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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): April 1, 1996
WELLS FARGO & COMPANY
(Exact name of registrant as specified in its charter)
. Delaware 1-6214 No. 13-2553920
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
420 Montgomery Street, San Francisco, California 94163
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 477-1000
Not applicable
(Former name or former address, if changed since last report)
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Item 2: ACQUISITION OR DISPOSITION OF ASSETS
On January 24, 1996, Wells Fargo & Company (Company) announced it had
entered into a definitive merger agreement (Merger Agreement) with First
Interstate Bancorp (First Interstate). On April 1, 1996, the Company
completed the merger with First Interstate. In accordance with the terms of
the Merger Agreement, First Interstate shareholders received a tax-free
exchange of two-thirds of a share of the Company's common stock for each
share of First Interstate common stock. All information required by Item 2 of
Form 8-K relating to this merger has been previously filed with the
Securities and Exchange Commission.
Item 7: FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of First Interstate:
(1) The Consolidated Financial Statements as of December 31,
1995 and 1994 and for each of the years in the three-year
period ended December 31, 1995 (incorporated by reference
from First Interstate's Annual Report on Form 10-K for the
year ended December 31, 1995).
(b) Pro forma financial information:
Wells Fargo & Company and First Interstate Bancorp Pro Forma
Combined Financial Information (unaudited) (incorporated by
reference from the Proxy Statement, dated February 27, 1996, of
Wells Fargo & Company at pages 81-89).
(c) Exhibits
2 Merger Agreement announced January 24, 1996 between the
Company and First Interstate (incorporated by reference from
Appendix A in the Company's Registration Statement on Form
S-4 No. 33-64575 dated February 27, 1996).
4(a) Certificate of Determination for 9 7/8 % Preferred Stock,
Series F dated February 26, 1996
4(b) Certificate of Determination for 9 % Preferred Stock,
Series G dated February 26, 1996
23 Consent of Independent Accountants for First Interstate
Bancorp (incorporated by reference from Exhibit 99(b) on
Form 8-K filed by the Company on April 4, 1996).
27 First Interstate Financial Data Schedule for the year ended
December 31, 1995
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SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on April 10, 1996.
WELLS FARGO & COMPANY
By: FRANK A. MOESLEIN
-----------------------------
Frank A. Moeslein
Executive Vice President and Controller
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EXHIBIT INDEX
Exhibit Item Page
- ------- ---- ----
2 Merger Agreement announced January 24, 1996 between the Company
and First Interstate (incorporated by reference from Appendix A
in the Company's Registration Statement on Form S-4 No. 33-64575
dated February 27, 1996)
4(a) Certificate of Determination for 9 7/8% Preferred Stock, Series F
dated February 26, 1996
4(b) Certificate of Determination for 9% Preferred Stock, Series G
dated February 26, 1996
23 Consent of Independent Accountants for First Interstate Bancorp
(incorporated by reference from Exhibit 99(b) on Form 8-K filed
by the Company on April 4, 1996)
27 First Interstate Financial Data Schedule for the year ended
December 31, 1995
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EXHIBIT 4(a)
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
9 7/8% PREFERRED STOCK, SERIES F
OF
WELLS FARGO & COMPANY
WE, THE UNDERSIGNED, William F. Zuendt and Guy Rounsaville, Jr., the
President and the Secretary, respectively, of Wells Fargo & Company, a Delaware
corporation (the "Company"), DO HEREBY CERTIFY that the following resolution was
duly adopted by the Financing Committee of the Board of Directors of the Company
by unanimous written consent dated as of February 26, 1996:
RESOLVED that, pursuant to authority conferred upon the Board of
Directors by the Restated Certificate of Incorporation of the Company and
delegated to the Financing Committee by resolutions of the Board of
Directors adopted on January 21, 1992, the Financing Committee of the Board
of Directors hereby authorizes the issuance of a series of Preferred Stock
of the Company to consist of l,000,000 shares, the voting powers,
designation, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions
thereof, in addition to those set forth in the Restated Certificate of
Incorporation, are hereby fixed as follows:
1. NUMBER OF SHARES. The series of preferred stock created hereby
shall comprise 1,000,000 shares designated as the "9 7/8% Preferred Stock,
Series F" (the "9 7/8% Preferred Stock"). The 9 7/8% Preferred Stock has a
par value of $5.00 per share and a liquidation preference of $200.00 per
share. The number of authorized shares of the 9 7/8% Preferred Stock may
be reduced by further resolution duly adopted by or pursuant to authority
conferred by the Board of Directors of the Company and by the filing of a
certificate pursuant to the provisions of the General Corporation Law of
the State of Delaware stating that such reduction has been so authorized,
but the number of authorized shares of the 9 7/8% Preferred Stock shall not
be increased.
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2. DIVIDENDS.
2.1 RIGHT TO RECEIVE CASH DIVIDENDS. The holders of shares of the
9 7/8% Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Company or any duly authorized
committee thereof, out of funds legally available therefor, cumulative cash
dividends, payable quarterly in arrears on the last day of March, June,
September and December of each year, commencing June 30, 1996 (each a
"Dividend Payment Date"), at the rate per annum payable as set forth in
Section 2.2. Each such dividend shall be paid to the holders of record of
the 9 7/8% Preferred Stock as they appear on the stock register of the
Company on such record date, not exceeding 60 calendar days preceding the
Dividend Payment Date thereof, as shall be fixed by the Board of Directors
of the Company or by a committee of said Board of Directors duly authorized
to fix such date.
The amount of dividends per share payable for each quarterly dividend
period shall be computed by dividing the dividend rate for such dividend
period by four and applying such rate against the liquidation preference
per share of the 9 7/8% Preferred Stock. Dividends payable on the 9 7/8%
Preferred Stock for any period less than a full quarterly dividend period,
including the Initial Dividend Period, as defined below, shall be computed
on the basis of a 360-day year of four 90-day quarters and the actual
number of days elapsed in the period for which payable.
2.2. DIVIDEND RATE. The dividend rate on the shares of 9 7/8%
Preferred Stock for the period from April l, l996, to and including
June 30, 1996 (the "Initial Dividend Period"), and for each quarterly
dividend period thereafter shall be 9 7/8% per annum.
2.3 DIVIDEND RANK.
(a) So long as any shares of the 9 7/8% Preferred Stock are
outstanding, no dividends shall be paid or declared upon any shares of any
class or series of stock of the Company ranking on a parity with the 9 7/8%
Preferred Stock in the payment of dividends for any period unless, at or
prior to the time of such payment or declaration, (i) all dividends payable
on the 9 7/8% Preferred Stock for all dividend periods ended prior to the
date of such payment or declaration shall have been paid, and (ii) a like
proportionate dividend for the same dividend period, ratably in proportion
to the respective annual dividend rates fixed thereupon, shall be paid upon
or declared for the 9 7/8% Preferred Stock then issued and outstanding.
(b) If any shares of the 9 7/8% Preferred Stock are outstanding, no
full dividends shall be declared or paid or set apart for payment on any
series of the preferred stock, $5.00 par value, of the Company (the
"Preferred Stock") ranking, as to dividends, on a parity with or junior to
the 9 7/8% Preferred Stock for any period unless full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the 9 7/8%
Preferred Stock for all dividend periods terminating on or prior to the
date of payment of such full cumulative dividends. In the event that
dividends are not paid in full (or a sum sufficient for such full payment
set apart) upon the shares of the 9 7/8% Preferred Stock or the shares of
any other series of Preferred Stock ranking on a parity as to dividends
with the shares of the 9 7/8% Preferred Stock, dividends upon shares
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of the 9 7/8% Preferred Stock and dividends on shares of such other series
of Preferred Stock shall be declared by the Board of Directors or a duly
authorized committee thereof pro rata with respect thereto so that the
amount of dividends per share on the 9 7/8% Preferred Stock and such other
series of Preferred Stock so declared shall in all cases bear to each other
the same ratio that full cumulative dividends on the shares of the 9 7/8%
Preferred Stock and full dividends, including accumulations, if any, on the
shares of such other series of Preferred Stock, bear to each other.
(c) Except as provided in this Section 2.3, if full cumulative
dividends on all outstanding shares of the 9 7/8% Preferred Stock at the
rate per share set out in Section 2.2 shall not have been declared and paid
or set aside for payment, the Company shall not, until full cumulative
dividends have been declared and paid or set aside for payment on all
outstanding shares of the 9 7/8% Preferred Stock, (i) declare or pay or set
aside for payment any dividends (other than a dividend in common stock,
$5.00 par value, of the Company (the "Common Stock") or in any other stock
ranking junior to the 9 7/8% Preferred Stock as to dividends and upon
liquidation, dissolution or winding up of the Company) or make any other
distribution on the Common Stock or any other stock of the Company ranking
junior to or on a parity with shares of the 9 7/8% Preferred Stock, with
respect to the payment of dividends or distribution of assets upon
liquidation, dissolution or winding up of the Company, or (ii) make any
payment on account of the purchase, redemption or other retirement of, or
pay or make available any moneys for a sinking fund for the redemption of,
any shares of Common Stock or such other junior or parity stock except by
conversion into or exchange for stock of the Company ranking junior to the
9 7/8% Preferred Stock as to dividends and upon liquidation.
(d) Any dividend payment made on shares of the 9 7/8% Preferred
Stock shall first be credited against the earliest accumulated but unpaid
dividend due with respect to such shares.
3. REDEMPTION.
3.1 REDEMPTION PRICES AND DATES. The shares of the 9 7/8% Preferred
Stock shall not be redeemable prior to November 15, 1996. On or after
November 15, 1996, the Company, at its option, may redeem the shares of the
9 7/8% Preferred Stock as a whole or from time to time in part, at a
redemption price of $200.00 per share, plus, in each case, all accrued and
unpaid dividends thereon (whether or not earned or declared) to the date
fixed for redemption.
3.2 RESTRICTIONS. Notwithstanding the foregoing, if full cumulative
dividends on all outstanding shares of 9 7/8% Preferred Stock have not
been paid or contemporaneously declared and paid for all past dividend
periods, no shares of 9 7/8% Preferred Stock shall be redeemed pursuant to
this Section 3 unless all outstanding shares of 9 7/8% Preferred Stock are
simultaneously redeemed, and, unless the full cumulative dividends on all
outstanding shares of 9 7/8% Preferred Stock and any other Preferred Stock
ranking on a parity therewith as to dividends and upon liquidation shall
have been paid or contemporaneously are declared and paid for all past
dividend periods, the Company shall not purchase or otherwise acquire any
shares of 9 7/8% Preferred Stock or shares of any other series of Preferred
Stock ranking on a parity therewith as to dividends and upon liquidation
(except by conversion into or exchange for shares
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of the Company ranking junior to the shares of the 9 7/8% Preferred Stock);
provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of the 9 7/8% Preferred Stock or of shares of such
other series of Preferred Stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of the 9 7/8%
Preferred Stock or of such other series.
3.3 PRO RATA REDEMPTION. In the event that fewer than all the
outstanding shares of the 9 7/8% Preferred Stock are to be redeemed, the
number of shares to be redeemed shall be determined by the Board of
Directors or a duly authorized committee thereof and the shares to be
redeemed shall be redeemed pro rata from the holders of record of such
shares in proportion to the number of such shares held by such holders
(with adjustments to avoid fractional shares).
3.4 NOTICE. In the event the Company shall redeem shares of the
9 7/8% Preferred Stock, notice of such redemption (a "Notice of
Redemption") shall be given by first class mail, postage prepaid, mailed
not less than 40 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Company. Each
such Notice of Redemption shall state: (i) the redemption date; (ii) the
number of shares of the 9 7/8% Preferred Stock to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder; (iii) the
redemption price (specifying the amount of accrued and unpaid dividends
to be included therein); (iv) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price;
(v) that dividends on the shares to be redeemed will cease to accumulate
on such redemption date; and (vi) the provision hereunder pursuant to
which such redemption is being made.
3.5 CESSATION OF DIVIDENDS. If a Notice of Redemption has been
given, from and after the redemption date for the shares of the 9 7/8%
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 plus an amount equal to full cumulative
dividends thereon (whether or not earned or declared) to the date fixed for
redemption) dividends on the shares of the 9 7/8% Preferred Stock so called
for redemption shall cease to accrue and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as
stockholders of the Company (except the right to receive the redemption
price plus an amount equal to such accumulated and unpaid dividends) shall
cease. Upon surrender in accordance with said Notice of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if
the Board of Directors of the Company shall so require and the Notice shall
so state), the redemption price set forth above plus an amount equal to
such accumulated and unpaid dividends shall be paid by the paying agent for
the Company. In the case that fewer than all of the shares represented by
any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
3.6 STATUS OF REDEEMED SHARES. Shares of 9 7/8% Preferred Stock
which have been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without designation as
to series, until such shares are once more designated as part of a
particular series by or on behalf of the Board of Directors.
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4. LIQUIDATION RIGHTS.
4.1 PAYMENT UPON LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Company, the holders of outstanding shares of the 9 7/8% Preferred Stock
shall be entitled, before any payment or distribution shall be made on the
Common Stock or any other class of stock ranking junior to the 9 7/8%
Preferred Stock upon liquidation, to be paid in full an amount equal to
$200.00 per share, plus an amount equal to all accumulated and unpaid
dividends (whether or not earned or declared). After payment of the full
amount of such liquidation distribution, the holders of the 9 7/8%
Preferred Stock shall not be entitled to any further participation in any
distribution of assets of the Company.
4.2 INSUFFICIENT ASSETS. If, upon any liquidation, dissolution or
winding up of the Company, the assets of the Company, or proceeds thereof,
distributable among the holders of the shares of the 9 7/8% Preferred Stock
and the holders of shares of all other stock of the Company ranking, as to
liquidation, dissolution or winding up, on a parity with the 9 7/8%
Preferred Stock, shall be insufficient to pay in full the preferential
amount set forth in Section 4.1 and liquidating payments on all such other
stock ranking, as to liquidation, dissolution or winding up, on a parity
with the 9 7/8% Preferred Stock, then such assets, or the proceeds thereof,
shall be distributed among the holders of the 9 7/8% Preferred Stock and
all such other stock ratably in accordance with the respective amounts
which would be payable on such shares of the 9 7/8% Preferred Stock and any
such other stock if all amounts payable thereon were paid in full (which,
in the case of such other stock, may include accumulated dividends).
4.3 PAYMENTS ON STOCK RANKING JUNIOR. In the event of any such
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, unless and until payment in full is made to the holders of all
outstanding shares of the 9 7/8% Preferred Stock of the liquidation
distribution to which they are entitled pursuant to Section 4.1, no
dividend or other distribution shall be made to the holders of the Common
Stock or any other class of stock ranking upon liquidation junior to the
shares of the 9 7/8% Preferred Stock and no purchase, redemption or other
acquisition for any consideration by the Company shall be made in respect
of the shares of the Common Stock or such other class of stock.
4.4 DEFINITION. Neither the consolidation nor merger of the Company
into or with another corporation or corporations shall be deemed to be a
liquidation, dissolution or winding up of the Company within the meaning of
this Section 4.
5. VOTING RIGHTS.
5.1 GENERALLY. Holders of the 9 7/8% Preferred Stock shall not have
any voting rights except as hereinafter provided or as otherwise from time
to time required by law. If at the time of any annual meeting of
stockholders for the election of directors of the Company a default in
preference dividends shall exist on the 9 7/8% Preferred Stock, or any
series of Preferred Stock ranking on a parity with the 9 7/8% Preferred
Stock as to dividends or upon liquidation (the 9
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7/8% Preferred Stock and any such series of Preferred Stock being herein
referred to as the "Parity Preferred Stock"), the maximum authorized number
of members of the Board of Directors shall automatically be increased by
two. The two vacancies so created shall be filled at such meeting by the
vote of the holders of the 9 7/8% Preferred Stock and the holders of any
other Parity Preferred Stock upon which like voting rights have been
conferred and are then exercisable (the Preferred Stock and such other
Parity Preferred Stock being herein referred to as "Voting Parity Preferred
Stock"), voting together as a single class without regard to series, to the
exclusion of the holders of the Common Stock and any other class of capital
stock of the Company that is not Voting Parity Preferred Stock. The
holders of the Common Stock and any other class of capital stock of the
Company which has the right to vote at such meeting (other than the Voting
Parity Preferred Stock) shall elect the remaining directors. Such right of
the holders of the Voting Parity Preferred Stock shall continue until there
are no preference dividends in arrears upon the Voting Parity Preferred
Stock of any series at which time such right shall terminate, except as by
law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned. Upon any such
termination of the right of the holders of shares of Voting Parity
Preferred Stock as a class to vote for directors as herein provided, the
term of office of each director then in office elected by such holders
voting as a class (herein called a "Preferred Director") shall terminate
immediately. Any Preferred Director may be removed by, and shall not be
removed without cause except by, the vote of the holders of record of the
outstanding shares of Voting Parity Preferred Stock, voting together as a
single class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Voting Parity Preferred Stock, called for such
purpose. So long as a default in any preference dividends on the Voting
Parity Preferred Stock of any series shall exist, (A) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (B)) by the person appointed by an instrument in writing
signed by the remaining Preferred Director and filed with the Company and
(B) in the case of the removal of any Preferred Director, the vacancy may
be filled by the person elected by the vote of the holders of outstanding
shares of Voting Parity Preferred Stock, voting together as a single class
without regard to series, at the same meeting at which such removal shall
be voted or at any subsequent meeting. Each director appointed as
aforesaid by the remaining Preferred Director shall be deemed to be a
Preferred Director. Whenever a default in preference dividends on the
Voting Parity Preferred Stock shall no longer exist: (i) the term of
office of the Preferred Directors shall end, (ii) the special voting powers
vested in the holders of the Voting Parity Preferred Stock as provided in
this resolution shall expire, and (iii) the number of members of the Board
of Directors shall be such number as may be provided for in the Company's
By-Laws irrespective of any increase made as provided in this resolution. A
"default in preference dividends" on the Voting Parity Preferred Stock of
any series shall be deemed to have occurred whenever the amount of unpaid
accrued dividends upon such series through the last preceding dividend
period therefor shall be equivalent to six quarterly dividends (which, with
respect to the 9 7/8% Preferred Stock, shall be deemed to be dividends in
respect of a number of dividend periods containing not less than 540 days)
or more, and having so occurred, such default shall be deemed to exist
thereafter until, but only until, full cumulative dividends on all shares
of Voting Parity Preferred Stock of each and every series then outstanding
shall have been paid to the end of the last preceding dividend period.
5.2 RANKING. So long as any shares of 9 7/8% Preferred Stock remain
outstanding, the Company shall not, without the affirmative vote or consent
of the holders of at least two-
<PAGE>
thirds of the shares of the 9 7/8% Preferred Stock outstanding at the time,
given in person or by proxy, either in writing or at a meeting (voting
separately as a class together with all other series of Parity Preferred
Stock), (i) authorize, create or issue, or increase the authorized or
issued amount of, any class or series of stock ranking prior to the 9 7/8%
Preferred Stock with respect to payment of dividends or the distribution of
assets on liquidation, or reclassify any authorized stock of the Company
into any such shares, or create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase any such
shares; or (ii) amend, alter or repeal the provisions of the Company's
Restated Certificate of Incorporation or of the resolution contained in the
certificate of designation for the 9 7/8% Preferred Stock, whether by
merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the 9 7/8%
Preferred Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized Preferred Stock or the creation or
issuance of other series of Preferred Stock, or any increase in the amount
of authorized shares of such series or of any other series of Preferred
Stock, in each case ranking on a parity with or junior to the 9 7/8%
Preferred Stock shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
5.3 APPLICABILITY. The foregoing voting provisions will not apply
if, at or prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding shares of
the 9 7/8% Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust to
effect such redemption.
6. CONVERSION OR EXCHANGE. The holders of shares of the 9 7/8%
Preferred Stock shall not have any right herein to convert such shares into
or exchange such shares for shares of any other class or classes or of any
other series of any class or classes of capital stock of the Company.
7. RANKING. The 9 7/8% Preferred Stock shall rank on a parity as to
dividends and liquidation with each series of Preferred Stock outstanding
on the date of issuance of the 9 7/8% Preferred Stock.
IN WITNESS WHEREOF, Wells Fargo & Company has caused this Certificate to be
executed by its officers thereunto duly authorized as of this 26th day of
February 1996.
/s/WILLIAM F. ZUENDT
----------------------
William F. Zuendt
President
Attest:
/s/GUY ROUNSAVILLE, JR.
--------------------------
Guy Rounsaville, Jr.
Secretary
<PAGE>
EXHIBIT 4(b)
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
9% PREFERRED STOCK, SERIES G
OF
WELLS FARGO & COMPANY
WE, THE UNDERSIGNED, William F. Zuendt and Guy Rounsaville, Jr., the
President and the Secretary, respectively, of Wells Fargo & Company, a Delaware
corporation (the "Company"), DO HEREBY CERTIFY that the following resolution was
duly adopted by the Financing Committee of the Board of Directors of the Company
by unanimous written consent dated as of February 26, 1996:
RESOLVED that, pursuant to authority conferred upon the Board of
Directors by the Restated Certificate of Incorporation of the Company and
delegated to the Financing Committee by resolutions of the Board of
Directors adopted on January 21, 1992, the Financing Committee of the Board
of Directors hereby authorizes the issuance of a series of Preferred Stock
of the Company to consist of 750,000 shares, the voting powers,
designation, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions
thereof, in addition to those set forth in the Restated Certificate of
Incorporation, are hereby fixed as follows:
1. NUMBER OF SHARES. The series of preferred stock created hereby
shall comprise 750,000 shares designated as the "9% Preferred Stock,
Series G" (the "9% Preferred Stock"). The 9% Preferred Stock has a par
value of $5.00 per share and a liquidation preference of $200.00 per share.
The number of authorized shares of the 9% Preferred Stock may be reduced by
further resolution duly adopted by or pursuant to authority conferred by
the Board of Directors of the Company and by the filing of a certificate
pursuant to the provisions of the General Corporation Law of the State of
Delaware stating that such reduction has been so authorized, but the number
of authorized shares of the 9% Preferred Stock shall not be increased.
2. DIVIDENDS.
2.1 RIGHT TO RECEIVE CASH DIVIDENDS. The holders of shares of the 9%
Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors of the Company or any duly authorized committee
thereof, out of funds legally available therefor, cumulative cash
dividends, payable quarterly in arrears on the last day of March, June,
September and December of each year, commencing June 30, 1996 (each a
"Dividend Payment
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Date"), at the rate per annum payable as set forth in Section 2.2. Each
such dividend shall be paid to the holders of record of the 9% Preferred
Stock as they appear on the stock register of the Company on such record
date, not exceeding 60 calendar days preceding the Dividend Payment Date
thereof, as shall be fixed by the Board of Directors of the Company or by a
committee of said Board of Directors duly authorized to fix such date.
The amount of dividends per share payable for each quarterly dividend
period shall be computed by dividing the dividend rate for such dividend
period by four and applying such rate against the liquidation preference
per share of the 9% Preferred Stock. Dividends payable on the 9% Preferred
Stock for any period less than a full quarterly dividend period, including
the Initial Dividend Period, as defined below, shall be computed on the
basis of a 360-day year of four 90-day quarters and the actual number of
days elapsed in the period for which payable.
2.2. DIVIDEND RATE. The dividend rate on the shares of 9% Preferred
Stock for the period from April l, l996, to and including June 30, 1996
(the "Initial Dividend Period"), and for each quarterly dividend period
thereafter shall be 9.00% per annum.
2.3 DIVIDEND RANK.
(a) So long as any shares of the 9% Preferred Stock are outstanding,
no dividends shall be paid or declared upon any shares of any class or
series of stock of the Company ranking on a parity with the 9% Preferred
Stock in the payment of dividends for any period unless, at or prior to the
time of such payment or declaration, (i) all dividends payable on the 9%
Preferred Stock for all dividend periods ended prior to the date of such
payment or declaration shall have been paid, and (ii) a like proportionate
dividend for the same dividend period, ratably in proportion to the
respective annual dividend rates fixed thereupon, shall be paid upon or
declared for the 9% Preferred Stock then issued and outstanding.
(b) If any shares of the 9% Preferred Stock are outstanding, no full
dividends shall be declared or paid or set apart for payment on any series
of the preferred stock, $5.00 par value, of the Company (the "Preferred
Stock") ranking, as to dividends, on a parity with or junior to the 9%
Preferred Stock for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the 9% Preferred
Stock for all dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. In the event that dividends are
not paid in full (or a sum sufficient for such full payment set apart) upon
the shares of the 9% Preferred Stock or the shares of any other series of
Preferred Stock ranking on a parity as to dividends with the shares of the
9% Preferred Stock, dividends upon shares of the 9% Preferred Stock and
dividends on shares of such other series of Preferred Stock shall be
declared by the Board of Directors or a duly authorized committee thereof
pro rata with respect thereto so that the amount of dividends per share on
the 9% Preferred Stock and such other series of Preferred Stock so declared
shall in all cases bear to each other the same ratio that full cumulative
dividends on the shares of the 9% Preferred Stock and full dividends,
including accumulations, if any, on the shares of such other series of
Preferred Stock, bear to each other.
<PAGE>
(c) Except as provided in this Section 2.3, if full cumulative
dividends on all outstanding shares of the 9% Preferred Stock at the rate
per share set out in Section 2.2 shall not have been declared and paid or
set aside for payment, the Company shall not, until full cumulative
dividends have been declared and paid or set aside for payment on all
outstanding shares of the 9% Preferred Stock, (i) declare or pay or set
aside for payment any dividends (other than a dividend in common stock,
$5.00 par value, of the Company (the "Common Stock") or in any other stock
ranking junior to the 9% Preferred Stock as to dividends and upon
liquidation, dissolution or winding up of the Company) or make any other
distribution on the Common Stock or any other stock of the Company ranking
junior to or on a parity with shares of the 9% Preferred Stock, with
respect to the payment of dividends or distribution of assets upon
liquidation, dissolution or winding up of the Company, or (ii) make any
payment on account of the purchase, redemption or other retirement of, or
pay or make available any moneys for a sinking fund for the redemption of,
any shares of Common Stock or such other junior or parity stock except by
conversion into or exchange for stock of the Company ranking junior to the
9% Preferred Stock as to dividends and upon liquidation.
(d) Any dividend payment made on shares of the 9% Preferred Stock
shall first be credited against the earliest accumulated but unpaid
dividend due with respect to such shares.
3. REDEMPTION.
3.1 REDEMPTION PRICES AND DATES. The shares of the 9% Preferred
Stock shall not be redeemable prior to May 29, 1997. On or after May 29,
1997, the Company, at its option, may redeem the shares of the 9% Preferred
Stock as a whole or from time to time in part, at a redemption price of
$200.00 per share, plus, in each case, all accrued and unpaid dividends
thereon (whether or not earned or declared) to the date fixed for
redemption.
3.2 RESTRICTIONS. Notwithstanding the foregoing, if full cumulative
dividends on all outstanding shares of 9% Preferred Stock have not been
paid or contemporaneously declared and paid for all past dividend periods,
no shares of 9% Preferred Stock shall be redeemed pursuant to this Section
3 unless all outstanding shares of 9% Preferred Stock are simultaneously
redeemed, and, unless the full cumulative dividends on all outstanding
shares of 9% Preferred Stock and any other Preferred Stock ranking on a
parity therewith as to dividends and upon liquidation shall have been paid
or contemporaneously are declared and paid for all past dividend periods,
the Company shall not purchase or otherwise acquire any shares of 9%
Preferred Stock or shares of any other series of Preferred Stock ranking on
a parity therewith as to dividends and upon liquidation (except by
conversion into or exchange for shares of the Company ranking junior to the
shares of the 9% Preferred Stock); provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of the 9% Preferred
Stock or of shares of such other series of Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of the 9% Preferred Stock or of such other series.
3.3 PRO RATA REDEMPTION. In the event that fewer than all the
outstanding shares of the 9% Preferred Stock are to be redeemed, the number
of shares to be redeemed shall be determined by the Board of Directors or a
duly authorized committee thereof and the shares to be
<PAGE>
redeemed shall be redeemed pro rata from the holders of record of such
shares in proportion to the number of such shares held by such holders
(with adjustments to avoid fractional shares).
3.4 NOTICE. In the event the Company shall redeem shares of the 9%
Preferred Stock, notice of such redemption (a "Notice of Redemption") shall
be given by first class mail, postage prepaid, mailed not less than 40 nor
more than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears on
the stock register of the Company. Each such Notice of Redemption shall
state: (i) the redemption date; (ii) the number of shares of the 9%
Preferred Stock to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (iii) the redemption price (specifying the amount of
accrued and unpaid dividends to be included therein); (iv) the place or
places where certificates for such shares are to be surrendered for payment
of the redemption price; (v) that dividends on the shares to be redeemed
will cease to accumulate on such redemption date; and (vi) the provision
hereunder pursuant to which such redemption is being made.
3.5 CESSATION OF DIVIDENDS. If a Notice of Redemption has been
given, from and after the redemption date for the shares of the 9%
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 plus an amount equal to full cumulative
dividends thereon (whether or not earned or declared) to the date fixed for
redemption) dividends on the shares of the 9% Preferred Stock so called for
redemption shall cease to accrue and said shares shall no longer be deemed
to be outstanding, and all rights of the holders thereof as stockholders of
the Company (except the right to receive the redemption price plus an
amount equal to such accumulated and unpaid dividends) shall cease. Upon
surrender in accordance with said Notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer, if the Board of
Directors of the Company shall so require and the Notice shall so state),
the redemption price set forth above plus an amount equal to such
accumulated and unpaid dividends shall be paid by the paying agent for the
Company. In the case that fewer than all of the shares represented by any
such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
3.6 STATUS OF REDEEMED SHARES. Shares of 9% Preferred Stock which
have been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without designation as
to series, until such shares are once more designated as part of a
particular series by or on behalf of the Board of Directors.
4. LIQUIDATION RIGHTS.
4.1 PAYMENT UPON LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Company, the holders of outstanding shares of the 9% Preferred Stock shall
be entitled, before any payment or distribution shall be made on the Common
Stock or any other class of stock ranking junior to the 9% Preferred Stock
upon liquidation, to be paid in full an amount equal to $200.00 per share,
plus an amount equal to all accumulated and unpaid dividends (whether or
not earned or declared). After payment of the
<PAGE>
full amount of such liquidation distribution, the holders of the 9%
Preferred Stock shall not be entitled to any further participation in any
distribution of assets of the Company.
4.2 INSUFFICIENT ASSETS. If, upon any liquidation, dissolution or
winding up of the Company, the assets of the Company, or proceeds thereof,
distributable among the holders of the shares of the 9% Preferred Stock and
the holders of shares of all other stock of the Company ranking, as to
liquidation, dissolution or winding up, on a parity with the 9% Preferred
Stock, shall be insufficient to pay in full the preferential amount set
forth in Section 4.1 and liquidating payments on all such other stock
ranking, as to liquidation, dissolution or winding up, on a parity with the
9% Preferred Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of the 9% Preferred Stock and all such other
stock ratably in accordance with the respective amounts which would be
payable on such shares of the 9% Preferred Stock and any such other stock
if all amounts payable thereon were paid in full (which, in the case of
such other stock, may include accumulated dividends).
4.3 PAYMENTS ON STOCK RANKING JUNIOR. In the event of any such
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, unless and until payment in full is made to the holders of all
outstanding shares of the 9% Preferred Stock of the liquidation
distribution to which they are entitled pursuant to Section 4.1, no
dividend or other distribution shall be made to the holders of the Common
Stock or any other class of stock ranking upon liquidation junior to the
shares of the 9% Preferred Stock and no purchase, redemption or other
acquisition for any consideration by the Company shall be made in respect
of the shares of the Common Stock or such other class of stock.
4.4 DEFINITION. Neither the consolidation nor merger of the Company
into or with another corporation or corporations shall be deemed to be a
liquidation, dissolution or winding up of the Company within the meaning of
this Section 4.
5. VOTING RIGHTS.
5.1 GENERALLY. Holders of the 9% Preferred Stock shall not have any
voting rights except as hereinafter provided or as otherwise from time to
time required by law. If at the time of any annual meeting of stockholders
for the election of directors of the Company a default in preference
dividends shall exist on the 9% Preferred Stock, or any series of Preferred
Stock ranking on a parity with the 9% Preferred Stock as to dividends or
upon liquidation (the 9% Preferred Stock and any such series of Preferred
Stock being herein referred to as the "Parity Preferred Stock"), the
maximum authorized number of members of the Board of Directors shall
automatically be increased by two. The two vacancies so created shall be
filled at such meeting by the vote of the holders of the 9% Preferred Stock
and the holders of any other Parity Preferred Stock upon which like voting
rights have been conferred and are then exercisable (the Preferred Stock
and such other Parity Preferred Stock being herein referred to as "Voting
Parity Preferred Stock"), voting together as a single class without regard
to series, to the exclusion of the holders of the Common Stock and any
other class of capital stock of the Company that is not Voting Parity
Preferred Stock. The holders of the Common Stock and any other class of
capital stock of the Company which has the right to vote at such meeting
(other than the Voting Parity Preferred
<PAGE>
Stock) shall elect the remaining directors. Such right of the holders of
the Voting Parity Preferred Stock shall continue until there are no
preference dividends in arrears upon the Voting Parity Preferred Stock of
any series at which time such right shall terminate, except as by law
expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned. Upon any such
termination of the right of the holders of shares of Voting Parity
Preferred Stock as a class to vote for directors as herein provided, the
term of office of each director then in office elected by such holders
voting as a class (herein called a "Preferred Director") shall terminate
immediately. Any Preferred Director may be removed by, and shall not be
removed without cause except by, the vote of the holders of record of the
outstanding shares of Voting Parity Preferred Stock, voting together as a
single class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Voting Parity Preferred Stock, called for such
purpose. So long as a default in any preference dividends on the Voting
Parity Preferred Stock of any series shall exist, (A) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (B)) by the person appointed by an instrument in writing
signed by the remaining Preferred Director and filed with the Company and
(B) in the case of the removal of any Preferred Director, the vacancy may
be filled by the person elected by the vote of the holders of outstanding
shares of Voting Parity Preferred Stock, voting together as a single class
without regard to series, at the same meeting at which such removal shall
be voted or at any subsequent meeting. Each director appointed as
aforesaid by the remaining Preferred Director shall be deemed to be a
Preferred Director. Whenever a default in preference dividends on the
Voting Parity Preferred Stock shall no longer exist: (i) the term of
office of the Preferred Directors shall end, (ii) the special voting powers
vested in the holders of the Voting Parity Preferred Stock as provided in
this resolution shall expire, and (iii) the number of members of the Board
of Directors shall be such number as may be provided for in the Company's
By-Laws irrespective of any increase made as provided in this resolution. A
"default in preference dividends" on the Voting Parity Preferred Stock of
any series shall be deemed to have occurred whenever the amount of unpaid
accrued dividends upon such series through the last preceding dividend
period therefor shall be equivalent to six quarterly dividends (which, with
respect to the 9% Preferred Stock, shall be deemed to be dividends in
respect of a number of dividend periods containing not less than 540 days)
or more, and having so occurred, such default shall be deemed to exist
thereafter until, but only until, full cumulative dividends on all shares
of Voting Parity Preferred Stock of each and every series then outstanding
shall have been paid to the end of the last preceding dividend period.
5.2 RANKING. So long as any shares of 9% Preferred Stock remain
outstanding, the Company shall not, without the affirmative vote or consent
of the holders of at least two-thirds of the shares of the 9% Preferred
Stock outstanding at the time, given in person or by proxy, either in
writing or at a meeting (voting separately as a class together with all
other series of Parity Preferred Stock), (i) authorize, create or issue, or
increase the authorized or issued amount of, any class or series of stock
ranking prior to the 9% Preferred Stock with respect to payment of
dividends or the distribution of assets on liquidation, or reclassify any
authorized stock of the Company into any such shares, or create, authorize
or issue any obligation or security convertible into or evidencing the
right to purchase any such shares; or (ii) amend, alter or repeal the
provisions of the Company's Restated Certificate of Incorporation or of the
resolution contained in the certificate of designation for the 9% Preferred
Stock, whether by merger, consolidation or
<PAGE>
otherwise, so as to materially and adversely affect any right, preference,
privilege or voting power of the 9% Preferred Stock or the holders thereof;
provided, however, that any increase in the amount of the authorized
Preferred Stock or the creation or issuance of other series of Preferred
Stock, or any increase in the amount of authorized shares of such series or
of any other series of Preferred Stock, in each case ranking on a parity
with or junior to the 9% Preferred Stock shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers.
5.3 APPLICABILITY. The foregoing voting provisions will not apply
if, at or prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding shares of
the 9% Preferred Stock shall have been redeemed or called for redemption
and sufficient funds shall have been deposited in trust to effect such
redemption.
6. CONVERSION OR EXCHANGE. The holders of shares of the 9%
Preferred Stock shall not have any right herein to convert such shares into
or exchange such shares for shares of any other class or classes or of any
other series of any class or classes of capital stock of the Company.
7. RANKING. The 9% Preferred Stock shall rank on a parity as to
dividends and liquidation with each series of Preferred Stock outstanding
on the date of issuance of the 9% Preferred Stock.
IN WITNESS WHEREOF, Wells Fargo & Company has caused this Certificate to be
executed by its officers thereunto duly authorized as of this 26th day of
February 1996.
/s/ WILLIAM F. ZUENDT
-------------------------
William F. Zuendt
President
Attest:
/s/GUY ROUNSAVILLE, JR.
----------------------------
Guy Rounsaville, Jr.
Secretary
<TABLE> <S> <C>
<PAGE>
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM THE FIRST INTERSTATE
BANCORP FINANCIAL STATEMENTS AND NOTES THERETO AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
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