AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 2, 1995
Registration No. 33-60573
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
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)
------------------------------------
Copies to:
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, New York, New York 10017
California 94105 California 94104
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>
CALCULATION OF REGISTRATION FEE
<CAPTION>
================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SECURITY OFFERING PRICE FEE(2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Notes.......................................
Preferred Stock (4).........................
Depositary Shares (5)(6).................... $2,062,750,000 100%(3) $2,062,750,000 $711,293
Common Stock (6)(7).........................
<FN>
(1) 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.
(2) $272,250,000 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 $93,880.
(3) 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.
(4) 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.
(5) 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.
(6) No additional consideration will be received for the
Depositary Shares or Common Stock and therefore no
registration fee is required pursuant to Rule 457(j).
(7) 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.
</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.
- --------------------------------------------------------------------
- --------------------------------------------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement constitutes a
combined Prospectus relating also to $272,250,000 maximum
aggregate offering price of securities, unsold as of August 2,
1995, registered pursuant to Registration Statement No. 33-51227
previously filed by the Company on Form S-3.
1.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED
PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION
OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, dated August 2, 1995
$2,335,000,000
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
$2,335,000,000 (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 or Common Stock of the
Company. The Preferred Stock may be convertible or exchangeable
into Notes or Common Stock of the Company.
The Offered Securities may be offered and sold
directly by the Company 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 or agents. 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 __________, 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, June 22 and July 18, 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.
<PAGE>
$3.9 billion. 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>
- ------------------------------------------------------------------------------------------------------------------------------
Year Ended December 31,
---------------------------------------------------------------------
1994 1993 1992 1991 1990
---------------------------------------------------------------------
<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(1).................................. 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
<FN>
- --------
(1) Net interest margin is defined as net interest income on a taxable-equivalent basis
divided by average total earning assets.
</FN>
</TABLE>
5.
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
Year Ended December 31,
---------------------------------------------------------------------
1994 1993 1992 1991 1990
---------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
(in millions)
Consolidated Period-End Capital Ratios:(2)
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:(3)(5)
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: (3) (4) (5)
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>
- --------
(2) 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.
(3) 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.
(4) The preferred stock dividends are increased to amounts
representing the pretax earnings required to cover such
dividends.
(5) 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 heretofore or hereafter 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 heretofore or
hereafter issued under the Subordinated Indenture, and the term
"Notes" means the Notes offered hereby and, unless the context
otherwise requires, any other debt securities hereto or hereafter
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 and the forms of the notes 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
7.
<PAGE>
considerations applicable to such perpetual or discounted Notes
will be described in the Prospectus Supplement relating thereto.
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 was
$1.4 billion of Senior Indebtedness of the Company and $1.5
billion of obligations
8.
<PAGE>
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 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
9.
<PAGE>
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 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 or Preferred
Stock 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 or Preferred Stock to be received by the holders of
Notes would be calculated according to the market price of Common
Stock or Preferred Stock as of a time stated in the Prospectus
Supplement.
LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OR CONVERTIBLE
SECURITIES 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
10.
<PAGE>
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 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 such 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
11.
<PAGE>
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 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).
12.
<PAGE>
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).
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
13.
<PAGE>
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 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
14.
<PAGE>
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.
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 non-cumulative 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
15.
<PAGE>
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.
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.
16.
<PAGE>
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 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 or
Common Stock 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
17.
<PAGE>
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 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).
18.
<PAGE>
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 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,
19.
<PAGE>
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 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.
20.
<PAGE>
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.
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
21.
<PAGE>
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.
PLAN OF DISTRIBUTION
The Company 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 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.
22.
<PAGE>
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.
23.
<PAGE>
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.
II-1.
<PAGE>
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.
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.
* 25(a) - Statement of Eligibility of Chemical Bank.
* 25(b) - Statement of Eligibility of Marine Midland Bank.
- ------------------------------
*Previously Filed.
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 2nd day of August, 1995.
WELLS FARGO & COMPANY
By: /s/ Alan J. Pabst
_____________________________________
Alan J. Pabst
(Senior Vice President and Treasurer)
Pursuant to the requirements of the Securities
Act of 1933, this Amendment No. 1 to Registration Statement has
been signed below by the following persons in the capacities and
on the date indicated:
SIGNATURE TITLE DATE
* Paul Hazen Chairman and Chief Executive Officer
- ------------
Paul Hazen (Principal Executive Officer) August 2, 1995
* William F. Zuendt President and Director August 2, 1995
- -------------------
William F. Zuendt
* Rodney L. Jacobs Vice Chairman and Chief Financial Officer
- ------------------
Rodney L. Jacobs (Principal Financial Officer) August 2, 1995
* Frank A. Moeslein Executive Vice President and Controller
- -------------------
Frank A. Moeslein (Principal Accounting Officer) August 2, 1995
* H. Jessee Arnelle Director August 2, 1995
- -------------------
H. Jessee Arnelle
* William R. Breuner Director August 2, 1995
- -------------------
William R. Breuner
* William S. Davila Director August 2, 1995
- -------------------
William S. Davila
* Rayburn S. Dezember Director August 2, 1995
- -------------------
Rayburn S. Dezember
* Robert K. Jaedicke Director August 2, 1995
- -------------------
Robert K. Jaedicke
II-5.
<PAGE>
* Ellen M. Newman Director August 2, 1995
- -------------------
Ellen M. Newman
* Philip J. Quigley Director August 2, 1995
- -------------------
Philip J. Quigley
* Carl E. Reichardt Director August 2, 1995
- -------------------
Carl E. Reichardt
* Donald B. Rice Director August 2, 1995
- -------------------
Donald B. Rice
* Susan G. Swenson Director August 2, 1995
- -------------------
Susan G. Swenson
* Chang-Lin Tien Director August 2, 1995
- -------------------
Chang-Lin Tien
* John A. Young Director August 2, 1995
- ---------------
John A. Young
*BY: /S/ ALAN J. PABST
____________________________________
(ALAN J. PABST, ATTORNEY-IN-FACT
SENIOR VICE PRESIDENT AND TREASURER)
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.
* 25(a) - Statement of Eligibility of Chemical Bank.
* 25(b) - Statement of Eligibility of Marine Midland Bank.
______________________________
* Previously filed.
II-9.
EXHIBIT 1(d)
WELLS FARGO & COMPANY
$2,500,000,000
MEDIUM-TERM NOTES
AND
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
DUE FROM 9 MONTHS TO 12 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
August __, 1995
Merrill Lynch & Co. CS First Boston Corporation
Merrill Lynch, Pierce, Park Avenue Plaza
Fenner & Smith Incorporated New York, N.Y. 10055
World Financial Center
North Tower, 10th Floor
New York, N.Y. 10281-1310
Lehman Brothers
Goldman, Sachs & Co. Lehman Brothers Inc
85 Broad Street 3 World Financial Center, 12th Floor
New York, N.Y. 10004 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 9 Months to 12 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
<PAGE>
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.
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 33-60573), 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 dated August __ 1995
and prospectus supplement dated August __, 1995 relating to the
Notes in the form transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act on August __, 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
2
<PAGE>
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 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 (if
applicable), 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.
3
<PAGE>
(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
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,
if requested by such Agent, 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
5
<PAGE>
the Agents by the Company. Such Terms Agreement 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.
(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 transmitted 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, 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
6
<PAGE>
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 Notes
pursuant to this Agreement and will arrange for the determination
of the legality of the Notes for purchase by institutional
investors.
7
<PAGE>
(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 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
8
<PAGE>
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 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).
9
<PAGE>
(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
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
10
<PAGE>
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 the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium, liquidation,
conservatorship, readjustment of debt, fraudulent transfer and
other similar laws affecting the rights of creditors generally,
and the discretion of any court of competent jurisdiction in
awarding equitable remedies, including, without limitation,
specific performance or injunctive relief, and the effect of
general principles of equity embodied in California statutes and
common law, and has been duly qualified under the Trust Indenture
Act of 1939, as amended.
(C) Upon
determination by the Pricing Committee of the Company or by a
duly authorized officer of the Company of the precise terms of
the issuance and sale, up to an additional $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 the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium, liquidation,
conservatorship, readjustment of debt, fraudulent transfer and
other similar laws affecting the rights of creditors generally,
and the discretion of any court of competent jurisdiction in
awarding equitable remedies, including, without limitation,
specific performance or injunctive relief, and the effect of
general principles of equity embodied in California statutes and
common law, and will be entitled to the benefits of the Senior
Indenture or Subordinated Indenture, as the case may be. Such
counsel may state that the aggregate principal amount of the
Notes which may be authenticated and delivered under the
Indentures shall be reduced (but not below the amount of any
Notes then outstanding) dollar for dollar for any other series of
notes or preferred stock issued after the date of such opinion
under the Registration Statements.
11
<PAGE>
(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 with respect
to any Registration Statement.
(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 Indentures or the issuance and sale of the
Notes, other than the filing with and order of the Commission in
connection with the registration of the Notes under the Act, the
qualification of the Indentures 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.
(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 under the caption
"Federal Tax Considerations" in the Prospectus were correct as of
the date thereof, 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 schedules and other
financial information included therein as to which such counsel
need not express any belief) and incorporated by reference in the
Prospectus complied as to form when so filed with the Commission
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 schedules 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 schedules 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 schedules and other financial information included
therein as to which such counsel need not express any belief)
12
<PAGE>
any of the Registration Statements 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 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,
as amended, 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 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 on 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.
13
<PAGE>
(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 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 contained in this Agreement 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 or any post-effective
amendment thereto 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 or the Prospectus,
as amended or supplemented and including all documents
incorporated by reference therein.
14
<PAGE>
(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.
(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
15
<PAGE>
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 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) in
connection with representing the indemnified parties under
paragraph (a) or (b), as the case may be, of this Section 5 who
are parties to such action, 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 or (y) in the case of paragraph (b)
of this Section 5, by the Company), (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 all the Notes 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
16
<PAGE>
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).
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
17
<PAGE>
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: MTN 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
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,
32nd 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 9 MONTHS TO 12 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
[Name of Agent] [Date]
[Address of Agent]
Attention: _____________________
Re: Distribution Agreement dated August __, 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 ( )
Form: Certificated ( ) Book-Entry ( )
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Index Maturity:
Initial Interest Rate:
Spread, if any:
Spread Multiplier, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
First Interest Reset Date:
Interest Reset Frequency (specify
months if annual or semi-annual):
Interest Payment Period:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Calculation Agent:
A-1
<PAGE>
If Redeemable:
Earliest Redemption Date:
Initial Redemption Price: ___%
Annual Redemption Price Reduction: ___%
Sinking Fund Redemption Dates:
Sinking Fund Amounts: ___%
If Repayable:
Repayment Date(s):
Repayment Price:
Original Issuance Date:
Stated Maturity:
Public Offering Price: ___%
Purchase Price: ___%
Settlement Date and Time:
Place of Settlement:
Currency of Denomination (if other than U.S. dollars):
Denominations (if currency is other than U.S. dollars):
Currency of Payment (if other than U.S. dollars):
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
<PAGE>
WELLS FARGO & COMPANY
ADMINISTRATIVE PROCEDURES
Explained below are the administrative
procedures and specific terms of the offering of Senior Notes or
Subordinated Notes (as such terms and other capitalized terms
used in these Administrative Procedures and not defined herein
are defined in the Distribution Agreement referred to below or,
if not defined in the Distribution Agreement, as defined in the
Notes), on a continuous basis by Wells Fargo & Company, a
Delaware corporation (the "Company"), pursuant to the
Distribution Agreement, dated _________, 1995 (the "Distribution
Agreement") between the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, CS First Boston
Corporation, Goldman, Sachs & Co., Lehman Brothers Inc.
(including its affiliate Lehman Government Securities Inc.),
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
(individually, an "Agent" and, collectively, the "Agents").
Notes will bear interest at a fixed rate (the "Fixed
Rate Notes"), which may be zero in the case of certain original
issue discount notes (the "OID Notes"), or at floating rates (the
"Floating Rate Notes"). The Notes will be issued in U.S. dollars
or other currencies, including composite currencies such as the
European Currency Unit (the "Specified Currency"). Each Note will
be represented by either a Global Security (as defined below)
delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained
by DTC (a "Book Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a
"Certificated Note"). Except in limited circumstances, an owner
of a Book-Entry Note will not be entitled to receive a
Certificated Note. 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.
Book-Entry Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof as
they may subsequently be amended as the result of changes in
DTC'S operating procedures, and Certificated Notes will be issued
in accordance with the administrative procedures set forth in
Part II hereof. Unless otherwise defined herein, terms defined in
the Indenture or the Notes shall be used herein as therein
defined.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the
Book-Entry Notes for eligibility in the book-entry system
maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representation (the "Letter of Representation") from the Company
and the Trustee to DTC, and a Medium-Term Note Certificate
Agreement between the Trustee and DTC, as amended (the
"Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance:
On any date of settlement (as defined under "Settlement" below)
for one or more Book-Entry Notes, the Company will issue a single
global security in fully registered form without coupons (a
"Global Security") representing up to U.S. $200,000,000 (or the
equivalent thereof in other currencies or composite currencies)
aggregate principal amount of all such Notes that have the same
Stated Maturity, redemption or repayment provisions, Interest
Payment Dates, Original Issuance Date, and other terms
(collectively, the "Terms"). Each Global Security will be dated
and issued as of the date of its authentication by the Trustee.
Each Global Security will bear interest from the Original
Issuance Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for. Any Global
Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost or
stolen Global Security, will bear interest from the most recent
Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security or Securities (or
if no such payment or provision has been made, the Original
Issuance Date of the predecessor Global Security), regardless of
the date of authentication of such subsequently issued Global
Security. No Global Security will represent any Certificated
Note. Notes issued in book-entry form in excess of $200,000,000
(or the equivalent thereof in other currencies or composite
currencies) aggregate
2
<PAGE>
principal amount and otherwise required to
be represented by the same Global Note will instead be
represented by two or more Global Notes which shall all be
assigned the same CUSIP number.
Owners of beneficial interests in Global Notes will be entitled
to physical delivery of Certificated Notes equal in principal
amount to their respective beneficial interest only upon certain
limited circumstances described in the Prospectus.
Identification Numbers:
The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau") for
the reservation of a series of CUSIP numbers (including tranche
numbers) for each of the Notes, each of which series consists of
approximately 900 CUSIP numbers and relates to Global Securities
representing the Book-Entry Notes. The Company has obtained from
the CUSIP Service Bureau a written list of each series of
reserved CUSIP numbers and has delivered to the Trustee and DTC
the written list of 900 CUSIP numbers of each such series. The
Trustee will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP numbers that
the Trustee has assigned to Global Securities. At any time when
fewer than 100 of the reserved CUSIP numbers of either series
remain unassigned to Global Securities, the Trustee shall so
advise the Company and, if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration:
Unless otherwise specified by DTC, each Global Security will be
registered in the name of Cede & Co., as nominee for DTC, on the
Security register maintained under the Indenture. The beneficial
3
<PAGE>
owner of a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or more
participants in DTC with respect to such Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to
such beneficial owner in such Note in the accounts of such
Participants. The ownership interest of such beneficial owner in
such Note will be recorded through the records of such
Participants or through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers:
Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such Note.
Exchanges:
The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the
CUSIP numbers of two or more Outstanding Global Securities that
represent Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date, occurring
at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and (iii) a
new CUSIP number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written reorganization
notice to the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau a written notice setting forth such
4
<PAGE>
exchange date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Securities for a
single Global Security bearing the new CUSIP number, and the
CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be cancelled and
not immediately reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed U.S. $200,000,000 (or
the equivalent thereof in other currencies or composite
currencies) in aggregate principal amount, one Global Security
will be authenticated and issued to represent each U.S.
$200,000,000 (or the equivalent thereof in other currencies or
composite currencies) in aggregate principal amount of the
exchanged Global Security and an additional Global Security will
be authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
Maturities:
Each Book-Entry Note will mature on a date more than nine months
and not more than twelve years from date of issue.
Notice of Redemption Dates:
The Trustee will give notice to DTC prior to each redemption date
or repayment date (as specified in the Note), if any, at the time
and in the manner set forth in the Letter of Representation.
Denominations:
Unless otherwise provided in the applicable Pricing Supplement,
Book-Entry Notes will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000. Global Securities will be denominated in
principal amounts not in excess of U.S. $200,000,000 (or the
equivalent thereof in other currencies or composite currencies)
aggregate principal amount. If one or more Book-Entry Notes
having
5
<PAGE>
an aggregate principal amount in excess of $200,000,000
(or the equivalent thereof in one or more foreign or composite
currencies) aggregate principal amount and would, but for the
preceding sentence, be represented by a single Global Security,
then one Global Security will be issued to represent each U.S.
$200,000,000 (or the equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount of such
Book-Entry Note or Notes and an additional Global Security will
be issued to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest:
General. Interest on each Note will accrue from the date and at
the rate, and will be payable at the times and in the manner, set
forth in such Note. Standard & Poor's Corporation will use the
information received in the pending deposit message described
under Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other information
regarding the related Global Security in the appropriate weekly
bond report published by Standard & Poor's Corporation.
Notice of Interest Payment and Record Dates. On the first
Business Day of January, April, July and October of each year,
the Trustee will deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates that will occur
with respect to Book-Entry Notes during the six-month period
beginning on such first Business Day.
Payments of Principal and Interest:
Payments of Interest. Promptly after each Record Date, the
Trustee will deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on
each Global Security on the following
6
<PAGE>
Interest Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption or repayment
date) and the total of such amounts. DTC will confirm the amount
payable on each such Global Security on such Interest Payment
Date by reference to the daily bond reports published by Standard
& Poor's Corporation. The Company will pay to the Trustee, as
paying agent, the total amount of interest due on such Interest
Payment Date (other than at maturity), and the Trustee will pay
such amount to DTC at the times and in the manner set forth below
under "Manner of Payment".
Payments at Maturity or Upon Redemption or Repayment. On or about
the first Business Day of each month, the Trustee will deliver to
the Company and DTC a written list of principal and interest to
be paid on each Global Security maturing either at maturity or on
a redemption or repayment date in the following month. The
Company and DTC will confirm the amounts of such principal and
interest payments with respect to each such Global Security on or
about the fifth Business Day preceding the Stated Maturity Date
or redemption or repayment date of such Global Security. The
Company will pay to the Trustee, as the paying agent, the
principal amount of such Global Security, together with interest
due at such Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment."
Payments Not on Business Days. If any Interest Payment Date or
the Stated Maturity or redemption or repayment date for any
Book-Entry Note would fall on a day that is not a Business Day
with respect to such Note, such Interest Payment Date, Stated
Maturity or redemption or repayment date will be the next
following day that is a Business Day with respect to such Note,
except that, in the case of a Book-Entry LIBOR
7
<PAGE>
Note, if such Business Day is in the next succeeding calendar
month, such Interest Payment Date, Maturity Date or redemption or
repayment date will be the immediately preceding day that is a
Business Day with respect to such Note.
Promptly after payment to DTC of the principal and interest due
at the Stated Maturity or redemption or repayment date of a
Global Security, the Trustee will cancel such Global Security in
accordance with the terms of the Indenture and deliver it to the
Company with a certificate of cancellation.
Manner of Payment. Subject to the section of these Administrative
Procedures entitled "Payments not on Business Days," the total
amount of any principal and interest due on Global Securities on
any Interest Payment Date or at maturity or upon redemption or
repayment shall be paid by the Company to the Trustee in funds
available for immediate use by the Trustee not later than 10:30
A.M. (New York City time) on such date. The Company will make
such payment on such Global Securities by instructing the Trustee
to withdraw funds from an account maintained by the Company at
the Trustee. The Company will confirm such instructions in
writing to the Trustee. Prior to 11:30 A.M. (New York City time)
on each Stated Maturity or redemption or repayment date or as
soon as possible thereafter, the Trustee will pay by separate
wire transfer (using Fed-wire message entry instructions in a
form previously specified by DTC) to an account at the Federal
Reserve Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of interest or
principal (together with interest thereon) due on Global
Securities on any Stated Maturity or redemption or repayment
date. On each Interest Payment Date or, if any such date is not a
Business Day, as soon as possible thereafter, interest payments
shall be made to DTC in same day funds in accordance with
existing
8
<PAGE>
arrangements between the Trustee and DTC. Thereafter on
each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants in
whose names the Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system maintained by
DTC. Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC to such
Participants of the principal of and interest on the Book-Entry
Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments directly to the beneficial
owner of such Note.
Preparation of Pricing Supplement:
If any offer to purchase a Book-Entry Note is accepted by or on
behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of such
Note and will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act.
The Company shall use its reasonable best efforts to send such
Pricing Supplement by telecopy or overnight express (for delivery
by the close of business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time, on the Business
Day following the applicable trade date) to the Agent which made
or presented the offer to purchase the applicable Note (in such
capacity, the "Offering Agent") at the following applicable
address.
If to Merrill Lynch & Co.:
Merrill Lynch & Co.--Tritech Services
40 Colonial Drive
9
<PAGE>
Piscataway, New Jersey 08854
Attention: Prospectus Operations
Susannah Putnam
Telephone: (908) 885-2769
Telecopier: (908) 885-2774/5/6
If to CS First Boston Corporation:
CS First Boston Corporation
5 World Trade Center
New York, New York 10048
Attention: Joan Bryan
Telephone: 212/322-5105
Fax: 212/898-3726
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Medium-Term Note Trading
Fax: 212/902-0658
If to Lehman Brothers Inc.:
By telecopy to:
Lehman Brothers Inc.
c/o ADP
Prospectus Services
536 BroadHollow Road
Melville, New York 11747
Attention: Mike Ward
Telecopy: 516/249-7942
Telephone: 516/254-7106
and by hand to:
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: 212/526-8400
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, New York 10020
Attention: Medium-Term Note Trading
Desk, Carlos Cabrera
Fax: 212/764-7490
10
<PAGE>
If to Salomon Brothers Inc:
Salomon Brothers Inc
8800 Hidden River Parkway
Tampa, Florida 33637
Attention: Enrique Castro
Telephone: 813/558-7165
Fax: 813/558-4123
For record-keeping purposes, one copy of each Pricing Supplement
shall also be mailed to each Agent at the address for notices set
forth in the Distribution Agreement unless delivery to such
address is otherwise expressly required above.
In each instance that a Pricing Supplement is prepared, the
Offering Agent will provide a copy of such Pricing Supplement
(and, unless the Prospectus has been previously delivered, a copy
of the Prospectus) to each investor or purchaser of the relevant
Notes or its agent. Pursuant to Rule 434 ("Rule 434") of the
Securities Act of 1933, as amended, the Pricing Supplement may be
delivered separately from the Prospectus.
Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and issuance
of the Global Security representing such Note shall constitute
"settlement" with respect to such Note. All offers accepted by
the Company will be settled within three Business Days, or at
such time as the purchaser, the applicable Agent and the Company
shall agree, pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to settlement on
another day, which shall be no earlier than the next Business
Day. If procedures "A" and "B" of the applicable Settlement
Procedures with respect to a particular offer are not completed
on or before the time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled until the
Business Day following
11
<PAGE>
the completion of settlement procedures "A" and "B" or such later
date as the purchaser and the Company shall agree.
The foregoing settlement procedures may be modified with respect
to any purchase of Notes by an Agent as principal if so agreed by
the Company and such Agent.
Settlement Procedures:
Settlement Procedures with regard to each Book-Entry Note sold by
the Company to or through an Agent (unless otherwise specified
pursuant to a Terms Agreement, as defined in the Distribution
Agreement), shall be as follows:
A. The Offering Agent will advise the
Company by telephone that such Note
is a Book-Entry Note and of the
following settlement information:
1. Principal amount, and, if not
denominated in U.S. dollars,
authorized denominations and
currency of payment,
Authorized Denomination and
Specified Currency.
2. Stated Maturity.
3. In the case of a Fixed Rate
Book-Entry Note, the Interest
Rate, or in the case of a
Floating Rate Book-Entry Note,
the Initial Interest Rate (if
known at such time), Interest
Payment Date(s), Interest
Payment Period, Interest Rate
Basis, Index Maturity, First
Interest Reset Date, Interest
Reset Frequency, Spread or
Spread Multiplier (if any),
Minimum Interest Rate (if
any), and Maximum Interest
Rate (if any).
4. Redemption or repayment
provisions, if any.
5. Settlement date and time
(Original Issuance Date).
12
<PAGE>
6. Price.
7. The Offering Agent's
commission, if any, determined
as provided in the
Distribution Agreement.
8. Whether the Note is an OID
Note, and if it is an OID
Note, the total amount of OID,
the yield to maturity, and the
initial accrual period OID.
9. Any other applicable Terms.
B. The Company will advise the Trustee
by telephone or electronic trans-
mission (confirmed in writing at
any time on the same date) of the
information set forth in Settlement
Procedure "A" above. The Trustee
will then assign a CUSIP number to
the Global Security representing
such Note and will notify the
Company and such Agent of such
CUSIP number by telephone as soon
as practicable. The Company will
also advise the Offering Agent of
the CUSIP number assigned to the
Global Security.
C. The Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC, the Offering
Agent and Standard & Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment
Date for such Note, the number
of days by which such date
succeeds the related DTC
Record Date (which Date and,
in the case of all other
Notes, shall be the Regular
Record Date as defined in the
Note) and, if known, amount of
interest payable on such
Initial Interest Payment Date.
13
<PAGE>
3. The CUSIP number of the Global
Security representing such
Note.
4. Whether such Global Security
will represent any other Book-
Entry Note (to the extent
known at such time).
5. The number of Participant
accounts to be maintained by
DTC on behalf of the Offering
Agent and the Trustee.
D. The Trustee will complete and
authenticate the Global Security
representing such Note.
E. DTC will credit such Note to the
Trustee's participant account at
DTC.
F. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Note to the Trustee's participant
account and credit such Note to
such Offering Agent's participant
account and (ii) debit the Offering
Agent's settlement account and
credit the Trustee's settlement
account for an amount equal to the
price of such Note less the
Offering Agent's commission, if
any. The entry of such a deliver
order shall constitute a
representation and warranty by the
Trustee to DTC that (a) the Global
Security representing such Book-
Entry Note has been issued and
authenticated and (b) the Trustee
is holding such Global Security
pursuant to the Medium Term Note
Certificate Agreement between the
Trustee and DTC.
G. Unless such Agent purchased such
Note as principal, such Agent will
enter an SDFS deliver order through
DTC's Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
14
<PAGE>
account and credit such Note to the
participant accounts of the
Participants with respect to such
Note and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of such Agent
for an amount equal to the price of
such Note.
H. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "F" and "G"
will be settled in accordance with
SDFS operating procedures in effect
on the settlement date.
I. The Trustee will credit to the
account of the Company maintained
at the Trustee in funds available
for immediate use in the amount
transferred to the Trustee in
accordance with Settlement
Procedure "F".
J. Unless such Offering Agent
purchased such Note as principal
such Offering Agent will confirm
the purchase of such Note to the
purchaser either by transmitting to
the Participants with respect to
such Note a confirmation order or
orders through DTC's institutional
delivery system or by mailing a
written confirmation to such
purchaser.
K. Monthly, the Trustee will send to
the Company a statement setting
forth the principal amount of Notes
outstanding as of that date under
the Indenture and setting forth a
brief description of any sales of
which the Company has advised the
Trustee but which have not yet been
settled.
Settlement Procedures Timetable:
For sales by the Company of Book-Entry Notes to or through an
Agent (unless otherwise specified pursuant to a Terms Agreement)
for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J"
15
<PAGE>
set forth above shall be completed as soon as possible following
the trade but not later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the trade date
or within one hour following
the trade
B 12:00 Noon on the trade date
or within one hour following
the trade
C No later than the close of
business on the trade date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement
date
F-G 2:00 P.M. on settlement date
H 4:00 P.M. on settlement date
I-J 5:00 P.M. on settlement date
Settlement Procedure "H" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled,
the Trustee, after receiving notice from the Company or such
Agent, will deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no later than
5:00 P.M., New York City time, on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to the Trustee's
participant account, provided that the Trustee's participant
account contains a principal amount of the Global Security
representing such Note that is at least
16
<PAGE>
equal to the principal amount to be debited. If a withdrawal
message is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark such
Global Security "cancelled," make appropriate entries in the
Trustee's records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global Security shall,
in accordance with CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities, one
of which shall represent such Book-Entry Note or Notes and shall
be cancelled immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial
purchaser thereof (or a person, including an indirect
participant in DTC, acting on behalf of such purchaser), such
Participants and, in turn, such Agent shall enter SDFS deliver
orders through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
17
<PAGE>
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedures "D" and "F", for the
authentication and issuance of a Global Security representing
that portion of the Book-Entry Notes in respect to which there
has not been a failure to settle and will make appropriate
entries in its records.
18
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in
connection with the Certificated Notes.
Issuance:
Each Certificated Note will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Note will
bear an Original Issuance Date, which will be (i) with respect to
an original Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of a Certificated
Note or in lieu of a destroyed, lost or stolen Certificated Note,
the original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such subsequently
issued Certificated Note.
Registration:
Certificated Notes will be issued only in fully registered form
without coupons.
Maturities:
Each Certificated Note will mature on a date more than nine
months and not more than twelve years from date of issue.
Currency:
If other than U.S. dollars, the currency denomination with
respect to any Certificated Note and the payment of interest and
the repayment of principal with respect to any such Certificated
Note shall be as set forth therein and in the applicable Pricing
Supplement.
Denominations:
Unless otherwise provided in an applicable Pricing Supplement, the
denomination of any Certificated Note will be a minimum of
U.S. $1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000 or the equivalent.
Interest:
General. Interest on each Note will accrue from the date and
at the rate, and will be payable at the times and in
the manner, set forth in such Note.
19
<PAGE>
Payments of Principal and Interest:
The Trustee will pay principal and premium, if any, on each
Certificated Note at maturity or upon redemption or repayment
upon presentation and surrender of such Note to the Trustee. Such
payment, together with payment of interest due at maturity or
upon redemption or repayment of such Note, will be made in funds
available for immediate use by the Trustee and in turn by the
holder of such Note. Certificated Notes presented for payment to
the Trustee at maturity or upon redemption or repayment for
payment will be cancelled by the Trustee and delivered to the
Company with a certificate of cancellation.
All interest payments on a Certificated Note (other than interest
due at maturity or upon redemption or repayment) will be made
by check drawn on the Trustee (or another person appointed by the
Trustee) and mailed by the Trustee to the person entitled thereto
as provided in such Note and the relevant Indenture; provided,
however, that (i) the holder of U.S.$5,000,000 or more in
principal amount of Notes having the same Interest Payment Date
may elect at any time to have payment made in immediately
available funds and (ii) unless otherwise specified in the
applicable Pricing Supplement or unless alternative arrangements
are made, payments on Notes in a currency other than U.S. dollars
will be made by wire transfer of immediately available funds to
an account maintained by the payee with a bank located outside
the United States and the holder of such Notes will provide the
Trustee with the appropriate wire transfer instructions.
Following each Regular Record Date, the Trustee will furnish the
Company with a list of interest payments to be made on the
following Interest Payment Date for each Certificated Note and in
total for all Certificated Notes. Interest at maturity or upon
redemption or repayment will be payable to the person to whom the
payment of principal is payable. The Trustee will provide monthly
to the
20
<PAGE>
Company lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing or to be
redeemed in the next month. The Trustee will be responsible for
withholding taxes on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date or the Stated Maturity or redemption
or repayment date for any Certificated Note would fall on a day
that is not a Business Day with respect to such Note, such
Interest Payment Date, Stated Maturity or redemption or repayment
date will be the following day that is a Business Day with
respect to such Note, except that, in the case of a Certificated
LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day with respect to
such Certificated LIBOR Note.
Preparation of Pricing Supplement:
If any offer to purchase a Certificated Note is accepted by or on
behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of such
Note and will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act.
The Company shall use its reasonable best efforts to send such
Pricing Supplement by telecopy or overnight express (for delivery
by the close of business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time, on the Business
Day following the applicable trade date) to the Agent which made
or presented the offer to purchase the applicable Note (in such
capacity, the "Offering Agent") and the Trustee at the following
applicable address:
21
<PAGE>
If to Merrill Lynch & Co.:
Merrill Lynch & Co.--Tritech Services
40 Colonial Drive
Piscataway, New Jersey 08854
Attention: Prospectus Operations
Susannah Putnam
Telephone: (908) 885-2769
Telecopier: (908) 885-2774/5/6
If to CS First Boston Corporation:
CS First Boston Corporation
5 World Trade Center
New York, New York 10048
Attention: Joan Bryan
Telephone: 212/322-5105
Fax: 212/898-3726
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Medium-Term Note Trading
Fax: 212/902-0658
If to Lehman Brothers Inc.:
Chemical Bank
4 New York Plaza
Ground Floor
Receive Window
FAO Lehman Brothers
New York, New York
Attention: Jennifer Jones
Telephone: 212/623-5953
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, New York 10020
Attention: Medium-Term Note Trading
Desk, Carlos Cabrera
Fax: 212/764-7490
If to Salomon Brothers Inc:
Salomon Brothers Inc
8800 Hidden River Parkway
Tampa, Florida 33637
22
<PAGE>
Attention: Enrique Castro
Telephone: 813/558-7165
Fax: 813/558-4123
For record-keeping purposes, one copy of each Pricing Supplement
shall also be mailed to each Agent at the address for notices set
forth in the Distribution Agreement unless delivery to such
address is otherwise expressly required above.
In each instance that a Pricing Supplement is prepared, the
Offering Agent will provide a copy of such Pricing Supplement
(and, unless a copy of the Prospectus has been previously
delivered, a copy of the Prospectus) to each investor or
purchaser of the relevant Notes or its agent. Pursuant to Rule
434 ("Rule 434") of the Securities Act of 1933, as amended, the
Pricing Supplement may be delivered separately from the
Prospectus.
Settlement:
The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to an
Agent and such Agent's delivery of such Note against receipt of
immediately available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the Company will be
settled within three Business Days, or at such time as the
purchaser, the applicable Agent and the Company shall agree,
pursuant to the timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement on another
date. If procedures "A" and "B" of the applicable Settlement
Procedures with respect to a particular offer are not completed
on or before the time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled until the
Business Day following the completion of settlement procedures
"A" and "B" or such later date as the purchaser and the Company
shall agree.
23
<PAGE>
The foregoing settlement procedures may be modified with respect
to any purchase of Notes by an Agent as principal if so agreed by
the Company and such Agent.
Settlement Procedures:
Settlement Procedures with regard to each Certificated Note sold
by the Company to or through an Agent (unless otherwise specified
pursuant to a Terms Agreement) shall be as follows:
A. The Offering Agent will advise the
Company by telephone that such Note
is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to
be registered ("Registered
Owner").
2. Address of the Registered
Owner and address for payment
of principal and interest.
3. Taxpayer identification number
of the Registered Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the Inter-
est Rate, or, in the case of a
Floating Rate Certificated
Note, the Initial Interest
Rate (if known at such time),
Interest Payment Date(s),
Interest Payment Period,
Interest Rate Basis, Index
Maturity, First Interest Rate
Reset Date, Interest Reset
Frequency, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any), and
Maximum Interest Rate (if
any).
7. Redemption or repayment
provisions, if any.
24
<PAGE>
8. Settlement date and time
(original Issuance Date).
9. Price.
10. The Offering Agent's
commission, if any, determined
as provided in the
Distribution Agreement.
11. Denominations (if other than
$1,000 and integral multiples
of $1,000 in excess thereof).
12. Specified Currency (if other
than U.S. dollars).
13. Whether the Note is an OID
Note, and if it is an OID
Note, the total amount of OID,
the yield to maturity, the
initial accrual period OID.
14. Any other applicable Terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which packet
will contain the following documents in forms that
have been approved by the Company, the Agents and the
Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For such Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note
and authenticate such Note and
deliver it (with the confirmation)
and Stubs One and Two to the
25
<PAGE>
Offering Agent, and the Offering
Agent will acknowledge receipt of
the Note by stamping or otherwise
marking Stub One and returning it
to the Trustee. Such delivery will
be made only against such acknow-
ledgment of receipt and evidence
that instructions have been given
by the Offering Agent for payment
to the account of the Company at
the Trustee or to such other
account as the Company shall have
specified to the Offering Agent and
the Trustee in funds available for
immediate use, of an amount equal
to the price of such Note less the
Offering Agent's commission, if
any. In the event that the
instructions given by the Offering
Agent for payment to the account of
the Company are revoked, the
Company will as promptly as
possible wire transfer to the
account of the Offering Agent an
amount of immediately available
funds equal to the amount of such
payment made.
E. Unless the Offering Agent purchased
such Note as principal, the
Offering Agent will deliver such
Note (with confirmation) to the
customer against payment in
immediately payable funds. Prior
to delivery of the Certificated
Note, the Offering Agent will have
previously provided a copy of the
most recent Prospectus and the
applicable Pricing Supplement,
which pursuant to Rule 434 may be
delivered separately from the
Prospectus, to such purchaser.
F. The Trustee will send Stub Three to
the Company by first-class mail.
Periodically, the Trustee will also
send to the Company a statement
setting forth the principal amount
of the Notes outstanding as of that
date under the Indenture and
setting forth a brief description
of any sales of which the Company
26
<PAGE>
has advised the Trustee but which
have not yet been settled.
Settlement Procedures Timetable:
For sales by the Company of Certificated Notes to or through an
Agent (unless otherwise specified pursuant to a Terms Agreement),
Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York City time)
set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle:
If a purchaser fails to accept delivery of and make payment for
any Certificated Note, the relevant Agent will notify the Company
and the Trustee by telephone and return such Note to the Trustee.
Upon receipt of such notice, the Company will immediately wire
transfer to the account of such Agent an amount equal to the
amount previously credited thereto in respect of such Note. Such
wire transfer will be made on the settlement date, if possible,
and in any event not later than the Business Day following the
settlement date. If the failure shall have occurred for any
reason other than a default by such Agent in the performance of
its obligations hereunder and under the Distribution Agreement
with the Company, then the Company will reimburse such Agent or
the Trustee, appropriate, on an equitable basis for its loss of
the use of the funds during the period when they were credited to
the account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure occurred, the
Trustee will mark such Note "can-
27
<PAGE>
celled," make appropriate entries in the Trustee's records and
send such Note to the Company.
28
EXHIBIT 23(a)
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.
/s/ KPMG Peat Marwick LLP
San Francisco, CA
August 2, 1995
