENT'S DISCOUNT
OR COMMISSION: ________% REGULAR RECORD DATES: _______
NET PROCEEDS TO ISSUER: $____________ INTEREST PAYMENT DATES: ______
REDEMPTION:
/ / The Note cannot be redeemed prior to maturity
/ / The Note may be redeemed prior to maturity
Earliest Redemption Date: _____________
Initial Redemption Price: _______%
Annual Redemption Price Reduction: ___%
Sinking Fund Redemption Dates: ________
Sinking Fund Amounts: _______
REPAYMENT:
/ / The Note cannot be repaid prior to maturity
/ / The Note may be repaid prior to maturity at the option of
the holder of the Note
Repayment Date(s): _______
Repayment Price: _________%
DISCOUNT NOTE: / / Yes / / No
Total Amount of OID: _________
Yield to Maturity: ___________
Initial Accrual Period: ______
OTHER PROVISIONS:
<PAGE>
WELLS FARGO & COMPANY, a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company," which term includes any successor corporation
under the Indenture (as defined below)), for value received,
hereby promises to pay to the registered holder named above or
registered assigns, the principal amount specified above (the
"Principal Amount") on the Stated Maturity specified above (the
"Stated Maturity") (unless earlier redeemed or repaid) and to pay
the registered holder hereof as hereinafter provided interest on
said Principal Amount at the per annum Interest Rate specified
above until said principal sum has been paid or made available
for payment. Interest on this Security will accrue from the
Original Issuance Date specified above (the "Original Issuance
Date") or, if later, from the most recent Interest Payment Date
(as defined below) to which interest has been paid or duly
provided for, and will be payable on each Interest Payment Date
and on the Stated Maturity and on any earlier Redemption Dates or
Repayment Dates (as defined below) (but only as to the principal
due on such earlier dates); provided, however, that if the
Original Issuance Date falls between a Regular Record Date (as
defined below) and an Interest Payment Date, the first payment of
interest will be made on the Interest Payment Date following the
next succeeding Regular Record Date. The "Interest Payment Dates"
for any regular payment of interest shall be, unless otherwise
specified above, each April 1, October 1 and the date fixed for
redemption pursuant to the Indenture (as defined below) (the
"Redemption Date"), the Repayment Date (as defined above) and the
Stated Maturity. The "Regular Record Dates" for any regular
payment of interest on any Interest Payment Date shall be, unless
otherwise specified above, the March 15 or September 15, as the
case may be (whether or not a Business Day), next preceding such
Interest Payment Date. The interest so payable on this Security,
and punctually paid of duly provided for, on any Interest Payment
Date shall, as provided in the Indenture, be paid to the person
in whose name this Security (or one or more predecessor
Securities in exchange for or upon transfer of which this
Security was issued between the Regular Record Date for payment
of such interest and the Interest Payment Date), is registered at
the close of business on the Regular Record Date for payment of
such interest; provided, however, that interest payable on this
Security at the Stated Maturity or upon earlier redemption or
repayment, if applicable, shall be paid to the person to whom the
principal is paid. Interest on this Security shall be calculated
on the basis of a 360-day year of twelve 30-day months. Any such
interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the registered holder hereof on
such Regular Record Date and shall be paid to the person in whose
name this Security (or one or more predecessor Securities, in
exchange for or upon transfer of which this Security was issued
between the record date for the payment of such defaulted
interest and the date fixed for the payment of such defaulted
interest) is registered at the close of business on the record
date for the payment of such defaulted interest. The record date
for the payment of defaulted interest shall be the fifth day next
preceding the date fixed by the Company for the payment of the
defaulted interest, established by notice given by first-class
mail to the holder of this Security not less than 10 days
preceding such record date, or if such fifth day is not a
Business Day, the Business Day next preceding such fifth day.
This Security may be presented for the payment
of principal and premium, if any, and interest payable at the
Stated Maturity or at any earlier Redemption Date or Repayment
Date at the offices or agencies of the Company maintained for
such purposes in San Francisco and New York City, in immediately
available funds and in such coin or currency of the United States
as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the
Company, payment of interest on this Security may be made by
United States dollar check mailed on the applicable Interest
Payment Date to the address of the person entitled thereto as
such address shall appear in the Register. The Company may also
appoint additional paying agents. For interest payments on a
Security of U.S. $5,000,000 dollars or more in principal amount,
the holder of such Security may elect at any time to have payment
made in immediately available funds; where the principal of the
Security is less than U.S. $5,000,000 dollars, payment will be
made in immediately available funds only if agreed to on a
case-by-case basis by the Company. Interest payments on
Securities shall not be made in immediately available funds
unless written instructions have been presented to the Trustee
(as defined below) (or any other paying agent duly appointed) at
least 15 days prior to the relevant Regular Record Date.
2.
<PAGE>
Notwithstanding the provisions of the
immediately preceding paragraph, if this Security is designated
on the face hereof as "Book-Entry," then so long as this Security
is registered in the name of The Depositary Trust Company (the
"Depositary," which term includes any successor depositary) or a
nominee of the Depositary, (A) payment of the principal of,
premium, if any, and interest on this Security due at Stated
Maturity or any earlier Redemption Date or Repayment Date will be
made by wire transfer of immediately available funds upon
presentation and surrender of this Security to the Trustee at its
office in San Francisco or to the designated office of any
additional paying agent; provided that this Security is presented
to the Trustee or other such paying agent in time for it to make
such payment in accordance with its normal procedures; and
(B) payments of interest on this Security (other than at Stated
Maturity or at any earlier Redemption Date or Repayment Date),
will be made by wire transfer to such account as has been
appropriately designated to the Trustee or other paying agent by
the person entitled to such payments (and, if such person is the
Depositary or a nominee of the Depositary, such payments of
interest will be made in accordance with the Depositary's
customary practices).
This Security is one of a duly authorized
issuance of Securities of the Company (as defined on the reverse
hereof), which have been issued under and are governed by the
terms of (i) if this Security is designated above as "Senior," an
indenture dated as of September 1, 1984, as amended by the First
Supplemental Indenture dated as of April 15, 1986, the Second
Supplemental Indenture dated as of June 30, 1987, and the Third
Supplemental Indenture dated as of January 23, 1991 between the
Company and Chemical Bank, as successor Trustee, (the
"Medium-Term Notes") or (ii) if this Security is designated above
as "Subordinated," an indenture dated, as of December 10, 1992
between the Company and Marine Midland Bank, as Trustee (the
"Medium-Term Notes, Series B") (the relevant indenture is herein
called the "Indenture" and the relevant Trustee is called the
"Trustee," which term includes any successor trustee under the
Indenture).
If this Security is designated above as "Subordinated,"
then the indebtedness of the Company evidenced by this Security,
including the principal thereof and interest thereon, is, to the
extent and in the manner set forth in the Indenture, subordinate
and junior in right of payment to the Company's obligations to
the holders of Senior Indebtedness of the Company and each holder
of a Security of this series, by acceptance thereof, agrees to
and shall be bound by such provisions of the Indenture and all
other provisions of the Indenture.
If this Security is designated above as "Subordinated,"
then (i) payment of principal may be accelerated only in the case
of certain events of bankruptcy, insolvency or reorganization of
the Company or of Wells Fargo Bank, National Association and
(ii) there is no right of acceleration in the case of a default
in the performance of any covenant, including a default in the
payment of interest or principal.
The provisions of this Security are continued on the
reverse hereof and the provisions there set forth shall for all
purposes have the same effect as though fully set forth at this
place. References herein to "this Security", "hereof", "herein"
and comparable terms shall include an Addendum hereto if an
Addendum is specified under "Other Provisions" above.
Any provision contained herein with respect to the
calculation of the rate of interest applicable to this Security,
its payment dates or any other matter relating hereto may be
modified as specified in an Addendum relating hereto if so
specified above.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee under the Indenture, or
its successor thereunder, by the manual signature of one of its,
or its Authenticating Agent's, authorized signatories, this
Security shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
3.
<PAGE>
IN WITNESS WHEREOF, WELLS FARGO & COMPANY has caused this
instrument to be signed manually or in facsimile, by its Chairman of
the Board or its President or a Vice President and by its Secretary
or an Assistant Secretary and a facsimile of its corporate seal to be
imprinted thereon.
DATED: WELLS FARGO & COMPANY
[Corporate Seal] By __________________
Chairman
By __________________
Secretary
Attest:
___________________
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series
designated herein, referred to in the within-mentioned Indenture.
[if this Security is designated above as "Senior":]
CHEMICAL BANK, or CHEMICAL TRUST COMPANY
as Trustee OF CALIFORNIA,
as Authenticating Agent for the Trustee
By _______________________ By ___________________________
Authorized Officer Authorized Officer
[if this Security is designated above as "Subordinated":]
MARINE MIDLAND BANK, or CHEMICAL BANK, or CHEMICAL TRUST COMPANY
as Trustee as Authenticating Agent OF CALIFORNIA, as
for the Trustee Authenticating Agent
for the Trustee
By:__________________ By:__________________ By:___________________
Authorized Officer Authorized Officer Authorized Officer
4.
<PAGE>
Reverse of Note
WELLS FARGO & COMPANY
MEDIUM-TERM NOTE
If this Security is designated above as
"Senior," it is one of a duly authorized issuance of securities
of the Company designated as its Medium-Term Notes. If this
Security is designated above as "Subordinated," it is one of a
duly authorized issuance of securities of the Company designated
as its Subordinated Medium-Term Notes, Series B (the Medium-Term
Notes or the Subordinated Medium-Term Notes, Series B, as the
case may be, are hereinafter referred to as the "Securities").
The Securities will be issued only in registered form in
denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
If so indicated on the face hereof, this
Security may be redeemed at the option of the Company prior to
its Stated Maturity. This Security may not be redeemed before the
earliest redemption date, if any, stated on the face hereof (the
"Earliest Redemption Date"). If no Earliest Redemption Date is
indicated hereon, this Security is not redeemable at the option
of the Company prior to the Stated Maturity hereof. On and after
the Earliest Redemption Date specified on the face hereof, if
any, this Security may be redeemed at the option of the Company
as a whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security
shall be at least $1,000) at the applicable Redemption Price. The
"Redemption Price" shall initially be the Initial Redemption
Price set forth on the face hereof and shall decline, at each
anniversary of the Earliest Redemption Date, to an amount equal
to the prior Redemption Price less the Annual Redemption Price
Reduction indicated on the face hereof, or if no Initial
Redemption Price is indicated on the face hereof, at 100% of the
principal amount to be redeemed, in each case together with
accrued interest to the Redemption Date. The Company shall redeem
the principal amount of this Security set forth on the face
hereof ("Sinking Fund Amount") on each of the sinking fund
redemption dates, if any, set forth on the face hereof ("Sinking
Fund Redemption Dates") together with accrued interest to the
applicable Sinking Fund Redemption Date. If no Sinking Fund
Amount is set forth on the face hereof, the Company shall not
have any obligation to redeem this Security before its Stated
Maturity. The Company may reduce the Sinking Fund Amount to be
redeemed on any Sinking Fund Redemption Date by subtracting 100%
of the principal amount (excluding premium) of any Security owned
by the Company and surrendered to the Trustee for cancellation or
that the Company has redeemed or repaid other than pursuant to
the second preceding sentence, in each case on or before the
applicable Sinking Fund Redemption Date. The Company may so
credit the same principal amount of the Security only once.
Notice of any redemption pursuant to this paragraph will be given
by first class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the date fixed for redemption as
provided in the Indenture. In the event of redemption of this
Security in part only, a new Security or Securities of this
series, of like tenor and terms and in authorized denominations,
for unredeemed portion hereof will be issued in the name of the
registered holder hereof upon the cancellation hereof. In case of
redemption at the option of the Company of less than all of the
Securities of this series at the time outstanding the Company
may, by written notice to the Trustee, direct that the Securities
of such series to be redeemed shall be selected from among groups
of such Securities having specified tenor or terms, and the
Trustee shall thereafter select the particular Securities to be
redeemed in such manner as the Trustee deems fair, as provided in
the Indenture. As used herein, the term "Redemption Date" means
any Sinking Fund Redemption Date and any date fixed for
redemption of all or any of the Securities at the option of the
Company.
This Security is subject to repayment in whole
or in part in any whole multiple of $1,000 (provided that any
remaining principal amount of this Security shall be at least
$1,000) on the Repayment Dates set forth on the face hereof at
the option of the holder hereof, at a price (the "Repayment
Price") set forth on the face hereof or if no Repayment Price is
so set forth, at 100% of the principal amount, in each case
together
5.
<PAGE>
with interest payable to the date of repayment. To be repaid at
the option of the holder this Security must be received, with the
form at the foot of this Security titled "Option to Elect
Repayment" duly completed, by the Company at any office or agency
of the Company maintained for the payment of principal and
interest, transfer and exchange in the City and County of San
Francisco, State of California, or in the Borough of Manhattan,
the City of New York, State of New York (or at such additional
addresses of which the Company shall notify the holders of the
Securities of this series) not less than 15 nor more than 45 days
prior to the date of repayment. Effective exercise of the
repayment option by the holder of this Security be irrevocable.
In any case where any Repayment Dates set forth on the face
hereof is not a Business Day (notwithstanding any other provision
of the Indenture of the Securities of this series) then payment
of the Repayment Price and interest need not be made on such
date, but may be made on the next succeeding Business Day with
the same force and effect as if made on such date, and, if such
payment is so made, no interest shall accrue for the period from
and after such Repayment Date. If no Repayment Dates are
indicated on the face hereof, this Security is not subject to
repayment at the option of the holder.
Upon surrender of this Security for repayment
in accordance with the provisions set forth above, this Security
(or portion thereof surrendered for repayment) shall, on the
Repayment Date, become due and payable at the Repayment Price,
together with accrued interest to the Repayment Date, and the
Company shall pay such amounts on the Repayment Date.
In the event of repayment of this Security in
part only, a new Security or Securities of this series, of like
tenor and terms and in authorized denominations, for the unrepaid
portion hereof will be issued in the name of the registered
holder hereof upon the cancellation hereof.
(A) If this Security is designated above as
"Senior," in case an Event of Default with respect to the
Securities of this series, as defined in the Senior Indenture, or
(B) if this Security is designated above as "Subordinated," in
case of certain events of bankruptcy, insolvency or
reorganization of the Company or Wells Fargo Bank, National
Association, shall have occurred and be continuing, then in
either such case the principal of all of the Securities of this
series, together with accrued interest, may be declared, and upon
such declaration shall become due and payable, in the manner with
the effect and subject to the conditions provided in the
Indenture. The Indenture provides that in certain events such
declaration and its consequences may be rescinded and annulled by
the holders of a majority in principal amount of the Securities
of the series (such series or all series voting as one class, if
more than one series are so entitled), as were entitled to
declare such Event of Default, then outstanding (determined for
any series of Securities as in the Indenture provided). It is
also provided in the Indenture that the holders of a majority in
principal amount of the Securities of all series as to which a
default has occurred (all series voting as one class) at the time
outstanding (determined for any series of securities as in the
Indenture provided) may, on behalf of the holders of all of the
Securities of such series, waive any past default in respect of
such Securities under the Indenture and its consequences, except
a default in the payment of the principal of or interest on any
of such Securities or in respect of a covenant or provision of
the Indenture which cannot be modified or amended without the
consent of the holder of each Security so affected and except as
otherwise provided therein.
The Indenture contains provisions permitting
the Company and the Trustee, with the consent of the holders of
not less than 66-2/3% in principal amount of the Securities of
all series at the time outstanding (determined for any series of
Securities and evidenced as in the Indenture provided) so
affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of
the holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Securities, or reduce the rate or extend
the time of payment of interest thereon or on any overdue
principal amount, or reduce the principal amount thereof, or
change the provisions pursuant to which the rate of interest on
any Security is determined if such change could reduce the rate
of interest thereon, or reduce the minimum or maximum rate of
interest thereon or reduce any amount payable
6.
<PAGE>
upon redemption or repayment thereof, or make the principal
thereof or interest thereon or any overdue principal amount
payable in any coin or currency other than that therein
prescribed, without the consent of the holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all
Securities then outstanding. The Indenture also contains a
provision permitting the holders of a majority in principal
amount of all of the Securities of all series affected (all
series voting as one class) at the time outstanding (determined
for any series of Securities and evidenced as in the Indenture
provided) to waive compliance with any covenant or condition
contained in the Indenture before the time for such compliance.
No recourse shall be had for the payment of the
principal of (and premium, if any) or the interest on this
Security, or for any liability based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past,
present or future, of the Company, or of any successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issuance hereof,
expressly waived and released.
The transfer of this Security is registrable by
the registered owner hereof in person or by his attorney duly
authorized in writing at the office of the Company or at the
office of any registrar of the Securities or any transfer agent
designated by the Company for such purpose. Subject to the terms
of the Indenture, upon payment of a sum sufficient to reimburse
the Company for any tax or other governmental charge incident to
transfer, and upon surrender of this Security upon any such
registration of transfer, a new Security or Securities of
authorized denomination or denominations, for the same aggregate
principal amount, will be issued to the transferee in exchange
hereof.
Prior to due presentation of this Security for
registration of transfer, the Company, the Trustee, the
Authenticating Agent, if any, and any agent of the Company or the
Trustee may treat the person in whose name this Security shall be
registered upon the Register as the absolute owner of this
Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon) for the purpose of receiving payment of or on account of
the principal hereof (and premium, if any) and, subject to the
provisions on the face hereof, interest due hereon and for all
other purposes, and neither the Company, the Trustee, the
Authenticating Agent, if any, nor any agent of the Company or the
Trustee shall be affected by any notice or knowledge to the
contrary.
As set forth in, and subject to, the provisions
of the Indenture, no holder of any Security of this series will
have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder, unless such holder shall
have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the
holders of not less than 25% in aggregate principal amount of the
outstanding Securities (considered as one class) shall have made
written request, and offered reasonable indemnity, to the Trustee
to institute such proceeding as Trustee, the Trustee shall not
have received from the holders of a majority in aggregate
principal amount of the outstanding Securities a direction
inconsistent with such request and the Trustee shall have failed
to institute such proceeding within 60 days; provided, however,
that such limitations do not apply to a suit instituted by the
registered holder hereof for the enforcement of payment of the
principal of (and premium, if any) or interest on this Security
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay or provide for the payment of the principal of (and
premium, if any) and interest on this Security at the times,
places and rate, and in the coin or currency, herein prescribed.
7.
<PAGE>
If this Security is designated on its face hereof as
"Senior," then this Security will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. If this
Security is designated on the face hereof as "Subordinated," then
the indebtedness of the Company evidenced by this Security is, to
the extent and in the manner set forth in the Indenture,
subordinated and junior in right of payment to its obligations to
holders of Senior Indebtedness of the Company.
Terms used herein and not otherwise defined herein,
which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture. By acceptance of this
Security, the holder hereof agrees to be bound by the provisions
of the Indenture.
This Security shall be deemed to be a contract made
under the laws of the State of California and for all purposes
shall be construed in accordance with the laws of said State.
8.
<PAGE>
-----------------------
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and irrevocably
instructs the Company to repay the within Security on the first
Repayment Date set forth on the face hereof occurring not less
than 15 nor more than 45 days after the date of receipt of the
within Security by the Company at an office or agency of the
Company maintained for the payment of principal and interest,
transfer and exchange in the City and County of San Francisco,
State of California or in the Borough of Manhattan, The City of
New York, State of New York (or at such other addresses of which
the Company shall notify the registered holders of the Securities
of this series).
( ) In whole
( ) In part equal to $___________________________
must be a whole multiple of $1,000; remaining
principal amount must be at least $1,000)
at a price equal to the Repayment Price set forth on the face
hereof, or if no Repayment Price is so set forth, at 100% of the
principal amount, in each case, together with interest accrued to
the date of repayment.
Signature
NOTICE: The signature on this Option
to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration
or enlargement or any change
whatever.
Please print or type name and address:
______________________________________
______________________________________
______________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert Social Security or other
entifying number of assignee:
______________________________________
______________________________________________________________________________
(Name and Address of Assignee, including zip code,
must be printed or typewritten)
9
<PAGE>
______________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocable constituting
and appointing
_____________________Attorney to transfer said Note on the
Security Register of the Company, with full power of substitution
in the premises.
Dated:
_____________________________
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever.
10.
Exhibit 4(m)
WELLS FARGO & COMPANY
FLOATING RATE NOTE
REGISTERED REGISTERED
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FDIC OR
ANY OTHER FEDERAL AGENCY.
UNLESS THIS CERTIFICATE IS DESIGNATED BELOW AS "BOOK-ENTRY," THEN
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("THE DEPOSITARY," WHICH TERM INCLUDES ANY SUCCESSOR
DEPOSITARY FOR THE NOTES) TO THE BANK OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR
IN LIEU OF, THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR
OTHER SUCH NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT MADE HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS DESIGNATED BELOW AS "BOOK-ENTRY," THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
<TABLE>
<S> <C> <C>
NOTE NUMBER: __________ CUSIP NO.: __________ PRINCIPAL AMOUNT: U.S.$__________
TRADE DATE: __________ ORIGINAL ISSUANCE DATE: __________ STATED MATURITY: __________
ISSUE PRICE: __________ INITIAL INTEREST RATE: __________% REGULAR RECORD DATES: __________
SELLING AGENT'S DISCOUNT
OR COMMISSION: __________% INTEREST PAYMENT DATES: __________ REGISTERED HOLDER: __________
NET PROCEEDS TO ISSUER: $__________
</TABLE>
<TABLE>
<CAPTION>
INTEREST RATE BASIS: INDEX MONTHLY: INTEREST PAYMENT PERIOD:
<S> <C> <C>
/ / Commercial Paper Rate / / Daily / / 5 Year / / Monthly
/ / LIBOR Telerate (Unless LIBOR / / 1 Month / / 7 Year / / Quarterly
Reuters is designated below) / / 3 Months / / 10 Year / / Semi-annually
/ / LIBOR Reuters / / 6 Months / / 20 Year / / Annually
/ / Treasury Rate / / 2 Year / / Other
/ / CD Rate / / 3 Year
/ / CMT Rate (Telerate Page 7052-Week SPREAD: +/- ________________ Basis Points
Unless otherwise designated below) and/or SPREAD MULTIPLIER:_______________%
/ / Telerate Page 7052-Month
/ / Telerate Page 7055 MAXIMUM INTEREST RATE: __________%
MAXIMUM INTEREST RATE: __________%
/ / Federal Funds Effective Rate
/ / 11th Dist. Cost of Funds Rate FIRST INTEREST RESET DATE:________
/ / Other (see attached)
</TABLE>
<TABLE>
<CAPTION>
INTEREST RESET FREQUENCY:
<S> <C> <C> <C>
/ / Daily / / Weekly / / Monthly / / Quarterly
/ / Semi-annually during the / / Annually during the
months of ________ and ________ month of __________
</TABLE>
<TABLE>
<CAPTION>
<C>
REDEMPTION: REPAYMENT:
<S>
/ / The Note cannot be redeemed prior to maturity The Note cannot be repaid prior to maturity
/ / The Note may be redeemed prior to maturity The Note may be repaid prior to maturity
Earliest Redemption Date:___________________ at the option of the holder of the Note
Initial Redemption Price____________________%
Annual Redemption Price Reduction:__________% Repayment Date(s):_____________
Sinking Fund Redemption Dates:______________% Repayment Price:_______________%
Sinking Fund Amount:________________________
</TABLE>
<TABLE>
<CAPTION>
DISCOUNT NOTE: / / Yes / / No RANKING: FORM:
<S> <C> <C>
Total Mount of OID: __________
Yield to Maturity: __________ / / Senior / / Book Entry
/ / Subordinated / / Certificated
Initial Accrual Period: __________
OTHER PROVISIONS: __________
</TABLE>
<PAGE>
WELLS FARGO & COMPANY, a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"
which term includes any successor corporation under the Indenture
(as defined below)), for value received, hereby promises to pay
to the registered holder named above or registered assigns, the
principal amount specified above (the "Principal Amount") on the
Stated Maturity specified above (the "Stated Maturity") (unless
earlier redeemed or repaid) and to pay to the registered holder
hereof as hereinafter provided interest on said Principal Amount
at the per annum initial interest rate specified above (the
"Initial Interest Rate") until the first Interest Reset Date (as
defined below) specified above following the date of original
issuance of this Security (the "Original Issuance Date")
specified above and thereafter at a rate determined in accordance
with the provisions on the reverse hereof under the heading
"Determination of Commercial Paper Rate," "Determination of Prime
Rate," "Determination of LIBOR," "Determination of Treasury
Rate," "Determination of Certificate of Deposit Rate,"
"Determination of CMT Rate," "Determination of Federal Funds
Effective Rate," or "Determination of Eleventh District Cost of
Funds Rate" below, depending upon whether the Interest Rate Basis
(the "Interest Rate Basis") specified above is Commercial Paper
Rate, Prime Rate, LIBOR, Treasury Rate, Certificate of Deposit
Rate ("CD Rate"), CMT Rate, Federal Funds Effective Rate, or
Eleventh District Cost of Funds Rate, which rate may be adjusted
by adding or subtracting the Spread and/or by multiplying the
Spread Multiplier (as such terms are defined below) depending on
whether a Spread or Spread Multiplier is designated above, until
the principal hereof is paid or duly made available for payment.
The "Spread," if any, is the number of basis points designated
above, and the "Spread Multiplier," if any, is the percentage
designated above. Interest will accrue from the Original Issuance
Date or from the most recent Interest Payment Date (as defined on
the reverse hereof) to which interest has been paid or duly
provided for. The Company will pay interest monthly, quarterly,
semiannually or annually, as specified above under "Interest
Payment Period," commencing with the first Interest Payment Date
specified above next succeeding the Original Issuance Date,
thereafter on the Interest Payment Dates (as defined below)
specified above and on the Stated Maturity and on any earlier
Redemption Dates or Repayment Dates (but only as to the principal
due on such earlier dates); provided, however, that if the
Original Issuance Date falls between a Regular Record Date and an
Interest Payment Date, the first payment of interest will be made
on the Interest Payment Date following the next succeeding
Regular Record Date. The "Regular Record Date" shall be 15
calendar days prior to each Interest Payment Date, whether or not
such date shall be a Business Day. The rate of interest payable
on this Security shall be reset daily, weekly, monthly,
quarterly, semiannually or annually, as specified above under
"Interest Reset Frequency". The interest so payable on this
Security, and punctually paid or duly provided for, on any
Interest Payment Date shall, as provided in such Indenture, be
paid to the person in whose name this Security (or one or more
predecessor Securities in exchange for or upon transfer of which
this Security was issued between the Regular Record Date for
payment of such interest and the Interest Payment Date), is
registered at the close of business on the Regular Record Date
for payment of such interest; provided, however, that interest
payable on this Security at the Stated Maturity or upon earlier
redemption or repayment, if applicable, shall be paid to the
person to whom the principal is paid. Interest shall be
calculated on the basis of actual days elapsed and a year of
360 days, except that interest for Treasury Rate Securities and
CMT Rate Securities will be calculated on the basis of the actual
number of days in the year. Notwithstanding the foregoing, the
interest rate hereon shall not be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if
any, shown above, and in no event be greater than the maximum
interest rate permitted by applicable law. Any such interest not
so punctually paid or duly provided for shall forthwith cease to
be payable to the registered holder hereof on such Regular Record
Date and shall be paid to the person in whose name this Security
(or one or more predecessor Securities, in exchange for or upon
transfer of which this Security was issued between the record
date for the payment of such defaulted interest and the date
fixed for the payment of such defaulted interest) is registered
at the close of business on the record date for the payment of
such defaulted interest. The record date for the payment of
defaulted interest shall be the fifth day next preceding the date
fixed by the Company for the payment of the defaulted interest,
established by notice given by first-class mail to the holder of
this Security not less than 10 days preceding such record date,
or if such fifth day is not a Business Day (as defined below),
the Business Day next preceding such fifth day. The term
"Business Day" shall mean (a) with respect to any Security, any
day which is not a Saturday or Sunday and which, in the City of
San Francisco or in the City of New York, is neither a legal
holiday nor a day on which banking institutions are authorized by
law or regulation to close, and (b) with respect to LIBOR
Securities only, any such day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market (a
"London Business Day").
2.
<PAGE>
This Security may be presented for the payment of
principal and premium, if any, and interest payable at the Stated
Maturity or at any earlier Redemption Date or Repayment Date at
the offices or agencies of the Company maintained for such
purposes in San Francisco and New York City, in immediately
available funds and in such coin or currency of the United States
as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the
Company payment of interest on this Security may be made by
United States dollar check mailed on the applicable Interest
Payment Date to the address of the person entitled thereto as
such address shall appear in the Register. The Company may also
appoint additional paying agents. For interest payments on a
Security of U.S. $5,000,000 or more in principal amount, the
holder of such Security may elect at any time to have payment
made in immediately available funds; where the principal of the
Security is less than U.S. $5,000,000, payment will be made in
immediately available funds only if agreed to on a case-by-case
basis by the Company. Interest payments on Securities shall not
be made in immediately available funds unless written
instructions have been presented to the Trustee (or any other
paying agent duly appointed) at least 15 days prior to the
relevant Regular Record Date.
Notwithstanding the provisions of the immediately
preceding paragraph, if this Security is designated on the face
hereof as "Book-Entry," then so long as this Security is
registered in the name of The Depository Trust Company (the
"Depositary," which term includes any successor depositary) or a
nominee of the Depositary, (A) payment of the principal of,
premium, if any, and interest on this Security due at Stated
Maturity or any earlier Redemption Date or Repayment Date will be
made by wire transfer of immediately available funds upon
presentation and surrender of this Security to the Trustee or to
the designated office of any additional paying agent; provided
that this Security is presented to the Trustee or other such
paying agent in time for it to make such payment in accordance
with its normal procedures; and (B) payments of interest on this
Security (other than at Stated Maturity or at any earlier
Redemption Date or Repayment Date), will be made by wire transfer
to such account as has been appropriately designated to the
Trustee or other paying agent by the person entitled to such
payments (and, if such person is the Depositary or a nominee of
the Depositary, such payments of interest will be made in
accordance with the Depositary's customary practices).
This Security is one of a duly authorized issuance of
Securities (as defined on the reverse hereof) of the Company
which have been issued under and are governed by the terms of
(i) if this Security is designated above as "Senior," an indenture
dated as of September 1, 1984, as amended by the First
Supplemental Indenture dated as of April 15, 1986, the Second
Supplemental Indenture dated as of June 30, 1987, and the Third
Supplemental Indenture dated as of January 23, 1991 between the
Company and Chemical Bank, as successor Trustee (the "Medium-Term
Notes") or (ii) if this Security is designated above as
"Subordinated," an indenture dated as of December 10, 1992
between the Company and Marine Midland Bank, as Trustee (the
"Medium-Term Notes, Series B") (the relevant indenture is herein
called the "Indenture" and the relevant trustee is hereinafter
called "Trustee," which term includes any successor trustee under
the Indenture).
If this Security is designated above as "Subordinated,"
then the indebtedness of the Company evidenced by this Security,
including the principal thereof and interest thereon, is, to the
extent and in the manner set forth in the Indenture, subordinate
and junior in right of payment to the Company's obligations to
the holders of Senior Indebtedness of the Company and each holder
of a Security of this series, by acceptance thereof, agrees to
and shall be bound by such provisions of the Indenture and all
other provisions of the Indenture.
If this Security is designated above as "Subordinated,"
then (i) payment of principal may be accelerated only in the case
of certain events of bankruptcy, insolvency or reorganization of
the Company or of Wells Fargo Bank, National Association and
ii) there is no right of acceleration in the case of a default
in the performance of any covenant, including a default in the
payment of interest or principal.
The provisions of this Security are continued on the
reverse hereof and the provisions thereof set forth shall for all
purposes have the same effect as though fully set forth at this
place. References herein to "this Security," "hereof," "herein"
and comparable terms shall include an Addendum hereto if an
Addendum is specified under "Other Provisions" above.
3.
<PAGE>
Any provision contained herein with respect to the
calculation of the rate of interest applicable to this Security,
its payment dates or any other matter relating hereto may be
modified as specified in an Addendum relating hereto if so
specified above.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee under the Indenture, or
its successor thereunder, by the manual signature of one of its,
or its Authenticating Agent's, authorized signatories, this
Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, WELLS FARGO & COMPANY has caused this
instrument to be signed manually or in facsimile, by its Chairman
of the Board or its President or a Vice President and by its
Secretary or an Assistant Secretary and a facsimile of its corporate
seal to be imprinted thereof
DATED: WELLS FARGO & COMPANY
[Corporate Seal] By___________________
Chairman
By___________________
Attest: Secretary
_____________________
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated
herein, referred to in the within-mentioned Indenture.
[if this Security is designated above as "Senior":]
CHEMICAL BANK, or CHEMICAL TRUST COMPANY
as Trustee OF CALIFORNIA,
as Authenticating Agent
for the Trustee
By__________________ By__________________
Authorized Officer Authorized Officer
[if this Security is designated above as "Subordinated":]
MARINE MIDLAND BANK, or CHEMICAL BANK, or
as Trustee as Authenticating Agent
for the Trustee
By__________________ By__________________
Authorized Officer Authorized Officer
CHEMICAL TRUST
COMPANY OF CALIFORNIA,
as Authenticating Agent
for the Trustee
By:__________________
Authorized Officer
4.
<PAGE>
Reverse of Note
WELLS FARGO & COMPANY
MEDIUM-TERM NOTE
If this Security is designated above as "Senior," it is
one of a duly authorized issuance of securities of the Company
designated as its Medium-Term Notes. If this Security is
designated above as "Subordinated," it is one of a duly
authorized issuance of securities of the Company designated as
its Subordinated Medium-Term Notes, Series B (the Medium-Term
Notes or the Subordinated Medium-Term Notes, Series B, as the
case may be, are hereinafter referred to as the "Securities").
This Security shall be issuable only in fully registered form in
denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
If so indicated on the face hereof, this Security may be
redeemed at the option of the Company prior to its Stated
Maturity. This Security may not be redeemed before the earliest
redemption date, if any, stated on the face hereof (the "Earliest
Redemption Date"). If no Earliest Redemption Date is indicated on
the face hereof, this Security is not redeemable at the option of
the Company prior to the Stated Maturity hereof. On or after the
Earliest Redemption Date as specified on the face hereof, if any,
this Security may be redeemed at the option of the Company as a
whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security
shall be at least $1,000) at the applicable Redemption Price. The
"Redemption Price" shall initially be the Initial Redemption
Price set forth on the face hereof and shall decline, at each
anniversary of the Earliest Redemption Date, to an amount equal
to the prior Redemption Price less the Annual Redemption Price
Reduction indicated on the face hereof, or if no Initial
Redemption Price is indicated on the face hereof, at 100% of the
Principal Amount to be redeemed, in each case together with
accrued interest to the Redemption Date. This Company shall
redeem the principal amount of this Security set forth on the
face hereof ("Sinking Fund Amount") on each of the sinking fund
redemption dates, if any, set forth on the face hereof ("Sinking
Fund Redemption Dates") together with accrued interest applicable
to the Sinking Fund Redemption Date. If no Sinking Fund Amount is
set forth on the face hereof, the Company shall not have any
obligation to redeem this Security before its Stated Maturity.
The Company may reduce the Sinking Fund Amount to be redeemed on
any Sinking Fund Redemption Date by subtracting 100% of the
principal amount (excluding premium) of any Security owned by the
Company and surrendered to the Trustee for cancellation of which
the Company becomes the beneficial owner and has so notified the
Trustee on or before the applicable Sinking Fund Redemption Date
or that the Company has redeemed or repaid other than pursuant to
the second preceding sentence, in each case on or before the
applicable Sinking Fund Redemption Date. The Company may so
credit the same principal amount of the Security only once.
Notice of any redemption pursuant to this paragraph will be given
by first class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the date fixed for redemption as
provided in the Indenture. In the event of redemption of this
Security in part only, a new Security or Securities of this
series, of like tenor and terms and in authorized denominations,
for the unredeemed portion hereof will be issued in the name of
the registered holder hereof upon the cancellation hereof. In
case of redemption at the option of the Company of less than all
of the Securities of this series at the time outstanding the
Company may, by written notice to the Trustee, direct that
Securities of such series to be redeemed shall be selected from
among groups of such Securities having specified tenor or terms,
and the Trustee shall thereafter select the particular Securities
to be redeemed in such manner as the Trustee deems fair, as
provided in the Indenture. As used herein, the term "Redemption
Date" means any Sinking Fund Redemption Date and any date fixed
for redemption of all or any of the Securities at the option of
the Company.
This Security is subject to repayment in whole or in
part in any whole multiple of $1,000 (provided that any remaining
principal amount of this Security shall be at least $1,000) on
the Repayment Dates set forth on the face hereof at the option of
the holder hereof, at a price (the "Repayment Price") set forth
on the face hereof or if no Repayment Price is so set forth, at
100% of the principal amount, in each case together with interest
payable to the date of repayment. To be repaid at the option of
the holder this Security must be received, with the form at the
foot of this Security titled "Option to Elect Repayment" duly
completed, by the Company at any office or agency of the Company
maintained for the payment of principal and interest, transfer
and exchange
5.
<PAGE>
in the City and County of San Francisco, State of California, or
in the Borough of Manhattan, the City of New York, State of New
York (or at such additional addresses of which the Company shall
notify the holders of the Securities of this series), not less
than 15 nor more than 45 days prior to the date of repayment.
Effective exercise of the repayment option by the holder of this
Security shall be irrevocable. In any case where any Repayment
Date set forth on the face hereof is not a Business Day
(notwithstanding any other provision of the Indenture or the
Securities of this series) then payment of the Repayment Price
and interest need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect
as if made on such date, and, if such payment is so made, no
interest shall accrue for the period from and after such
Repayment Date. If no Repayment Date is indicated hereon, this
Security is not subject to repayment at the option of the holder.
Upon surrender of this Security for repayment
in accordance with the provisions set forth above, this Security
(or portion thereof surrendered for repayment) shall, on the
Repayment Date, become due and payable at the Repayment Price,
together with accrued interest to the Repayment Date, and the
Company shall pay such amounts on the Repayment Date.
In the event of repayment of this Security in
part only, a new Security or Securities of this series, of like
tenor and terms and in authorized denominations, for the unrepaid
portion hereof will be issued in the name of the registered
holder hereof upon the cancellation hereof.
Commencing with the First Interest Reset Date specified
on the face hereof, the rate at which interest on this Security
is payable shall be adjusted daily, weekly, monthly, quarterly,
semi-annually or annually as shown on the face hereof under
"Interest Reset Frequency." Each such adjusted rate shall be
applicable on and after the Interest Reset Date to which it
relates but not including the next succeeding Interest Reset
Date. Subject to applicable provisions of law and except as
specified herein, on each Interest Reset Date, the rate of
interest on this Security shall be the rate determined in
accordance with the provisions of the applicable heading below.
The Interest Reset Dates will be, in the case of
Securities which reset daily, each Business Day, in the case of
Securities (other than Treasury Rate Securities) which reset
weekly, the Wednesday of each week; in the case of Treasury Rate
Securities which reset weekly, the Tuesday of each week (except
as set forth in the last sentence of the next succeeding
paragraph below); in the case of Securities which reset monthly
(other than the Eleventh District Cost of Funds Rate Securities),
the third Wednesday of each month; or, in the case of Eleventh
District Cost of Funds Rate Securities, all of which reset
monthly; the first calendar day of each month in the case of
Securities which reset quarterly, the third Wednesday of March,
June, September and December; in the case of Securities which
reset semi-annually, the third Wednesday of two months of each
year that are six months apart, as specified on the face hereof
under "Interest Rate Frequency"; and in the case of Securities
which reset annually, the third Wednesday of one month of each
year, as specified on the face hereof; provided, however, that
the interest rate in effect from the date of issuance to the
first Interest Reset Date with respect to a Security will be the
Initial Interest Rate indicated on the face thereof. If any
Interest Reset Date for any Security would otherwise be a day
that is not a Business Day for such Security, the Interest Reset
Date for such Security shall be postponed to the next day that is
a Business Day for such Security, except that in the case of a
LIBOR Security, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
The Interest Determination Date pertaining to an
Interest Reset Date for (a) a Commercial Paper Rate Security (the
"Commercial Paper Interest Determination Date"), (b) a Prime Rate
Security (the "Prime Rate Interest Determination Date"), (c) a CD
Rate Security (the "CD Rate Interest Determination Date"), (d) a
CMT Rate Security (the "CMT Rate Interest Determination Date"),
and (e) a Federal Funds Rate Security (the "Federal Funds
Interest Determination Date") will be the second Business Day
preceding the Interest Reset Date with respect to such Security.
The Interest Determination Date pertaining to an Interest Reset
Date for an Eleventh District Cost of Funds Rate Security (the
"Eleventh District Cost of Funds Rate Interest Determination
Date") will be the last working day of the month immediately
preceding such Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index (as defined below under "Determination of Eleventh District
Cost of Funds Rate"). The Interest Determination Date pertaining
6.
<PAGE>
to an Interest Reset Date for a LIBOR Security (the "LIBOR
Interest Determination Date") will be the second London Business
Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a
Treasury Rate Security (the "Treasury Interest Determination
Date") will be the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned.
If, as a result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Treasury Interest
Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction date shall
fall on any Interest Reset Date for a Treasury Rate Security,
then such Interest Reset Date shall instead be the first Business
Day immediately following such auction date.
Unless otherwise indicated above, interest will be
payable, in the case of Securities which reset daily, weekly, or
monthly (except for Eleventh District Cost of Funds Rate
Securities), on the third Wednesday of each month or on the third
Wednesday of March, June, September and December of each year as
specified on the face hereof; in the case of Eleventh District
Cost of Funds Rate Securities, which reset monthly, on the first
Business Day of each month or the first Business Day of March,
June, September and December as specified above; in the case of
Securities which reset quarterly, on the third Wednesday of
March, June, September and December of each year; in the case of
Securities which reset semi-annually, on the third Wednesday of
the two months of each year specified on the face hereof; and in
the case of Securities which reset annually, on the third
Wednesday of the month specified on the face hereof (each an
"Interest Payment Date"), and in each case, at any Redemption
Date or Repayment Date and Stated Maturity. If an Interest
Payment Date with respect to any Security (other than an Interest
Payment Date that falls on a Redemption Date or a Repayment Date
with respect to the principal amount due and payable on such
date, and other than an Interest Payment Date which falls on the
Stated Maturity) would otherwise fall on a day that is not a
Business Day with respect to such Security, the Interest Payment
Date will be postponed to the following day that is a Business
Day with respect to such Security, except that in the case of a
LIBOR Security, if such Business Day falls in the next calendar
month, such Interest Payment Date will be the preceding day that
is a Business Day with respect to such LIBOR Security.
Interest payments shall be for the amount of interest
accrued to, but excluding, the Interest Payment Date. With
respect to this Security, accrued interest from the Original
Issuance Date or from the last date to which interest has been
paid is calculated by multiplying the Principal Amount of this
Security by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor calculated for
each day from the Original Issuance Date, or from the last date
to which interest has been paid, to the date for which accrued
interest is being calculated. The interest factor (expressed as a
decimal rounded upwards if five one- millionths or more of a
percentage point and rounded downwards if less than five
one-millionths of a percentage point, if necessary, to the next
higher or lower, as the case may be, one hundred-thousandth of a
percentage point (e.g., 9.876545% or .09876545 being rounded to
9.87655% or .0987655, respectively)) for each such day is
computed by dividing the interest rate (expressed as a decimal
rounded upwards if five one-millionths or more of a percentage
point and downwards if less than five one-millionths of a
percentage point, if necessary, to the next higher or lower, as
the case may be, one hundred-thousandth of a percentage point)
applicable to such date by 360, in the case of Commercial Paper
Rate Securities, Prime Rate Securities, LIBOR Securities, CD Rate
Securities, Federal Funds Rate Securities or Eleventh District
Cost of Funds Rate Securities, or by the actual number of days in
the year, in the case of CMT Rate Securities and Treasury Rate
Securities. All dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half
cent being rounded upwards).
Notwithstanding the foregoing, if this Security is
designated above as having an Addendum attached, this Security
shall bear interest in accordance with the terms described in
such Addendum.
Upon the request of the holder of any Security, the
calculation agent as specified on the face hereof (the
"Calculation Agent") will provide the interest rate then in
effect, and, if different, the interest rate which will become
effective as a result of a determination made on the most recent
Interest Determination Date with respect to such Security. Unless
otherwise specified on the face hereof, the "Interest Calculation
Date," where applicable, pertaining to any Interest Determination
Date will be the earlier of (a) the tenth calendar day after such
Interest Determination Date, or, if any such day is not a
Business Day, the next succeeding Business Day,
7.
<PAGE>
or (b) the Business Day preceding the applicable Interest Payment
Date, Redemption Date, Repayment Date or Stated Maturity, as the
case may be.
DETERMINATION OF COMMERCIAL PAPER RATE. The interest
rate payable with respect to this Security shall be calculated
with reference to the Commercial Paper Rate and the Spread and/or
Spread Multiplier, if any, specified on the face hereof.
"Commercial Paper Rate" means, with respect to each Interest
Determination Date specified on the face hereof, the Money Market
Yield (calculated as described below) of the rate on such date
for commercial paper having the Index Maturity specified on the
face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication of the Board of
Governors of the Federal Reserve System ("H.15(519)") under the
heading "Commercial Paper." In the event that such rate is not
published prior to 3:00 P.M., New York City time, on the Interest
Calculation Date indicated hereon pertaining to such Interest
Determination Date, as specified above, then the Commercial Paper
Rate shall be the Money Market Yield of the rate on such Interest
Determination Date for commercial paper having the Index Maturity
specified on the face hereof as published by the Federal Reserve
Bank of New York in its daily statistical release "Composite
3:30 P.M. Quotations for U.S. Government Securities" ("Composite
Quotations") under the heading "Commercial Paper." If by
3:00 P.M., New York City time, on such Interest Calculation Date
such rate is not yet published in either H.15(519) or Composite
Quotations, the rate for that Interest Determination Date shall
be calculated by the Calculation Agent and shall be the Money
Market Yield of the arithmetic mean (rounded to the nearest one
hundred-thousand of a percent) of the offered rates, as of
11:00 A.M., New York City time, on that Interest Determination Date,
of three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the
Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA," or the equivalent,
from a nationally recognized rating agency; provided, however,
that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate will be the Commercial Paper Rate then in
effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" means a yield (expressed as a
percentage rounded to the next higher one hundred-thousandth of a
percentage point) calculated in accordance with the following
formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal; and
"M" refers to the actual number of days in the interest period
for which interest is being calculated.
DETERMINATION OF PRIME RATE. The interest rate payable
with respect to this Security shall be calculated with reference
to the Prime Rate and the Spread and/or Spread Multiplier, if
any, specified on the face hereof. "Prime Rate" means, with
respect to each Interest Determination Date specified on the face
hereof, the rate set forth on such date in H.15(519) under the
heading "Bank Prime Loan." In the event that such rate is not
published prior to 9:00 AM, New York City time, on the Interest
Calculation Date pertaining to such Interest Determination Date,
then the Prime Rate will be determined by the Calculation Agent
and will be the arithmetic mean of the rates of interest publicly
announced by each bank that appear on the Reuters Screen NYMF
Page (as defined below) as such bank's prime rate or base lending
rate as in effect for that Prime Rate Interest Determination
Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen NYMF Page for the Prime Rate
Interest Determination Date, the Prime Rate will be determined by
the Calculation Agent and will be the arithmetic mean of the
prime rates quoted on the basis of the actual number of days in
the year divided by a 360-day year as of the close of business on
such Prime Rate Interest Determination Date by three, or two if
only two such rates are quoted, major money center banks in the
City of New York selected by the Calculation Agent (which, if
other than the Company, shall be selected by the Calculation
Agent after consultation with the Company). If fewer than two
such rates appear on the Reuters
8.
<PAGE>
Screen NYMF Page, the Prime Rate will be determined by the
Calculation Agent on the basis of the rates furnished in The City
of New York by three, or two if only two such rates are quoted,
substitute banks or trust companies organized and doing business
under the laws of the United States, or any State thereof, having
total equity capital of at least U.S. $500,000,000 and being
subject to supervision or examination by federal or state
authority, selected by the Calculation Agent (which, if other
than the Company, shall be selected by the Calculation Agent
after consultation with the Company) to provide such rate or
rates; provided, however, that if fewer than two such substitute
banks or trust companies selected as aforesaid are quoting as
mentioned in this sentence, the Prime Rate will remain the Prime
Rate then in effect on such Interest Determination Date. "Reuters
Screen NYMF Page" means the display designated as page "NYMF" on
the Reuters Monitor Money Rates Service (or such other page as
may replace the NYMF page on that service for the purpose of
displaying prime rates or base lending rates of major United
States banks).
DETERMINATION OF LIBOR. The interest rate payable with
respect to this Security shall be calculated with reference to
LIBOR and the Spread and/or Spread Multiplier, if any, specified
on the face hereof. "LIBOR" will be determined by the Calculation
Agent in accordance with the following provisions:
(i) With respect to each LIBOR Interest
Determination Date specified on the face hereof, either,
as specified on the face hereof: (a) the arithmetic mean
of the offered rates for deposits in U.S. dollars for
the period of the Index Maturity specified on the face
hereof, commencing on the second London Business Day
immediately following such LIBOR Interest Determination
Date, which appear on the Reuters Screen LIBO Page as of
11:00 A.M., London time, on the LIBOR Interest
Determination Date, if at least two such offered rates
appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"), or (b) the rate for deposits in U.S. dollars
having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately
following that LIBOR Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 A.M.,
London time, on that LIBOR Interest Determination Date
("LIBOR Telerate"). Unless otherwise indicated on the
face hereof, "Reuters Screen LIBO Page" means the
display designated as Page "LIBO" on the Reuters Monitor
Money Rate Service (or such other page as may replace
the LIBO page on that service for the purpose of
displaying London interbank offered rates of major
banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or
such other page as may replace the 3750 page on that
service or such other service or services as may be
nominated by the British Bankers' Association for the
purpose of displaying London interbank offered rates for
U.S. dollar deposits). If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR
will be determined as if LIBOR Telerate had been
specified. If fewer than two offered rates appear on the
Reuters Screen LIBO Page, or if no rate appears on the
Telerate Page 3750, as applicable, LIBOR in respect of
that LIBOR Interest Determination Date will be
determined as if the parties had specified the rate
described in (ii) below.
(ii) With respect to a LIBOR Interest
Determination Date on which fewer than two offered rates
appear on the Reuters Screen LIBO Page, as described in
(i)(a) above, or on which no rate appears on the
Telerate Page 3750, as specified in (i)(b) above, as
applicable, LIBOR will be determined on the basis of the
rates at which deposits in U.S. dollars having the Index
Maturity designated on the face hereof offered at
approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date by four major banks
("Reference Banks") in the London interbank market
selected by the Calculation Agent (which, if other than
the Company, shall be selected by the Calculation Agent
after consultation with the Company) to prime banks in
the London interbank market commencing on the second
London Business Day immediately following such LIBOR
Interest Determination Date and in a principal amount of
not less than U.S. $1,000,000 that is representative for
a single transaction in such market at such time. The
Calculation Agent will request the principal London
office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations
are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean (rounded
to the nearest one hundred-thousandth of a percentage
point) of such quotations. If fewer than two quotations
are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean (rounded
to the nearest one hundred-thousandth of a percentage
point) of the rates
9.
<PAGE>
quoted at approximately 11:00 A.M., New York City time,
on such LIBOR Interest Determination Date by three major
banks in The City of New York selected by the
Calculation Agent (which, if other than the Company,
shall be selected by the Calculation Agent after
consultation with the Company) for loans in U.S. dollars
to leading European banks having the specified Index
Maturity designated on the face hereof commencing on the
second London Business Day immediately following such
LIBOR Interest Determination Date and in a principal
amount equal to an amount of not less than U.S.
$1,000,000 that is representative for a single
transaction in such market at such time; provided,
however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this
sentence, LIBOR will be LIBOR then in effect on such
LIBOR Interest Determination Date.
DETERMINATION OF TREASURY RATE. The interest rate
payable with respect to this Security shall be calculated with
reference to the Treasury Rate and the Spread and/or Spread
Multiplier, if any, specified on the face hereof. "Treasury Rate"
means, with respect to each Interest Determination Date specified
on the face hereof, the rate for the most recent auction of
direct obligations of the United States ("Treasury bills") having
the Index Maturity specified on the face hereof as published in
H.15(519) under the heading "U.S. Government Securities-Treasury
Bills/Auction Average (Investment)" or, if not so published by
3:00 P.M., New York City time, on the Interest Calculation Date
pertaining to such Interest Determination Date, as specified
above, the auction average rate (expressed as a bond equivalent,
rounded to the nearest one hundred-thousandth of a percentage
point, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) for such auction as otherwise
announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury bills having
the Index Maturity specified on the face hereof are not published
or reported as provided above by 3:00 P.M., New York City time,
on such Interest Calculation Date, or if no such auction is held
in that particular week, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, rounded to the nearest
one hundred-thousandth of a percentage point, on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates
as of approximately 3:30 P.M., New York City time, on such
Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation
Agent (which, if other than the Company, shall be selected by the
Calculation Agent after consultation with the Company), for the
issuance of Treasury bills with a remaining maturity closest to
the specified Index Maturity; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate will be
the Treasury Rate then in effect on such Interest Determination
Date.
DETERMINATION OF CERTIFICATE OF DEPOSIT RATE. The
interest rate payable with respect to this Security shall be
calculated with reference to the CD Rate and the Spread and/or
Spread Multiplier, if any, specified on the face hereof. "CD
Rate" means, with respect to each Interest Determination Date,
the rate on such date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof as
published in H.15(519) under the heading "CDs (Secondary
Market)." In the event that such rate is not so published by
3:00 P.M., New York City time, on the Interest Calculation Date
pertaining to such Interest Determination Date, as specified
above, the CD Rate will be the rate on such Interest
Determination Date for negotiable certificates of deposit having
the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Certificates of Deposit."
If such rate is neither published in H.15(519) nor in Composite
Quotations by 3:00 P.M., New York City time, on such Interest
Calculation Date, the CD Rate for such Interest Determination
Date will be calculated by the Calculation Agent and will be the
arithmetic mean (rounded to the nearest one hundred-thousandth of
a percentage point) of the secondary market offered rates as of
10:00 A.M., New York City time, on such Interest Determination
Date, of three leading nonbank dealers of negotiable U.S. dollar
certificates of deposit in the City of New York selected by the
Calculation Agent (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company) for negotiable certificates of deposit of major United
States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the
Index Maturity indicated hereon in a denomination of U.S.
$5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, the CD Rate will be the CD Rate in effect on
such Interest Determination Date.
10.
<PAGE>
DETERMINATION OF CMT RATE. The interest rate payable
with respect to this Security shall be calculated with reference
to the CMT Rate and the Spread and/or Spread Multiplier, if any,
specified on the face hereof. "CMT Rate" means, with respect to
each Interest Determination Date specified on the face hereof,
the rate displayed on the Designated CMT Telerate Page under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve
Board Release H.15 . . . . Mondays Approximately 3:45 P.M., under
the column for the Designated CMT Maturity Index for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the rate for the week, or the month, as
applicable, ended immediately preceding the week in which the
related CMT Rate Interest Determination Date occurs. If such rate
is no longer displayed on the relevant page, or if not displayed
by 3:00 P.M., New York City time, on the related Interest
Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such Treasury Constant Maturity rate
for the Designated CMT Maturity Index as published in the
relevant H.15(519). If such rate is no longer published, or if
not published by 3:00 P.M., New York City time, on the related
Interest Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity
Index) for the CMT Rate Interest Determination Date with respect
to such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M.,
New York City time, on the related Interest Calculation Date, then
the CMT Rate for the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and be a yield to maturity,
based on the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point) of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York
City time, on the CMT Rate Interest Determination Date reported,
according to their written records, by three leading primary
United States government securities dealers (each, a "Reference
Dealer") in the City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the
Calculation Agent (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company) and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for the most recently
issued direct noncallable fixed rate obligations of the United
States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining
term to maturity of not less than such Designated CMT Maturity
Index minus one year. If the Calculation Agent cannot obtain
three such Treasury Note quotations, the CMT Rate for such CMT
Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the
arithmetic mean (rounded to the nearest one hundred-thousandth of
a percentage point) of the secondary market offer side prices as
of approximately 3:30 P.M., New York City time, on the CMT Rate
Interest Determination Date of three Reference Dealers in the
City of New York (from five such Reference Dealers selected by
the Calculation Agent (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company) and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for Treasury Notes
with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in
an amount of at least $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above,
then the CMT Rate will be based on the arithmetic mean (rounded
to the nearest one hundred-thousandth of a percentage point) of
the offer prices obtained and neither the highest nor lowest of
such quotes will be eliminated; provided, however, that if fewer
than three Reference Dealers selected by the Calculation Agent
are quoting as described herein, the CMT Rate will be the CMT
Rate in effect on such CMT Rate Interest Determination Date. If
two Treasury Notes with an original maturity as described in the
third preceding sentence have remaining terms to maturity equally
close to the Designated CMT Maturity Index, the quotes for the
Treasury Note with the shorter remaining term to maturity will be
used.
"Designated CMT Telerate Page" means the display on the
Dow Jones Telerate Service on the page designated on the face
hereof (or any other page as may replace such page on that
service for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519)), for the purpose of
displaying Treasury
11.
<PAGE>
Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page
shall be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original
period to maturity of the U.S. Treasury securities (either 1, 2,
3, 5, 7, 10, or 30 years) specified on the face hereof under
"Index Maturity" with respect to which the CMT Rate will be
calculated. If no such Index Maturity is specified on the face
hereof, the Designated CMT Maturity Index shall be 2 years.
DETERMINATION OF FEDERAL FUNDS EFFECTIVE RATE. The
interest rate payable with respect to this Security shall be
calculated with reference to the Federal Funds Effective Rate
and the Spread and/or Spread Multiplier, if any, specified on
the face hereof. "Federal Funds Effective Rate" means, with
espect to each Interest Determination Date, the rate on that
date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)." In the event that such
rate is not so published by 3:00 P.M., New York City time,
on the Interest Calculation Date pertaining to such Interest
Determination Date, as specified above, the Federal Funds
Effective Rate will be the rate on such Interest Determination
Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate" If such rate is neither published
in H.15(519) nor in Composite Quotations by 3:00 P.M., New York
City time, on such Interest Calculation Date, the Federal Funds
Effective Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic
mean (rounded to the nearest one hundred-thousandth of a percentage
point) of the rates as of 9:00 A.M., New York City time, on such
Interest Determination Date of the last transaction in overnight
Federal Funds arranged by three leading brokers of
Federal Funds transactions in the City of New York selected by
the Calculation Agent (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company); provided, however, that if the brokers selected as
aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, the Federal Funds Effective Rate will be the
Federal Funds Effective Rate in effect on such Interest
Determination Date.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE.
The interest rate payable with respect to this Security shall be
calculated with reference to the Eleventh District Cost of Funds
Rate and the Spread and/or Spread Multiplier, if any, specified
above. "Eleventh District Cost of Funds Rate" means, with respect
to any Eleventh District Cost of Funds Rate Interest Determination
Date, the rate equal to the monthly weighted average cost of funds
r the calendar month immediately preceding the month in which such
Eleventh District Cost of Funds Rate Interest Determination Date
Page 7058 (as defined below) as of 11:00 A.M., San Francisco time,
on such Eleventh District Cost of Funds Rate Interest Determination
ate. If such rate does not appear on Telerate Page 7058 on any related
Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate for such Eleventh
District Cost of Funds Rate Interest Determination Date shall be
the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of
San Francisco as such cost of funds for the calendar month
immediately preceding the date of such announcement. If the FHLB
of San Francisco fails to announce such rate for the calendar
month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, then the Eleventh District Cost
of Funds Rate determined as of such Eleventh District Cost of
Funds Rate Interest Determination Date shall be the Eleventh
District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as
page "7058" on the Dow Jones Telerate Service (or such other page
as may replace the 7058 page on that service for the purpose of
displaying the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank
District).
The Calculation Agent shall calculate the interest rate
and the amount of interest payable on this Security in accordance
with the foregoing on or before each Interest Calculation Date.
The Calculation Agent will, upon the request of the
registered holder of this Security, provide the interest rate
then in effect, and, if different, the interest rate which will
become effective as a result of a determination made on the most
recent Interest Determination Date with respect to this Security.
12.
<PAGE>
(A) If this Security is designated above as "Senior," in
case an Event of Default with respect to this series, as defined
in the Senior Indenture, or (B) if this Security is designated
above as "Subordinated," in case of certain events of bankruptcy,
insolvency or reorganization of the Company or Wells Fargo Bank,
National Association, shall have occurred and be continuing, then
in either such case the principal of all of the Securities of
this series, together with accrued interest, may be declared, and
upon such declaration shall become due and payable, in the manner
with the effect and subject to the conditions provided in the
Indenture. The Indenture provides that in certain events such
declaration and its consequences may be rescinded and annulled by
the holders of a majority in principal amount of the Securities
of the series (such series or all series voting as one class, if
more than one series are so entitled), as were entitled to
declare such Event of Default, then outstanding (determined for
any series of Securities as in the Indenture provided). It is
also provided in the Indenture that the holders of a majority in
principal amount of all of the Securities as to which a default
has occurred (all series voting as one class) at the time
outstanding (determined for any series of securities as in the
Indenture provided) may, on behalf of the holders of all of the
Securities of such series, waive any past default in respect of
such Securities under the Indenture and its consequences, except
a default in the payment of the principal of or interest on any
of such Securities or in respect of a covenant or provision of
the Indenture which cannot be modified or amended without the
consent of the holder of each Security so affected and except as
otherwise provided therein.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than
66 2/3% in principal amount of the Securities of all senses at
the time outstanding (determined for any series of Securities and
evidenced as in the Indenture provided) so affected (voting as
one class), to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Securities, or reduce the rate or extend the time of payment of
interest thereon or on any overdue principal amount, or reduce
the principal amount thereof, or change the provisions pursuant
to which the rate of interest on any Security is determined if
such change could reduce the rate of interest thereon, or reduce
the minimum or maximum rate of interest thereon or reduce any
amount payable upon redemption or repayment thereof, or make the
principal thereof or interest thereon or any overdue principal
amount payable in any coin or currency other than that therein
prescribed, without the consent of the holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all
Securities then outstanding. The Indenture also contains a
provision permitting the holders of a majority in principal
amount of all of the Securities of all series affected (all
series voting as one class) at the time outstanding (determined
for any series of Securities and evidenced as in the Indenture
provided) to waive compliance with any covenant or condition
contained in the Indenture before the time for such compliance.
No recourse shall be had for the payment of the
principal of (and premium, if any) or the interest on this
Security, or for any liability based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past,
present or future, of the Company, or of any successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issuance hereof,
expressly waived and released.
The transfer of this Security is registrable by the
registered owner hereof in person or by his attorney duly
authorized in writing at the office of the Company or at the
office of any registrar of the Securities or any transfer agent
designated by the Company for such purpose. Subject to the terms
of the Indenture, upon payment of a sum sufficient to reimburse
the Company for any tax or other governmental charge incident to
transfer, and upon surrender of this Security upon any such
registration of transfer, a new Security or Securities of
authorized denomination or denominations, for the same aggregate
principal amount, will be issued to the transferee in exchange
hereof.
13.
<PAGE>
Prior to due presentation of this Security for
registration of transfer, the Company, the Trustee, the
Authenticating Agent, if any, and any agent of the Company or the
Trustee may treat the person in whose name this Security is
registered upon the Register as the absolute owner of this
Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon) for the purpose of receiving payment of or on account of
the principal hereof (and premium, if any) and, subject to the
provisions on the face hereof, interest due hereon and for all
other purposes, and neither the Company, the Trustee, the
Authenticating Agent, if any, nor any agent of the Company or the
Trustee shall be affected by any notice or knowledge to the
contrary.
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Security of this series will have any
right to institute any proceeding with respect to the Indenture
or for any remedy thereunder, unless such holder shall have
previously given to the Trustee written notice of a continuing
default with respect to this series, the holders of not less than
25% in principal amount of the outstanding Securities (considered
as one class) shall have made written request upon, and offered
reasonable indemnity to, the Trustee to institute such proceeding
as Trustee, the Trustee shall not have received from the holders
of a majority in aggregate principal amount of the outstanding
Securities a direction inconsistent with such request and the
Trustee shall have failed to institute such proceeding within
60 days; provided, however, that such limitations do not apply
to a suit instituted by the registered holder hereof for the
enforcement of payment of the principal of (premium, if any) or
interest on this Security on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay or provide for the payment of the principal of (and
premium, if any) and interest on this Security at the times,
places and rate, and in the coin or currency, herein prescribed.
If this Security is designated on the face hereof as
"Senior," then this Security will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. If this
Security is designated on the face hereof as "Subordinated," then
the indebtedness of the Company evidenced by this Security is, to
the extent and in the manner set forth in the Indenture,
subordinated and junior in right of payment to its obligations to
holders of Senior Indebtedness of the Company.
Terms used herein and not otherwise defined herein,
which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture. By acceptance of this
Security, the holder hereof agrees to be bound by the provisions
of the Indenture.
This Security shall be deemed to be a contract made
under the laws of the State of California and for all purposes
shall be construed in accordance with the laws of said State.
------------------------------------
14.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and irrevocably
instructs the Company to repay the within Security on the first
Repayment Date set forth on the face hereof occurring not less
than 15 nor more than 45 days after the date of receipt of the
within Security by the Company at an office or agency of the
Company maintained for the payment of principal and interest,
transfer and exchange in the City and County of San Francisco,
State of California or in the Borough of Manhattan, The City of
New York, State of New York (or at such other addresses of which
the Company shall notify the registered holders of the Securities
of this series).
( ) In whole
( ) In part equal to $______________ (must be a whole multiple
of $1,000; remaining principal amount must be at least
$1,000)
at a price equal to the Repayment Price set forth on the face
hereof, or if no Repayment Price is so set forth, at 100% of the
principal amount, in each case together with interest accrued to
the date of repayment.
Signature Please print or type name and addrress:
______________________________________
______________________________________
______________________ ______________________________________
NOTICE: The signature on this Option to Elect Repayment must
correspond with the name as written upon the face of the
within instrument in every particular without alteration
or enlargement or any change whatever.
Please print or type name and address:
15.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
Please insert Social Security
or other identifying number of
assignee:
______________________________
____________________________________________________________________
(Name and Address of Assignee, including zip code,
must be printed or typewritten)
____________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________ Attorney to transfer said Note on the Security
Register of the Company, with full power of substitution in the premises.
Dated:
________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever.
16.
Exhibit 5(a)
Opinion of Brobeck, Phleger & Harrison
with respect to the validity of the Offered Securities
June 22, 1995
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Re: Wells Fargo & Company Registration Statement
on Form S-3 filed with the Securities and
Exchange Commission on June 22, 1995
Ladies and Gentlemen:
In connection with the registration by you
pursuant to the above referenced Registration Statement under the
Securities Act of 1933, as amended, of debt securities, preferred
stock, common stock and capital securities (together the "Offered
Securities") with an aggregate public offering price of
$2,062,750,000, we advise you that, in our opinion, when the
Offered Securities have been issued and sold as contemplated by
the above Registration Statement and upon the receipt of the
requisite consideration therefor, the Offered Securities will be
valid and legally binding obligations of Wells Fargo & Company
and, if applicable, fully paid and nonassessable.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference
to this firm under the caption of "Legal Opinions" therein.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON
BROBECK, PHLEGER & HARRISON
<TABLE>
<CAPTION>
EXHIBIT 12(a)
WELLS FARGO & COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
- ------------------------------------------------------------------------------------------------------------------------------------
Quarter
Ended
March 31,
1995 Year Ended December 31,
-------------------------------------------------------
(in millions) 1994 1993 1992 1991 1990
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earnings, including interest on
deposits<F1>:
Income before income tax
expense $ 370 $ 1,454 $ 1,038 $ 500 $ 54 $ 1,196
Fixed charges 377 1,214 1,157 1,505 2,504 2,784
--- ----- ----- ----- ----- -----
$ 747 $ 2,668 $ 2,195 $ 2,005 $ 2,558 $ 3,980
=== ===== ===== ===== ===== =====
Preferred dividend requirement $ 10 $ 43 $ 50 $ 48 $ 19 $ 27
Ratio of income before income tax
expense to net income 1.59 1.73 1.70 1.77 2.57 1.68
---- ---- ---- ---- ---- ----
Preferred dividends<F2> $ 16 $ 74 $ 85 $ 85 $ 49 $ 45
-- -- -- -- -- --
Fixed charges<F1>:
Interest expense 360 1,155 1,104 1,454 2,452 2,737
Estimated interest component of
net rental expense 17 59 53 51 52 47
-- -- -- -- -- --
377 1,214 1,157 1,505 2,504 2,784
--- ----- ----- ----- ----- -----
Fixed charges and preferred
dividends $ 393 $ 1,288 $ 1,242 $ 1,590 $ 2,553 $ 2,829
--- ===== ===== ===== ===== =====
Ratio of earnings to fixed charges
and preferred dividends<F3> 1.90 2.07 1.77 1.26 1.00 1.41
==== ==== ==== ==== ==== ====
Earnings, excluding interest on
deposits:
Income before income tax
expense $ 370 $ 1,454 $ 1,038 $ 500 $ 54 $ 1,196
Fixed charges 135 360 294 320 539 839
--- --- --- --- --- ---
$ 505 $ 1,814 $ 1,332 $ 820 $ 593 $ 2,035
=== ===== ===== === === =====
Preferred dividends<F2> $ 16 $ 74 $ 85 $ 85 $ 49 $ 45
-- -- -- -- -- --
Fixed charges:
Interest expense 360 1,155 1,104 1,454 2,452 2,737
Less interest on deposits (242) (854) (863) (1,185) (1,965) (1,945)
Estimated interest component of
net rental expense 17 59 53 51 52 47
-- -- -- -- -- --
135 360 294 320 539 839
--- --- --- --- --- ---
Fixed charges and preferred
dividends $ 151 $ 434 $ 379 405 $ 588 $ 884
=== === === === === ===
Ratio of earnings to fixed charges 3.34 4.18 3.51 2.02 1.01 2.30
and preferred dividends ==== ==== ==== ==== ==== ====
- ---------------------------
<FN>
<F1> As defined in Item 503(d) of Regulation S-K.
<F2> The preferred dividends were increased to amounts
representing the pretax earnings that would be required to
cover such dividend requirements.
<F3> These computations are included herein in compliance with
Securities and Exchange Commission regulations. However,
management believes that fixed charge ratios are not
meaningful measures for the business of the Company because
of two factors. First, even if there were no change in net
income, the ratios would decline with an increase in the
proportion of income which is tax-exempt or, conversely,
they would increase with a decrease in the proportion of
income which is tax-exempt. Second, even if there were no
change in net income, the ratios would decline if interest
income and interest expense increase by the same amount due
to an increase in the level of interest rates or,
conversely, they would increase if interest income and
interest expense decrease by the same amount due to a
decrease in the level of interest rates.
</FN>
</TABLE>
The Board of Directors
Wells Fargo & Company:
We consent to the use of our report incorporated herein by reference and
to the reference of our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
San Francisco, CA
June 22, 1995
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
WELLS FARGO & COMPANY
(Exact name of obligor as specified in its charter)
California 13-2553920
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
444 Market Street
San Francisco, California 94163
(Address of principal executive offices) (Zip Code)
-------------------------------------------
Senior Debt Securities
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement
of Eligibility.
1. A copy of the Articles of Association of the Trustee as
now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31,
1977, December 31, 1980, September 9, 1982, February 28, 1985
and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1
and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 33-84460, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Chemical Bank, a corporation organized and
existing under the laws of the State of New York, has duly
caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City
of New York and State of New York, on the 20th day of JUNE,
1995.
CHEMICAL BANK
By T. C. MONAHAN
________________________
T. C. Monahan
Assistant Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1995, in
accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the
Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 5,797
Interest-bearing balances ......................... 5,523
Securities: .........................................
Held to maturity securities........................... 6,195
Available for sale securities......................... 17,785
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 2,493
Securities purchased under agreements to resell ... 50
Loans and lease financing receivables:
Loans and leases, net of unearned income .......... $68,937
Less: Allowance for loan and lease losses.......... 1,898
Less: Allocated transfer risk reserve ............. 113
_______
Loans and leases, net of unearned income,
allowance, and reserve ............................ 66,926
Trading Assets ....................................... 37,294
Premises and fixed assets (including capitalized
leases)............................................ 1,402
Other real estate owned .............................. 99
Investments in unconsolidated subsidiaries and
associated companies............................... 148
Customer's liability to this bank on acceptances
outstanding ....................................... 1,051
Intangible assets .................................... 512
Other assets ......................................... 6,759
________
TOTAL ASSETS ......................................... $149,034
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $44,882
Noninterest-bearing ................................ $14,690
Interest-bearing ................................... 30,192
_______
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 32,537
Noninterest-bearing ................................ $ 146
Interest-bearing ................................... 32,391
_______
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement subsidiaries,
and in IBF's Federal funds purchased ............... 10,587
Securities sold under agreements to repurchase ..... 3,083
Demand notes issued to the U.S. Treasury ............. 464
Trading liabilities .................................. 31,358
Other Borrowed money:
With original maturity of one year or less ......... 7,527
With original maturity of more than one year ....... 914
Mortgage indebtedness and obligations under
capitalized leases ................................. 20
Bank's liability on acceptances executed and
outstanding ........................................ 1,054
Subordinated notes and debentures ..................... 3,410
Other liabilities ..................................... 5,986
TOTAL LIABILITIES ..................................... 141,822
_______
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,501
Undivided profits and capital reserves ................ 2,558
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (476)
Cumulative foreign currency translation adjustments ... 9
TOTAL EQUITY CAPITAL .................................. 7,212
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $149,034
=========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
WILLIAM B. HARRISON )
- 5 -
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
WELLS FARGO & COMPANY
(Exact name of obligor as specified in its charter)
Delaware 13-2553920
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000 (Zip Code)
(Address of principal executive offices)
FIRST MORTGAGE BONDS
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General Information.
___________________
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
_________________________
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None
<PAGE>
Item 16. List of Exhibits.
________________
Exhibit
_______
T1A(i) * - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) * - Certificate of the State of New York
Banking Department dated December 31,
1993 as to the authority of Marine
Midland Bank to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of Marine Midland
Bank as adopted on January 20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland Bank
required by Section 321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of condition
of the trustee (March 31, 1995),
published pursuant to law or the
requirement of its supervisory or
examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
* Exhibits previously filed with the Securities and Exchange Commission with
Registration No. 33-53693 and incorporated herein by reference thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, Marine Midland Bank, a banking corporation and trust
company organized under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York on the 20th day of June,
1995.
MARINE MIDLAND BANK
By: FRANK J. GODINO
________________
Frank J. Godino
Corporate Trust Officer
<PAGE>
Exhibit T1A(vii)
This form is for use by State Banks only. It should
be used for publication purposes only, and should
not be returned to the FDIC.
- ---------------------- -- -----------
- ---------------------- -- -----------
-- -----------
Federal Reserve Bank
Administrator of State Banks
- ---------------------- -- -----------
- ---------------------- -- -----------
-- -----------
REPORT OF CONDITION
Consolidated Report of Condition of Marine Midland Bank
of Buffalo, New York and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve Sytem, at the close of business
on March 31, 1995, published in accordance with a call made by
the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
ASSETS
Thousands of dollars
Cash and balances due from
depository institutions:
Noninterest-bearing balances
currency and coin................................... $ 974,096
Interest-bearing balances .......................... 897,640
Held-to-maturity securities............................ 2,095,379
Available-for-sale securities.......................... 43,753
Federal Funds sold and securities purchased under
agreements to resell in domestic offices
of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold.................................. 782,000
Securities purchased under agreements to resell..... 317,383
-----------
Loans and lease financing receivables:
Loans and leases net of unearned income............. 12,647,803
LESS: Allowance for loan and lease losses........... 540,156
LESS: Allocated transfer risk reserve............... 0
-----------
Loans and lease, net of unearned income, allowance,
and reserve......................................... 12,107,647
Trading assets......................................... 399,701
Premises and fixed assets (including capitalized
leases)................................................ 182,043
Other real estate owned................................ 21,078
Investments in unconsolidated subsidiaries and
associated companies................................... 0
Customers' liability to this bank on acceptances
outstanding............................................ 20,189
Intangible assets...................................... 61,282
Other assets........................................... 656,014
Total assets........................................... 18,558,205
-----------
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................. 12,873,835
-----------
Noninterest-bearing................................. 2,935,310
Interest-bearing.................................... 9,938,525
-----------
In foreign offices, Edge, and Agreement subsidiaries,
and IBFs............................................... 2,509,707
---------
Noninterest-bearing................................. 0
Interest-bearing.................................... 2,509,707
-----------
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased............................. 325,438
securities sold under agreements to repurchase...... 412,770
Demand notes issued to the U.S. Treasury............... 94,586
Trading Liabilities.................................... 80,731
Other borrowed money:
With original maturity of one year or less.......... 43,408
With original maturity of more than one year........ 0
Mortgage indebtedness and obligations under
capitalized leases..................................... 38,288
Bank's liability on acceptances executed and
outstanding............................................ 20,189
Subordinated notes and debentures...................... 225,000
Other liabilities...................................... 413,450
Total liabilities...................................... 17,037,402
Limited-life preferred stock and related surplus....... 0
------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.......... 0
Common Stock........................................... 185,000
Surplus................................................ 1,758,098
Undivided profits and capital reserves................. (422,295)
Net unrealized holding gains (losses) on
available-for-sale securities.......................... 0
Cumulative foreign currency translation adjustments.... 0
Total equity capital................................... 1,520,803
Total liabilities, limited-life preferred stock, and
equity capital......................................... 18,558,205
------------
I, Gerald A. Ronning, Exec. Vice President & Controller (Name and title of
officer authorized to sign report) of the above-named bank hereby declare
that this Report of Condition has been prepared in conformance with
the instructions issued by the Board of Governors of the Federal
Reserve System and is true to the best of my knowledge and belief.
/s/ Harold A. Ronning
________________________
Signature of officer
authorized to sign report
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us
and to the best of our knowledge and belief has been preapared in
conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
/s/ James H. Cleave
________________________
James H. Cleave
Director
/s/ B. J. Kennedy
________________________
B. J. Kennedy
Director
/s/ Henry J. Nowak
________________________
Henry J. Nowak
Director
