<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-A
FOR REGISTRATION OF SECURITIES OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
WELLS FARGO & COMPANY
(Exact name of registrant as specified in charter)
DELAWARE 13-2553920
- ---------------------------------------- -------------------------------
(State of incorporation or organization) (IRS Employer
Identification No.)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94103
- ---------------------------------------- -------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (415) 477-1000
-------------------------
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- -------------------------------
8,000,000 Depositary Shares each
representing a one-eighth interest in one
share of 9 7/8% Preferred Stock, Series F New York Stock Exchange
- ------------------------------------------ -------------------------------
6,000,000 Depositary Shares each
representing a one-eighth interest in one
share of 9% Preferred Stock, Series G New York Stock Exchange
- ------------------------------------------ -------------------------------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Not Applicable
- -------------------------------------------------------------------------------
(Title of Class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
A description of the registrant's securities to be registered
hereunder appears under the combined subheadings "New Wells Fargo Preferred
Stock," "New Wells Fargo 9 7/8% Preferred Stock," "New Wells Fargo 9.0%
Preferred Stock" and "New Wells Fargo Depositary Shares" at pages 90 to 100 in
the Joint Proxy Statement/Prospectus included as Exhibit 99 hereto and is
incorporated herein by this reference.
ITEM 2. EXHIBITS
EX-3.(i).(a) Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3(a) of the registrant's Form 10-K
filed March 21, 1994).
EX-3.(i).(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 Adjustable Rate Cumulative
Preferred Stock, Series B (incorporated by reference to
Exhibit 3(c) of the registrant's Form 10-K filed
March 21, 1994).
EX-3.(i).(c) Certificate of the Voting Powers, Designation,
Preferences and Relative, Participating, Optional or
Other Special Rights, and the Qualifications,
Limitations or Restrictions Thereof, Which Have Note
Been Set Forth in the Certificate of Incorporation or in
any Amendment Thereto of the 9% Preferred Stock,
Series C (incorporated by reference to Exhibit 3 of the
registrant's Form 8-K filed October 24, 1991).
EX-3.(i).(d) 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 8 7/8% Preferred Stock,
Series D (incorporated by reference to Exhibit 3 of the
registrant's Form 8-K filed March 5, 1992).
EX-3.(i).(e) Form of 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.
EX-3.(i).(f) Form of 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.
EX-3.(ii) By-laws, as amended April 18, 1995, of the registrant.
EX-4.(i) Deposit Agreement, dated as of November 14, 1991,
between First Interstate Bancorp and First Interstate
Bank of California, as successor depositary to First
Interstate Bank, Ltd., relating to First Interstate
Bancorp's 9 7/8% Preferred Stock, Series F (incorporated
by reference to Exhibit 2(a) to First Interstate's
Registration Statement on Form 8-A dated November 7,
1991, as amended by Amendment No. 1 to Form 8-A dated
November 11, 1991).
2.
<PAGE>
Upon the effectiveness of the proposed merger of First
Interstate Bancorp with and into the registrant, as
further described in the Joint Proxy
Statement/Prospectus included as Exhibit 99 hereto, the
registrant will succeed to the rights and obligations of
First Interstate Bancorp under the Deposit Agreement.
EX-4.(ii) Deposit Agreement, dated as of May 29, 1992, between
First Interstate Bancorp and First Interstate Bank of
California, as successor depositary to First Interstate
Bank, Ltd., relating to First Interstate Bancorp's 9%
Preferred Stock, Series G (incorporated by reference to
Exhibit 2(a) to First Interstate's Registration
Statement on Form 8-A dated May 22, 1992). Upon the
effectiveness of the proposed merger of First Interstate
Bancorp with and into the registrant, as further
described in the Joint Proxy Statement/Prospectus
included as Exhibit 99 hereto, the registrant will
succeed to the rights and obligations of First
Interstate Bancorp under the Deposit Agreement.
EX-4.(iii) Form of stock certificate evidencing the registrant's
9 7/8% Preferred Stock, Series F.
EX-4.(iv) Form of stock certificate evidencing the registrant's 9%
Preferred Stock, Series G.
EX-4.(v) Form of depositary receipt evidencing depositary shares
of the registrant's 9 7/8% Preferred Stock, Series F.
EX-4.(vi) Form of depositary receipt evidencing depositary shares
of the registrant's 9% Preferred Stock, Series G.
EX-99 Joint Proxy Statement of the registrant and First
Interstate Bancorp and Prospectus of the registrant
dated February 27, 1996 (the "Joint Proxy
Statement/Prospectus") (incorporated by reference to
Amendment No. 4 to the registrant's Registration
Statement on Form S-4 filed February 27, 1996
(File No. 33-64575)).
3.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
WELLS FARGO & COMPANY
By: /s/ Guy Rounsaville, Jr.
---------------------------------------
Executive Vice President
and Secretary
Dated: March 19, 1996
4.
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
EX-3.(i).(a) Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3(a) of the registrant's Form 10-K filed March 21,
1994).
EX-3.(i).(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 Adjustable Rate Cumulative Preferred
Stock, Series B (incorporated by reference to Exhibit 3(c) of the
registrant's Form 10-K filed March 21, 1994).
EX-3.(i).(c) Certificate of the Voting Powers, Designation, Preferences and
Relative, Participating, Optional or Other Special Rights, and the
Qualifications, Limitations or Restrictions Thereof, Which Have
Note Been Set Forth in the Certificate of Incorporation or in any
Amendment Thereto of the 9% Preferred Stock, Series C
(incorporated by reference to Exhibit 3 of the registrant's
Form 8-K filed October 24, 1991).
EX-3.(i).(d) 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 8 7/8% Preferred Stock, Series D
(incorporated by reference to Exhibit 3 of the registrant's
Form 8-K filed March 5, 1992).
EX-3.(i).(e) Form of 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.
EX-3.(i).(f) Form of 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.
EX-3.(ii) By-laws, as amended April 18, 1995, of the registrant.
EX-4.(i) Deposit Agreement, dated as of November 14, 1991, between First
Interstate Bancorp and First Interstate Bank of California, as
successor depositary to First Interstate Bank, Ltd., relating to
First Interstate Bancorp's 9 7/8% Preferred Stock, Series F
(incorporated by reference to Exhibit 2(a) to First Interstate's
Registration Statement on Form 8-A dated November 7, 1991, as
amended by Amendment No. 1 to Form 8-A dated November 11, 1991).
Upon the effectiveness of the proposed merger of First Interstate
Bancorp with and into the registrant, as further described in the
Joint Proxy Statement/Prospectus included as Exhibit 99 hereto,
the registrant will succeed to the rights and obligations of First
Interstate Bancorp under the Deposit Agreement.
5.
<PAGE>
Exhibit
Number Exhibit
- ------- -------
EX-4.(ii) Deposit Agreement, dated as of May 29, 1992, between First
Interstate Bancorp and First Interstate Bank of California, as
successor depositary to First Interstate Bank, Ltd., relating to
First Interstate Bancorp's 9% Preferred Stock, Series G
(incorporated by reference to Exhibit 2(a) to First Interstate's
Registration Statement on Form 8-A dated May 22, 1992). Upon the
effectiveness of the proposed merger of First Interstate Bancorp
with and into the registrant, as further described in the Joint
Proxy Statement/Prospectus included as Exhibit 99 hereto, the
registrant will succeed to the rights and obligations of First
Interstate Bancorp under the Deposit Agreement.
EX-4.(iii) Form of stock certificate evidencing the registrant's 9 7/8%
Preferred Stock, Series F.
EX-4.(iv) Form of stock certificate evidencing the registrant's 9% Preferred
Stock, Series G.
EX-4.(v) Form of depositary receipt evidencing depositary shares of the
registrant's 9 7/8% Preferred Stock, Series F.
EX-4.(vi) Form of depositary receipt evidencing depositary shares of the
registrant's 9% Preferred Stock, Series G.
EX-99 Joint Proxy Statement of the registrant and First Interstate
Bancorp and Prospectus of the registrant dated February 27, 1996
(the "Joint Proxy Statement/Prospectus") (incorporated by
reference to Amendment No. 4 to the registrant's Registration
Statement on Form S-4 filed February 27, 1996
(File No. 33-64575)).
6.
<PAGE>
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 __, 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
1.
<PAGE>
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.
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 1, 1996, 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.
<PAGE>
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 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.
3.
<PAGE>
(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
4.
<PAGE>
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 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
5.
<PAGE>
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.
4. LIQUIDATION RIGHTS.
6.
<PAGE>
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.
7.
<PAGE>
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 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
8.
<PAGE>
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
9.
<PAGE>
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-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
10.
<PAGE>
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 __ day of February 1996.
______________________________
William F. Zuendt
President
Attest:
________________________________
Guy Rounsaville, Jr.
Secretary
11.
<PAGE>
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 __, 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
1.
<PAGE>
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 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
1, 1996, 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.
2.
<PAGE>
(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.
(c) Except as provided in this Section 2.3, if full
cumulative dividends on all outstanding shares of the 9%
3.
<PAGE>
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
4.
<PAGE>
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 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
5.
<PAGE>
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
6.
<PAGE>
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 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.
7.
<PAGE>
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 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
8.
<PAGE>
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
9.
<PAGE>
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 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
10.
<PAGE>
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 __ day of February 1996.
_______________________________
William F. Zuendt
President
Attest:
_______________________________
Guy Rounsaville, Jr.
Secretary
11.
<PAGE>
By-Laws
of
WELLS FARGO & COMPANY
(a Delaware corporation),
As amended April 18, 1995
______________
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meeting of
stockholders of Wells Fargo & Company (the "corporation") shall
be held on the third Tuesday of April in each year at such time
of day as may be fixed by the Board of Directors, at the
principal office of the corporation, if not a bank holiday, and
if a bank holiday then on the next succeeding business day at the
same hour and place, or at such other time, date or place, within
or without the State of Delaware, as may be determined by the
Board of Directors. At such meeting, Directors shall be elected,
reports of the affairs of the corporation may be considered, and
any other proper business may be transacted.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
stockholders, unless otherwise regulated by statute, for any
purpose or purposes whatsoever, may be called at any time by the
Board of Directors, the Chairman of the Board, the President, the
Chief Executive Officer (if other than the Chairman of the Board
or the President), or one or more stockholders holding not less
than 10 percent of the voting power of the corporation. Such
meetings may be held at any place within or without the State of
Delaware designated by the Board of Directors of the corporation.
SECTION 3. NOTICE OF MEETINGS. Notice of all meetings
of the stockholders, both annual and special, shall be given by
the Secretary in writing to stockholders entitled to vote. A
notice may be given either personally or by mail or other means
of written communication, charges prepaid, addressed to any
stockholder at his address appearing on the books of the
corporation or at the address given by such stockholder to the
corporation for the purpose of notice. Notice of any meeting of
stockholders shall be sent to each stockholder entitled thereto
not less than 10 nor more than 60 days prior to such meeting.
Such notice shall state the place, date and hour of the meeting
-1-
<PAGE>
and shall also state (i) in the case of a special meeting, the
general nature of the business to be transacted and that no other
business may be transacted, (ii) in the case of an annual
meeting, those matters which the Board of Directors intends at
the time of the mailing of the notice to present for stockholder
action and that any other proper matter may be presented for
stockholder action to the meeting, and (iii) in the case of any
meeting at which Directors are to be elected, the names of the
nominees which the management intends at the time of the mailing
of the notice to present for election.
SECTION 4. QUORUM. Except as otherwise provided by
law, the presence of the holders of a majority of the stock
issued and outstanding present in person or represented by proxy
and entitled to vote is requisite and shall constitute a quorum
for the transaction of business at all meetings of the
stockholders, and the vote of a majority of such stock present
and voting at a duly held meeting at which there is a quorum
present shall decide any question brought before such meeting.
SECTION 5. VOTING. Unless otherwise provided in the
Certificate of Incorporation, every stockholder shall be entitled
to one vote for every share of stock standing in his name on the
books of the corporation, and may vote either in person or by
proxy.
ARTICLE II
DIRECTORS
SECTION 1. NUMBER, TERM. The property, business and
affairs of the corporation shall be managed and all corporate
power shall be exercised by or under the direction of the Board
of Directors as from time to time constituted. The number of
Directors of this corporation shall be not less than 10 nor more
than 20, the exact number within the limits so specified to be
fixed from time to time by a By-Law adopted by the stockholders
or by the Board of Directors. Until some other number is so
fixed, the number of Directors shall be 14. The term of office
of each Director shall be from the time of his election until the
annual meeting next succeeding his election and until his
successor shall have been duly elected, or until his death,
resignation or lawful removal pursuant to the provisions of the
General Corporation Law of Delaware.
SECTION 2. POWERS. In addition to the powers expressly
conferred by these By-Laws, the Board of Directors may exercise
all corporate powers and do such lawful acts and things as are
-2-
<PAGE>
not by statute or by the Certificate of Incorporation or by these
By-Laws required to be exercised or approved by the stockholders.
SECTION 3. COMPENSATION. Directors and Advisory
Directors (as provided in Section 12 of this Article) as such may
receive such compensation, if any, as the Board of Directors by
resolution may direct, including salary or a fixed sum plus
expenses, if any, for attendance at meetings of the Board of
Directors or of its committees.
SECTION 4. ORGANIZATIONAL MEETING. An organizational
meeting of the Board of Directors shall be held each year on the
day of the annual meeting of stockholders of the corporation for
the purpose of electing officers, the members of the Formal
Committees provided in Section 11 of this Article and the
Advisory Directors provided in Section 12 of this Article, and
for the transaction of any other business. Said organizational
meeting shall be held without any notice other than this By-Law.
SECTION 5. PLACE OF MEETINGS. The Board of Directors
shall hold its meetings at the main office of the corporation or
at such other place as may from time to time be designated by the
Board of Directors or by the chief executive officer.
SECTION 6. REGULAR MEETINGS. Regular meetings of the
Board of Directors will be held on the third Tuesday of each
month (except for the months of August and December) at the later
of the following times: (i) 10:30 a.m. or (ii) immediately
following the adjournment of any regular meeting of the Board of
Directors of Wells Fargo Bank, National Association, held on the
same day. If the day of any regular meeting shall fall upon a
bank holiday, the meeting shall be held at the same hour on the
first day following which is not a bank holiday. No call or
notice of a regular meeting need be given unless the meeting is
to be held at a place other than the main office of the
corporation.
SECTION 7. SPECIAL MEETINGS. Special meetings shall be
held when called by the chief executive officer or at the written
request of four Directors.
SECTION 8. QUORUM; ADJOURNED MEETINGS. A majority of
the authorized number of Directors shall constitute a quorum for
the transaction of business. A majority of the Directors
present, whether or not a quorum, may adjourn any meeting to
another time and place, provided that, if the meeting is
adjourned for more than 30 days, notice of the adjournment shall
be given in accordance with these By-Laws.
-3-
<PAGE>
SECTION 9. NOTICE, WAIVERS OF NOTICE. Notice of
special meetings and notice of regular meetings held at a place
other than the head office of the corporation shall be given to
each Director, and notice of the adjournment of a meeting
adjourned for more than 30 days shall be given prior to the
adjourned meeting to all Directors not present at the time of the
adjournment. No such notice need specify the purpose of the
meeting. Such notice shall be given four days prior to the
meeting if given by mail or on the day preceding the day of the
meeting if delivered personally or by telephone, facsimile, telex
or telegram. Such notice shall be addressed or delivered to each
Director at such Director's address as shown upon the records of
the corporation or as may have been given to the corporation by
the Director for the purposes of notice. Notice need not be
given to any Director who signs a waiver of notice (whether
before or after the meeting) or who attends the meeting without
protesting the lack of notice prior to its commencement. All
such waivers shall be filed with and made a part of the minutes
of the meeting.
SECTION 10. TELEPHONIC MEETINGS. A meeting of the
Board of Directors or of any Committee thereof may be held
through the use of conference telephone or similar communications
equipment, so long as all members participating in such meeting
can hear one another. Participation in such a meeting shall
constitute presence at such meeting.
SECTION 11. WRITTEN CONSENTS. Any action required or
permitted to be taken by the Board of Directors may be taken
without a meeting, if all members of the Board of Directors shall
individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes
of the proceedings of the Board of Directors. Such action by
written consent shall have the same force and effect as the
unanimous vote of the Directors.
SECTION 12. RESIGNATIONS. Any Director may resign his
position as such at any time by giving written notice to the
Chairman of the Board, the President, the Secretary or the Board
of Directors. Such resignation shall take effect as of the time
such notice is given or as of any later time specified therein
and the acceptance thereof shall not be necessary to make it
effective.
SECTION 13. VACANCIES. Vacancies in the membership of
the Board of Directors shall be deemed to exist (i) in case of
the death, resignation or removal of any Director, (ii) if the
authorized number of Directors is increased, or (iii) if the
stockholders fail, at a meeting of stockholders at which
Directors are elected, to elect the full authorized number of
-4-
<PAGE>
Directors to be elected at that meeting. Vacancies in the
membership of the Board of Directors may be filled by a majority
of the remaining Directors, though less than a quorum, or by a
sole remaining Director, and each Director so elected shall hold
office until his successor is elected at an annual or a special
meeting of the stockholders. The stockholders may elect a
Director at any time to fill any vacancy not filled by the
Directors.
SECTION 14. COMMITTEES OF THE BOARD OF DIRECTORS. By
resolution adopted by a majority of the authorized number of
Directors, the Board of Directors may designate one or more
Committees to act as or on behalf of the Board of Directors.
Each such Committee shall consist of one or more Directors
designated by the Board of Directors to serve on such Committee
at the pleasure of the Board of Directors. The Board of
Directors may designate one or more Directors as alternate
members of any Committee, which alternate members may replace any
absent member at any meeting of such Committee. In the absence
or disqualification of a member of a Committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or
disqualified member. Any Committee, to the extent provided in
the resolution of the Board of Directors, these By-Laws or the
Certificate of Incorporation, may have all the authority of the
Board of Directors, except with respect to: (i) amending the
Certificate of Incorporation (except that a Committee may, to the
extent authorized in the resolution or resolutions providing for
the issuance of shares of stock adopted by the Board of Directors
as provided in Section 151(a) of the General Corporation Law of
Delaware, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of
stock of the corporation or fix the number of shares of any
series of stock or authorize the increase or decrease of the
shares of any series), (ii) adopting an agreement of merger or
consolidation under Section 251 or 252 of the General Corporation
Law of Delaware, (iii) recommending to the stockholders the sale,
lease or exchange of all or substantially all of the
corporation's property and assets, (iv) recommending to the
stockholders a dissolution of the corporation or a revocation of
a dissolution, or (v) amending these By-Laws.
Included among the Committees shall be the following:
-5-
<PAGE>
(a) EXECUTIVE COMMITTEE. There shall be an Executive
Committee consisting of its ex officio member and such additional
Directors, in no event less than seven, as the Board of Directors
may from time to time deem appropriate, elected by the Board of
Directors at its organizational meeting or otherwise. Subject to
such limitations as may from time to time be imposed by the Board
of Directors or as are imposed by these By-Laws, the Executive
Committee shall have the fullest authority to act for and on
behalf of the corporation, and it shall have all of the powers of
the Board of Directors which, under the law, it is possible for a
Board of Directors to delegate to such a committee, including the
supervision of the general management, direction and
superintendence of the business and affairs of the corporation
and the power to declare a dividend, to authorize the issuance of
stock or to adopt a certificate of ownership and merger pursuant
to Section 253 of the General Corporation Law of Delaware.
(b) COMMITTEE ON EXAMINATIONS AND AUDITS. There shall
be a Committee on Examinations and Audits consisting of not less
than three Directors who are not officers of the corporation and
who shall be elected by the Board of Directors at its
organizational meeting or otherwise. It shall be the duty of
this Committee (i) to make, or cause to be made, in accordance
with the procedures from time to time approved by the Board of
Directors, internal examinations and audits of the affairs of the
corporation and the affairs of any subsidiary which by resolution
of its board of directors has authorized the Committee on
Examinations and Audits to act hereunder, (ii) to make
recommendations to the Board of Directors of the corporation and
of each such subsidiary with respect to the selection of and
scope of work for the independent auditors for the corporation
and for each subsidiary, (iii) to review, or cause to be reviewed
in accordance with procedures from time to time approved by the
Board of Directors, all reports of internal examinations and
audits, all audit-related reports made by the independent
auditors for the corporation and each such subsidiary and all
reports of examination of the corporation and of any subsidiary
made by regulatory authorities, (iv) from time to time, to review
and discuss with the management, and independently with the
General Auditor, the Risk Control Officer and the independent
auditors, the accounting and reporting principles, policies and
practices employed by the corporation and its subsidiaries and
the adequacy of their accounting, financial, operating and
administrative controls, including the review and approval of any
policy statements relating thereto, and (v) to perform such other
duties as the Board of Directors may from time to time assign to
it. The Committee on Examinations and Audits shall submit
reports of its findings, conclusions and recommendations, if any,
to the Board of Directors.
-6-
<PAGE>
(c) MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE.
There shall be a Management Development and Compensation
Committee consisting of not less than six directors, who shall be
elected by the Board of Directors at its organizational meeting
or otherwise and none of whom shall be eligible to participate in
either the Wells Fargo & Company Stock Appreciation Rights Plan,
the Wells Fargo & Company Stock Option Plan the Wells Fargo &
Company Employee Stock Purchase Plan or any similar employee
stock plan (or shall have been so eligible within the year next
preceding the date of becoming a member of the Management
Development and Compensation Committee). It shall be the duty of
the Management Development and Compensation Committee, and it
shall have authority, (i) to advise the Chief Executive Officer
concerning the corporation's salary policies, (ii) to administer
such compensation programs as from time to time are delegated to
it by the Board of Directors, (iii) to accept or reject the
recommendations of the Chief Executive Officer with respect to
all salaries in excess of such dollar amount or of officers of
such grade or grades as the Board of Directors may from time to
time by resolution determine to be appropriate and (iv) upon the
request of any subsidiary which by resolution of its board of
directors has authorized the Management Development and
Compensation Committee to act hereunder, to advise its chief
executive officer concerning such subsidiary's salary policies
and compensation programs.
(d) NOMINATING COMMITTEE. There shall be a Nominating
Committee consisting of not less than three Directors, who shall
be elected by the Board of Directors at its organizational
meeting or otherwise. It shall be the duty of the Nominating
Committee, annually and in the event of vacancies on the Board of
Directors, to nominate candidates for election to the Board of
Directors.
The Chairman of the Board, or in the absence of the
Chairman of the Board, the acting chief executive officer, if a
Director, shall be an EX OFFICIO member of all the Committees
except the Committee on Examinations and Audits, the Management
and Development and Compensation Committee, the Nominating
Committee and such other Committees which by resolution the Board
of Directors expressly limit membership to non-officer Directors.
Each Committee member shall serve until the
organizational meeting of the Board of Directors held on the day
of the annual meeting of stockholders in the year next following
his or her election and until his or her successor shall have
been elected, but any such member may be removed at any time by
the Board of Directors. Vacancies in any of said committees,
however created, shall be filled by the Board of Directors. A
majority of the members of any such committee shall be necessary
-7-
<PAGE>
to constitute a quorum and sufficient for the transaction of
business, and any act of a majority present at a meeting of any
such committee at which there is a quorum present shall be the
act of such committee. Subject to these By-Laws and the
authority of the Board of Directors, each committee shall have
the power to determine the form of its organization. The
provisions of these By-Laws governing the calling, notice and
place of special meetings of the Board of Directors shall apply
to all meetings of any Committee unless such committee fixes a
time and place for regular meetings, in which case notice for
such meeting shall be unnecessary. The provisions of these
By-Laws regarding actions taken by the Board of Directors,
however called or noticed, shall apply to all meetings of any
Committee. Each committee shall cause to be kept a full and
complete record of its proceedings, which shall be available for
inspection by any Director. There shall be presented at each
meeting of the Board of Directors a summary of the minutes of all
proceedings of each committee since the preceding meeting of the
Board of Directors.
SECTION 15. ADVISORY DIRECTORS. There may be not more
than 10 Advisory Directors, who may be elected by the Board of
Directors at its organizational meeting. An Advisory Director
shall serve until the next following organizational meeting of
the Board of Directors. Any Advisory Director may be removed at
any time by the Board of Directors. Vacancies may, but need not
be, filled by the Board of Directors. Advisory Directors may
attend meetings of the Board of Directors and, if appointed
thereto as an advisor by the Board of Directors, meetings of
Formal Committees with the privilege of participating in all
discussions but without the right to vote.
SECTION 16. DIRECTORS EMERITI. There shall be not more
than ten (10) Directors Emeriti who shall be elected by the Board
of Directors at its organizational meeting. A Director Emeritus
shall serve until the next following organizational meeting of
the Board of Directors. No person may be elected a Director
Emeritus unless at some time prior thereto such person has been a
Director of the corporation. Any Director Emeritus may be
removed at any time by the Board of Directors. Vacancies,
however created, may, but need not, be filled by the Board of
Directors. Directors Emeriti may attend meetings of the Board of
Directors and, if appointed thereto as an advisor by the Board of
Directors, meetings of Committees with the privilege of
participating in all discussions but without the right to vote.
ARTICLE III
-8-
<PAGE>
OFFICERS
SECTION 1. ELECTION OF EXECUTIVE OFFICERS. The
corporation shall have (i) a Chairman of the Board, (ii) a
President, (iii) a Secretary and (iv) a Chief Financial Officer.
The Corporation also may have a Vice Chairman of the Board, one
or more Vice Chairmen, one or more Executive Vice Presidents, one
or more Senior Vice Presidents, one or more Vice Presidents, a
Controller, a Treasurer, one or more Assistant Vice Presidents,
one or more Assistant Treasurers, one or more Assistant
Secretaries, a General Auditor, a Risk Control Officer, and such
other officers as the Board of Directors, or the Chief Executive
Officer or any officer or committee whom he may authorize to
perform this duty, may from time to time deem necessary or
expedient for the proper conduct of business by the corporation.
The Chairman of the Board, the Vice Chairman of the Board, if
any, and the President shall be elected from among the members of
the Board of Directors. The following offices shall be filled
only pursuant to election by the Board of Directors: Chairman of
the Board, Vice Chairman of the Board, President, Vice Chairman,
Executive Vice President, Senior Vice President, Secretary,
Controller, Treasurer, General Auditor and Risk Control Officer.
Other officers may be appointed by the Chief Executive Officer or
by any officer or committee whom he may authorize to perform this
duty. All officers shall hold office at will, at the pleasure of
the Board of Directors, the Chief Executive Officer, the officer
or committee having the authority to appoint such officers, and
the officer or committee authorized by the Chief Executive
Officer to remove such officers, and may be removed at any time,
with or without notice and with or without cause. No
authorization by the Chief Executive Officer to perform such duty
of appointment or removal shall be effective unless done in
writing and signed by the Chief Executive Officer. Two or more
offices may be held by the same person.
SECTION 2. CHAIRMAN OF THE BOARD. The Chairman of the
Board shall, when present, preside at all meetings of the
stockholders and of the Board of Directors and shall be the Chief
Executive Officer of the corporation. As Chief Executive
Officer, he shall (i) exercise, and be responsible to the Board
of Directors for, the general supervision of the property,
affairs and business of the corporation, (ii) report at each
meeting of the Board of Directors upon all matters within his
knowledge which the interests of the corporation may require to
be brought to its notice, (iii) prescribe, or to the extent he
may deem appropriate designate an officer or committee to
prescribe, the duties, authority and signing power of all other
officers and employees of the corporation and (iv) exercise,
subject to these By-Laws, such other powers and perform such
-9-
<PAGE>
other duties as may from time to time be prescribed by the Board
of Directors.
SECTION 3. VICE CHAIRMAN OF THE BOARD. The Vice
Chairman of the Board shall, subject to these By-Laws, exercise
such powers and perform such duties as may from time to time be
prescribed by the Board of Directors. In the absence of the
Chairman of the Board and the President, the Vice Chairman of the
Board shall preside over the meetings of the stockholders and the
Board of Directors.
SECTION 4. PRESIDENT. The President shall, subject to
these By-Laws, be the chief operating officer of the corporation
and shall exercise such other powers and perform such other
duties as may from time to time be prescribed by the Board of
Directors. In the absence of the Chairman of the Board, the
President shall preside over the meetings of the stockholders and
the Board of Directors.
SECTION 5. ABSENCE OR DISABILITY OF CHIEF EXECUTIVE
OFFICER. In the absence or disability of the Chairman of the
Board, the President shall act as Chief Executive Officer. In
the absence or the disability of both the Chairman of the Board
and the President, the Vice Chairman of the Board shall act as
Chief Executive Officer. In the absence of the Chairman of the
Board, the President and the Vice Chairman of the Board, the
officer designated by the Board of Directors, or if there be no
such designation the officer designated by the Chairman of the
Board, shall act as Chief Executive Officer. The Chairman of the
Board shall at all times have on file with the Secretary his
written designation of the officer from time to time so
designated by him to act as Chief Executive Officer in his
absence or disability and in the absence or disability of the
President and the Vice Chairman of the Board.
SECTION 6. EXECUTIVE VICE PRESIDENTS; SENIOR VICE
PRESIDENTS; VICE PRESIDENTS. The Executive Vice Presidents, the
Senior Vice Presidents and the Vice Presidents shall have all
such powers and duties as may be prescribed by the Board of
Directors or by the Chief Executive Officer.
SECTION 7. SECRETARY. The Secretary shall keep a full
and accurate record of all meetings of the stockholders and of
the Board of Directors, and shall have the custody of all books
and papers belonging to the corporation which are located in its
principal office. He shall give, or cause to be given, notice of
all meetings of the stockholders and of the Board of Directors,
and all other notices required by law or by these By-Laws. He
shall be the custodian of the corporate seal or seals. In
general, he shall perform all duties ordinarily incident to the
-10-
<PAGE>
office of a secretary of a corporation, and such other duties as
from time to time may be assigned to him by the Board of
Directors or the Chief Executive Officer.
SECTION 8. CHIEF FINANCIAL OFFICER. The Chief
Financial Officer shall have charge of and be responsible for all
funds, securities, receipts and disbursements of the corporation,
and shall deposit, or cause to be deposited, in the name of the
corporation all moneys or other valuable effects in such banks,
trust companies, or other depositories as shall from time to time
be selected by the Board of Directors. He shall render to the
Chief Executive Officer and the Board of Directors, whenever
requested, an account of the financial condition of the
corporation. In general, he shall perform all duties ordinarily
incident to the office of a chief financial officer of a
corporation, and such other duties as may be assigned to him by
the Board of Directors or the Chief Executive Officer.
SECTION 9. GENERAL AUDITOR. The General Auditor shall
be responsible to the Board of Directors for evaluating the
ongoing operation, and the adequacy, effectiveness and
efficiency, of the system of control within the corporation and
of each subsidiary which has authorized the Committee on
Examinations and Audits to act under Section 14(b) of Article II
of these By-Laws. He shall make, or cause to be made, such
internal audits and reports of the corporation and each such
subsidiary as may be required by the Board of Directors or by the
Committee on Examinations and Audits. He shall coordinate the
auditing work performed for the corporation and its subsidiaries
by public accounting firms and, in connection therewith, he shall
determine whether the internal auditing functions being performed
within the subsidiaries are adequate. He shall also perform such
other duties as the Chief Executive Officer may prescribe, and
shall report to the Chief Executive Officer on all matters
concerning the safety of the operations of the corporation and of
any subsidiary which he deems advisable or which the Chief
Executive Officer may request. Additionally, the General Auditor
shall have the duty of reporting independently of all officers of
the corporation to the Committee on Examinations and Audits at
least quarterly on all matters concerning the safety of the
operations of the corporation and its subsidiaries which should
be brought in such manner through such committee to the attention
of the Board of Directors. Should the General Auditor deem any
matter to be of especial immediate importance, he shall report
thereon forthwith through the Committee on Examinations and
Audits to the Board of Directors.
SECTION 10. RISK CONTROL OFFICER. The Risk Control
Officer shall report to the Board of Directors through its
Committee on Examinations and Audits. The Risk Control Officer
-11-
<PAGE>
shall be responsible for directing a number of control related
activities principally affecting the Company's credit function
and shall have such other duties and responsibilities as shall be
prescribed from time to time by the chief executive officer and
the Committee on Examinations and Audits. Should the Risk
Control Officer deem any matter to be of special importance, the
Risk Control Officer shall report thereon forthwith through the
Committee to the Board of Directors.
ARTICLE IV
INDEMNIFICATION
SECTION 1. ACTION, ETC. OTHER THAN BY OR IN THE RIGHT
OF THE CORPORATION. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding or
investigation, whether civil, criminal or administrative, and
whether external or internal to the corporation (other than a
judicial action or suit brought by or in the right of the
corporation), by reason of the fact that he or she is or was an
Agent (as hereinafter defined) against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Agent in connection with
such action, suit or proceeding, or any appeal therein, if the
Agent acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such conduct was
unlawful. The termination of any action, suit or proceeding --
whether by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent -- shall not, of
itself, create a presumption that the Agent did not act in good
faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, that the Agent
had reasonable cause to believe that his or her conduct was
unlawful. For purposes of this Article, an "Agent" shall be any
director, officer or employee of the corporation, or any person
who, being or having been such a director, officer or employee,
is or was serving at the request of the corporation as a
director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other
enterprise.
SECTION 2. ACTION, ETC. BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed judicial action or suit brought
-12-
<PAGE>
by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person is or was an
Agent (as defined above) against expenses (including attorneys'
fees) and amounts paid in settlement actually and reasonably
incurred by such person in connection with the defense,
settlement or appeal of such action or suit if he or she acted in
good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the corporation, except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
SECTION 3. DETERMINATION OF RIGHT OF INDEMNIFICATION OR
CONTRIBUTION. Unless otherwise ordered by a court, any
indemnification under Section 1 or 2, and any contribution under
Section 6, of this Article shall be made by the corporation to an
Agent unless a determination is reasonably and promptly made,
either (i) by the Board of Directors acting by a majority vote of
a quorum consisting of Directors who were not party to such
action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or if obtainable and such quorum so directs, by
independent legal counsel in a written opinion, or (iii) by the
stockholders, that such Agent acted in bad faith and in a manner
that such Agent did not believe to be in or not opposed to the
best interests of the corporation or, with respect to any
criminal proceeding, that such Agent believed or had reasonable
cause to believe that his or her conduct was unlawful.
SECTION 4. ADVANCES OF EXPENSES. Except as limited by
Section 5 of this Article, costs, charges and expenses (including
attorneys' fees) incurred by an Agent in defense of any action,
suit, proceeding or investigation of the nature referred to in
Section 1 or 2 of this Article or any appeal therefrom shall be
paid by the corporation in advance of the final disposition of
such matter; provided, however, that if the General Corporation
Law of Delaware then so requires, such payment shall be made only
if the Agent shall undertake to reimburse the corporation for
such payment in the event that it is ultimately determined, as
provided herein, that such person is not entitled to
indemnification.
SECTION 5. RIGHT OF AGENT TO INDEMNIFICATION OR ADVANCE
UPON APPLICATION; PROCEDURE UPON APPLICATION. Any
indemnification under Section 1 or 2, or advance under Section 4,
-13-
<PAGE>
of this Article shall be made promptly and in any event within 90
days, upon the written request of the Agent, unless with respect
to an application under said Sections 1 or 2 an adverse
determination is reasonably and promptly made pursuant to Section
3 of this Article or unless with respect to an application under
said Section 4 an adverse determination is made pursuant to said
Section 4. The right to indemnification or advances as granted
by this Article shall be enforceable by the Agent in any court of
competent jurisdiction if the Board of Directors or independent
legal counsel improperly denies the claim, in whole or in part,
or if no disposition of such claim is made within 90 days. It
shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
action, suit or proceeding in advance of its final disposition
where any required undertaking has been tendered to the
corporation) that the Agent has not met the standards of conduct
which would require the corporation to indemnify or advance the
amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation
(including the Board of Directors, independent legal counsel and
the stockholders) to have made a determination prior to the
commencement of such action that indemnification of the Agent is
proper in the circumstances because he or she has met the
applicable standard of conduct, nor an actual determination by
the corporation (including the Board of Directors, independent
legal counsel and the stockholders) that the Agent had not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that the Agent had not met the
applicable standard of conduct. The Agent's costs and expenses
incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the corporation.
SECTION 6. CONTRIBUTION. In the event that the
indemnification provided for in this Article is held by a court
of competent jurisdiction to be unavailable to an Agent in whole
or in part, then in respect of any threatened, pending or
completed action, suit or proceeding in which the corporation is
jointly liable with the Agent (or would be if joined in such
action, suit or proceeding), to the extent permitted by the
General Corporation Law of Delaware the corporation shall
contribute to the amount of expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by the Agent in such
proportion as is appropriate to reflect (i) the relative benefits
received by the corporation on the one hand and the Agent on the
other from the transaction from which such action, suit or
proceeding arose and (ii) the relative fault of the corporation
on the one hand and of the Agent on the other in connection with
the events which resulted in such expenses, judgments, fines or
-14-
<PAGE>
settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the corporation on the one
hand and of the Agent on the other shall be determined by
reference to, among other things, the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts.
SECTION 7. OTHER RIGHTS AND REMEDIES. Indemnification
under this Article shall be provided regardless of when the
events alleged to underlie any action, suit or proceeding may
have occurred, shall continue as to a person who has ceased to be
an Agent and shall inure to the benefit of the heirs, executors
and administrators of such a person. All rights to
indemnification and advancement of expenses under this Article
shall be deemed to be provided by a contract between the
corporation and the Agent who serves as such at any time while
these By-Laws and other relevant provisions of the General
Corporation Law of Delaware and other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect
any rights or obligations then existing.
SECTION 8. INSURANCE. Upon resolution passed by the
Board of Directors, the corporation may purchase and maintain
insurance on behalf of any person who is or was an Agent against
any liability asserted against such person and incurred by him or
her in any such capacity, or arising out of his or her status as
such, regardless of whether the corporation would have the power
to indemnify such person against such liability under the
provisions of this Article. The corporation may create a trust
fund, grant a security interest or use other means, including
without limitation a letter of credit, to ensure the payment of
such sums as may become necessary to effect indemnification as
provided herein.
SECTION 9. CONSTITUENT CORPORATIONS. For the purposes
of this Article, references to "the corporation" include all
constituent corporations (including any constituent of a
constituent) absorbed in a consolidation or merger as well as the
resulting or surviving corporation, so that any person who is or
was a director, officer or employee of such a constituent
corporation or who, being or having been such a director, officer
or employee, is or was serving at the request of such constituent
corporation as a director, officer, employee or trustee of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving
corporation as such person would if he or she had served the
resulting or surviving corporation in the same capacity.
-15-
<PAGE>
SECTION 10. OTHER ENTERPRISES, FINES, AND SERVING AT
CORPORATION'S REQUEST. For purposes of this Article, references
to "other enterprise" in Sections 1 and 9 shall include employee
benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service by an Agent as director,
officer, employee, trustee or agent of the corporation which
imposes duties on, or involves services by, such Agent with
respect to any employee benefit plan, its participants, or
beneficiaries. A person who acted in good faith and in a manner
he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interest of the corporation" for purposes of this Article.
SECTION 11. SAVINGS CLAUSE. If this Article or any
portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the corporation shall nevertheless
indemnify each Agent as to expenses (including attorneys' fees,
judgments, fines and amounts paid in settlement with respect to
any action, suit, appeal, proceeding or investigation, whether
civil, criminal or administrative, and whether internal or
external, including a grand jury proceeding and an action or suit
brought by or in the right of the corporation, to the full extent
permitted by the applicable portion of this Article that shall
not have been invalidated, or by any other applicable law.
SECTION 12. ACTIONS INITIATED BY AGENT. Anything to
the contrary in this Article notwithstanding, the corporation
shall indemnify any Agent in connection with an action, suit or
proceeding initiated by such Agent (other than actions, suits, or
proceedings commenced pursuant to Section 5 of this Article) only
if such action, suit or proceeding was authorized by the Board of
Directors.
SECTION 13. STATUTORY AND OTHER INDEMNIFICATION.
Notwithstanding any other provision of this Article, the
corporation shall indemnify any Agent and advance expenses
incurred by such Agent in any action, suit or proceeding of the
nature referred to in Section 1 or 2 of this Article to the
fullest extent permitted by the General Corporation Law of
Delaware, as the same may be amended from time to time, except
that no amount shall be paid pursuant to this Article in the
event of an adverse determination pursuant to Section 3 of this
Article or in respect of remuneration to the extent that it shall
be determined to have been paid in violation of law or in respect
of amounts owing under Section 16(b) of the Securities Exchange
Act of 1934. The rights to indemnification and advancement of
expenses provided by any provision of this Article, including
-16-
<PAGE>
without limitation those rights conferred by the preceding
sentence, shall not be deemed exclusive of, and shall not affect,
any other rights to which an Agent seeking indemnification or
advancement of expenses may be entitled under any provision of
any law, certificate of incorporation, by-law, agreement or by
any vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to
action in another capacity while serving as an Agent. The
corporation may also provide indemnification and advancement of
expenses to other persons or entities to the extent deemed
appropriate.
ARTICLE V
MISCELLANEOUS
SECTION 1. FISCAL YEAR. The fiscal year of the
corporation shall be the calendar year.
SECTION 2. STOCK CERTIFICATES. Each stockholder shall
be entitled to a certificate representing the number of shares of
the stock of the corporation owned by such stockholder and the
class or series of such shares. Each certificate shall be signed
in the name of the corporation by (i) the Chairman of the Board,
the Vice Chairman of the Board, the President, an Executive Vice
President, a Senior Vice President, or a Vice President, and (ii)
the Treasurer, an Assistant Treasurer, the Secretary, or an
Assistant Secretary. Any of the signatures on the certificate
may be facsimile. Prior to due presentment for registration of
transfer in the stock transfer book of the corporation, the
registered owner for any share of stock of the corporation shall
be treated as the person exclusively entitled to vote, to receive
notice, and to exercise all other rights and receive all other
entitlements of a stockholder with respect to such share, except
as may be provided otherwise by law.
SECTION 3. EXECUTION OF WRITTEN INSTRUMENTS. All
written instruments shall be binding upon the corporation if
signed on its behalf by (i) any two of the following officers:
the Chairman of the Board, the President, the Vice Chairman of
the Board, the Vice Chairmen or the Executive Vice Presidents; or
(ii) any one of the foregoing officers signing jointly with any
Senior Vice President. Whenever any other officer or person
shall be authorized to execute any agreement, document or
-17-
<PAGE>
instrument by resolution of the Board of Directors, or by the
Chief Executive Officer, or by any two of the officers identified
in the immediately preceding sentence, such execution by such
other officer or person shall be equally binding upon the
corporation.
SECTION 4. SUBSIDIARY. As used in these By-Laws the
term "subsidiary" or "subsidiaries" means any corporation 25
percent or more of whose voting shares is directly or indirectly
owned or controlled by the corporation, or any other affiliate of
the corporation designated in writing as a subsidiary of the
corporation by the Chief Executive Officer of the corporation.
All such written designations shall be filed with the Secretary
of the corporation.
SECTION 5. AMENDMENTS. These By-Laws may be altered,
amended or repealed by a vote of the stockholders entitled to
exercise a majority of the voting power of the corporation, by
written consent of such stockholders or by the Board of
Directors.
SECTION 6. ANNUAL REPORT. The Board of Directors shall
cause an annual report to be sent to the stockholders not later
than 120 days after the close of the fiscal year and at least 15
days prior to the annual meeting of stockholders to be held
during the ensuing fiscal year.
SECTION 7. CONSTRUCTION. Unless the context clearly
requires it, nothing in these By-Laws shall be construed as a
limitation on any powers or rights of the corporation, its
Directors or its officers provided by the General Corporation Law
of Delaware. Unless the context otherwise requires, the General
Corporation Law of Delaware shall govern the construction of
these By-Laws.
SECTION 8. LOANS TO OFFICERS. The corporation may lend
money to, or guarantee any obligation of, or otherwise assist any
officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director
of the corporation or its subsidiary, whenever, in the judgment
of the Board of Directors or any committee thereof, such loan,
guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with
or without interest, and may be unsecured, or secured in such
manner as the Board of Directors or such committee shall approve,
including, without limitation, a pledge of shares of stock of the
corporation. This Section shall not be deemed to deny, limit or
restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
-18-
<PAGE>
SECTION 9. NOTICES; WAIVERS. Whenever, under any
provision of the General Corporation Law of Delaware, the
Certificate of Incorporation or these By-Laws, notice is required
to be given to any director or stockholder, such provision shall
not be construed to mean personal notice, but such notice may be
given in writing, by mail, addressed to such Director or
stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may
also be given by facsimile, telex or telegram. A waiver in
writing of any such required notice, signed by the person or
persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
-19-
<PAGE>
SEE RESTRICTIVE LEGENDS ON REVERSE SIDE
Incorporated under the Laws of the *1,000,000*
State of Delaware
WELLS FARGO & COMPANY
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF LOS ANGELES.
9 7/8% PREFERRED STOCK, SERIES F CUSIP 949740864
THIS CERTIFIES THAT WELLS FARGO BANK, N.A., as Depositary, is the record holder
of One Million Fully Paid and Non-Assessable Shares of 9 7/8% Preferred Stock,
Series F, of
WELLS FARGO & COMPANY
transferable on the share register of the Company in person or by duly
authorized Attorney upon surrender of this Certificate properly endorsed.
WITNESS the seal of the Company and the signatures of its duly
authorized officers.
DATED: ________, 199___
_________________________________ ______________________________
Paul D. Ardleigh
Vice President Treasurer
<PAGE>
For Value Received, ____________ hereby sell, assign and transfer unto__________
________________________________________________________________________________
______________________________________________________________________ shares of
the Preferred Stock of the within named Corporation, represented by the within
Certificate and do hereby irrevocably constitute and appoint ___________________
____________________________________________________________________ Attorney to
transfer the said shares of said Preferred Stock on the books of the said
Corporation, pursuant to the provisions of the By-Laws thereof, with full powers
of substitution in the premises.
Dated________________________A.D. 19____
__________________________________
In Presence of:
____________________________
NOTICE: The signature to this assignment must strictly correspond with the name
as written upon the face of the Certificate in every particular and without
alteration or enlargement or any change whatever.
WELLS FARGO & COMPANY
These shares will not be redeemable prior to November 15, 1996, except as
established. The shares will be redeemable, at the option of the Company, in
whole or in part, on or after November 15, 1996, at a redemption price equal to
Two Hundred Dollars ($200.00) per share plus an amount equal to the sum of all
accrued and unpaid dividends thereon to the date fixed for redemption.
The Company will furnish, without charge, to each 9 7/8% Preferred Stock,
Series F, shareholder who so requests, a full statement of the designations,
rights, privileges, restrictions and all other terms and conditions of the share
of the 9 7/8% Preferred Stock, Series F, and of the shares of any other class or
series of stock of the Company. Such request may be made to the Corporate
Secretary, 420 Montgomery Street, San Francisco, California 94103.
The following abbreviations, when used in the inscription on the face of
this certificate shall be construed as though they were written out in full.
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian
TEN ENT -- as tenants by the entireties -----------------------------------------
JT TEN -- as joint tenants with right (Cust) (Minor)
of survivorship and not under Uniform Gifts to Minors
as tenants in common Act
-------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
<PAGE>
SEE RESTRICTIVE LEGENDS ON REVERSE SIDE
Incorporated under the Laws of the *750,000*
State of Delaware
WELLS FARGO & COMPANY
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF LOS ANGELES.
9% PREFERRED STOCK, SERIES G CUSIP 949740856
THIS CERTIFIES THAT WELLS FARGO BANK, N.A., as Depositary, is the record holder
of Seven Hundred Fifty Thousand Fully Paid and Non-Assessable Shares of 9%
Preferred Stock, Series G, of
WELLS FARGO & COMPANY
transferable on the share register of the Company in person or by duly
authorized Attorney upon surrender of this Certificate properly endorsed.
WITNESS the seal of the Company and the signatures of its duly
authorized officers.
DATED: ________, 199___
__________________________________ ______________________________
Paul D. Ardleigh
Vice President Treasurer
<PAGE>
For Value Received, ____________ hereby sell, assign and transfer unto _________
________________________________________________________________________________
_______________________________________________________________________shares of
the Preferred Stock of the within named Corporation, represented by the within
Certificate and do hereby irrevocably constitute and appoint ___________________
______________________________________________________________Attorney to
transfer the said shares of said Preferred Stock on the books of the said
Corporation, pursuant to the provisions of the By-Laws thereof, with full powers
of substitution in the premises.
Dated________________________A.D. 19____
___________________________________
In Presence of:
_____________________________
NOTICE: The signature to this assignment must strictly correspond with the name
as written upon the face of the Certificate in every particular and without
alteration or enlargement or any change whatever.
WELLS FARGO & COMPANY
These shares will not be redeemable prior to May 29, 1997, except as
established. The shares will be redeemable, at the option of the Company, in
whole or in part, on or after May 29, 1997, at a redemption price equal to Two
Hundred Dollars ($200.00) per share plus an amount equal to the sum of all
accrued and unpaid dividends thereon to the date fixed for redemption.
The Company will furnish, without charge, to each 9% Preferred Stock,
Series G, shareholder who so requests, a full statement of the designations,
rights, privileges, restrictions and all other terms and conditions of the share
of the 9% Preferred Stock, Series G, and of the shares of any other class or
series of stock of the Company. Such request may be made to the Corporate
Secretary, 420 Montgomery Street, San Francisco, California 94103.
The following abbreviations, when used in the inscription on the face of
this certificate shall be construed as though they were written out in full.
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian
TEN ENT -- as tenants by the entireties -----------------------------------------
JT TEN -- as joint tenants with right (Cust) (Minor)
of survivorship and not under Uniform Gifts to Minors
as tenants in common Act
-------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
<PAGE>
*** # ***
(EACH DEPOSITARY
SHARE REPRESENTS A
ONE-EIGHTH INTEREST
IN A SHARE OF 9 7/8%
PREFERRED STOCK,
SERIES F)
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 949740 849
DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES EACH REPRESENTING A ONE-EIGHTH INTEREST IN
A SHARE OF 9 7/8% PREFERRED STOCK, SERIES F OF
WELLS FARGO & COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
1. Wells Fargo Bank, N.A., a corporation duly organized and existing
under the laws of the United State of America, with an office at 707
Wilshire Boulevard, Los Angeles, California 90017, as Depositary (the
"Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares") each Depositary Share representing a one-eighth (1/8th)
interest in a share of 9 7/8% Preferred Stock, Series F, $5.00 par value (the
"Preferred Stock" or the "Stock"), of Wells Fargo & Company, a corporation
duly organized and existing under the laws of the State of Delaware
(the"Company"). Subject to the terms of the Deposit Agreement (as defined
below), each owner of a Depositary Share is entitled, proportionately,
through the Depositary to all rights and preferences of the Preferred Stock
relating thereto, including dividend, voting, redemption and liquidation
rights contained in a certificate adopted by a duly authorized committee of
the Company's Board of Directors setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and
limitations of the Preferred Stock (the "Certificate of Designation" or the
"Certificate"), copies of which are on file at the Depositary's Corporate
Office.
2. THE DEPOSIT AGREEMENT. Depositary Receipts (the "Depositary
Receipts" or the "Receipts"), of which this Receipt is one, are made
available upon the terms and conditions set forth in the Deposit Agreement,
dated as of November 14, 1991 (the "Deposit Agreement"), among the Company,
the Depositary, as successor depositary to First Interstate Bank of
California, and all holders from time to time of the Receipts. The Deposit
Agreement (copies of which are on file at the Depositary's Corporate Office)
sets forth the rights of holders of the Receipts and the rights and duties of
the Depositary and the Company in respect of the Preferred Stock deposited,
and any and all other property and cash deposited from time to time
thereunder. The statements made on the face and the reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and are subject
to the detailed provisions thereof, to which reference is hereby made.
Unless otherwise expressly herein provided, all defined terms used herein
shall have the meanings ascribed to them in the Deposit Agreement.
REFERENCE IS HEREBY MADE TO THE PROVISIONS SET FORTH UNDER THE
CAPTION "TERMS AND CONDITIONS CONTINUED" ON THE REVERSE HEREOF. SUCH
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH IN THIS PLACE.
The holder of this Depositary Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any
purpose, unless the Depositary Receipt shall have been authenticated,
manually by the Depositary, and if a Registrar for the Depositary Receipts
other than the Depositary shall have been appointed, countersigned manually
by such Registrar.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
PREFERRED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. THE
DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY PREFERRED STOCK AT ANY TIME DEPOSITED WITH
THE DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY
SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE
DEPOSITARY RECEIPTS TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of a Depositary Receipt
without charge, upon request addressed to its executive officer or the office
of its transfer agent, a full statement of the designation, relative rights,
preferences and limitations of the shares of each authorized class, and of
each series of Preferred Stock authorized to be issued, so far as the same
may have been fixed, and a statement of the authority of the Board of
Directors to designate and fix the relative rights, preferences and
limitations of any other series.
Dated: Authenticated: WELLS FARGO BANK, N.A. Countersigned:
As Depositary and Registrar (if required)
By By
Authorized Officer Authorized Signature
<PAGE>
(reverse)
TERMS AND CONDITIONS CONTINUED
3. REDEMPTION. Whenever the Company shall elect, in
accordance with the provisions of the Certificate
relating to the Stock, to redeem shares of the Stock, it
shall mail notice to the Depositary of such redemption
not less than 40 nor more than 60 days prior to the date
fixed for redemption, unless the Depositary shall agree
to a shorter time period. The Depositary shall mail
notice of such redemption and the simultaneous redemption
of the number of Depositary Shares relating to the Stock
to be redeemed not less than 30 and not more than 60 days
prior to the date fixed for redemption to the record
holders of the Depositary Shares to be so redeemed. Each
such notice shall state (i) the date of such proposed
redemption; (ii) the number of Depositary Shares to be
redeemed; (iii) the redemption price (which shall include
full cumulative dividends thereon to the redemption
date); (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for payment of
the redemption price; and (v) that dividends in respect
of the Stock underlying the Depositary Shares to be
redeemed will cease to accumulate at the close of
business on such redemption date. In case less than all
the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by
lot or pro rata as may be determined by the Depositary to
be equitable. On and after the date set for redemption,
all dividends in respect of the Depositary Shares so
called for redemption shall cease to accumulate, such
Depositary Shares shall no longer be deemed outstanding
and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the
redemption price) shall cease and terminate. From and
after the redemption date, upon surrender in accordance
with the redemption notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at
a redemption price per Depositary Share equal to one-
eighth (0.125) of the redemption price per share paid in
respect of the shares of Stock plus any other property
underlying such Depositary Shares.
4. TRANSFER, SPLIT-UPS AND COMBINATIONS, SURRENDER OF
DEPOSITARY SHARES AND WITHDRAWAL OF STOCK. The
Depositary Shares evidenced by this Receipt are
transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary, properly
endorsed or accompanied by a properly executed instrument
of transfer, and upon such transfer the Depositary shall
execute a new Receipt to or upon the order of the person
entitled thereto, as provided in the Deposit Agreement.
This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt, representing the
same aggregate number of Depositary Shares as the Receipt
or Receipts surrendered. Any holder of at least eight
Depositary Shares may withdraw the number of whole shares
of stock underlying such Depositary Shares and all other
property relating thereto by surrendering Receipts
evidencing such Depositary Shares. Thereafter, the
Depositary shall deliver to such holder the number of
whole shares of Stock and all other property underlying
the Depositary Shares so surrendered, but holders of such
whole shares of Stock will not thereafter be entitled to
deposit such Stock under the Deposit Agreement or to
receive Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection
with such withdrawal shall evidence a number of
Depositary Shares relating to other than a whole number
of shares of Stock, the Depositary shall at the same
time, in addition to such number of whole shares of stock
and other property to be so withdrawn, deliver to such
holder a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and
other property being withdrawn may be made by delivery of
such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and other property being withdrawn are to
be delivered to a person other than the record holder of
the Depositary Shares evidenced by the Receipts being
surrendered, such holder shall deliver a written order so
directing the Depositary. The Depositary may require
that Receipts surrendered for withdrawal of Stock be
properly endorsed in blank or accompanied by a properly
executed instrument of transfer.
Delivery of the Stock and other property underlying
Depositary Shares surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except
that, at the request, risk and expense of the holder
surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other
place as may be designated by such holder.
5. SUSPENSION OF DELIVERY, TRANSFER, ETC. The
transfer or surrender of this Receipt may be suspended
during any period when the register of stockholders of
the Company is closed or if any such action is deemed
necessary or advisable by the Depositary, any agent of
the Depositary, or the Company at any time or from time
to time because of any requirement of law or of any
government or governmental body or commission, or under
any provision of the Deposit Agreement.
6. FILING PROOFS, CERTIFICATES AND INFORMATION. Any
holder of a Depositary Share may be required to file such
proof of residence, or other matters or other
information, to execute such certificates and to make
such representations and warranties as the Depositary or
the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or
delay the registration of transfer, redemption or
exchange, of any Depositary Share or the withdrawal of
any Stock underlying Depositary Shares or the
distribution of any dividend or other distribution or the
sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates
are executed or such representations and warranties are
made.
7. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If
any tax or other governmental charge shall become payable
by or on behalf of the Depositary with respect to this
Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder
hereof. Transfer of Depositary Shares or any withdrawal
of Stock may be refused until such payment is made, and
any dividends or other distributions may be withheld or
all or any part of the Stock or other property underlying
the Depositary Share or Shares evidenced by this Receipt
and not theretofore sold may be sold for the account of
the holder hereof (after attempting by reasonable means
to notify such holder prior to such sale), and such
dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges
or expenses, the holder of this Receipt remaining liable
for any deficiency.
8. WARRANTY BY COMPANY. The Company has warranted
that the Stock, when issued, will be validly issued,
fully paid and nonassessable.
9. AMENDMENT. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and
from time to time be amended by agreement between the
Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no
such amendment which shall materially and adversely alter
the rights of the existing holders of Depositary Shares
shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the
Depositary Shares then outstanding. A holder of a
Receipt at the time any such amendment so becomes
effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby.
10. CHARGES OF DEPOSITARY. The Company will pay all
transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements,
and all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of
the Receipts, any redemption of the Stock at the option
of the Company and any withdrawals of Stock by holders of
Depositary Shares. All other transfer and other taxes
and other governmental charges shall be at the expense of
holders of Depositary Shares. All other charges and
expenses of the Depositary, any Depositary's Agent and
any Registrar will be paid upon consultation and
agreement between the Depositary and the Company.
11. TITLE TO RECEIPTS. This Receipt (and the
Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument;
provided, however, that until transfer of the Depositary
Share or Shares evidenced by a Receipt shall be
registered on the books of the Depositary, the Depositary
may, notwithstanding any notice to the contrary, treat
the record holder of such Depositary Share or Shares at
such time as the absolute owner thereof for the purpose
of determining the person entitled to distributions of
dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other
purposes.
12. DIVIDENDS AND DISTRIBUTIONS. Whenever the
Depositary receives any cash dividend or other cash
distribution on the Stock, the Depositary will, subject
to the provisions of the Deposit Agreement, make such
distribution to the holders of Depositary Shares as
nearly as practicable in proportion to the number of
Depositary Shares held by them; provided, however, that
the amount distributed will be reduced by any amounts
required to be withheld by the Company or the Depositary
on account of taxes. Other distributions received on the
Stock may be distributed to holders of Depositary Shares
as provided in the Deposit Agreement.
13. FIXING OF RECORD DATE. Whenever any cash dividend
or other cash distribution shall become payable or any
distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered,
with respect to the Stock, or whenever the Depositary
shall receive notice of any meeting at which holders of
Stock are entitled to vote or of which holders of Stock
are entitled to notice, the Depositary shall in each
instance fix a record date (which shall be the record
date fixed by the Company with respect to the Stock), for
the determination of the holders of Depositary Shares who
shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of
the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting or who
shall be entitled to notice of such meeting.
14. VOTING RIGHTS. Upon receipt of notice of any
meeting at which holders of the Stock are entitled to
vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of the Depositary
Shares a notice which shall contain (i) such information
as is contained in such notice of meeting and (ii) a
statement informing holders of Depositary Shares that
they may instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock
underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may
be given. Upon the written request of a holder of a
Depositary Share on the record date established in
accordance with paragraph 13 hereof, the Depositary shall
endeavor insofar as practicable to vote or cause to be
voted the amount of Stock underlying such Depositary
Share in accordance with the instructions set forth in
such request. In the absence of specific instructions
from the holder of a Depositary Share, the Depositary
will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Stock
unless directed to the contrary by the holders of all the
Depositary Shares) to the extent of the Stock underlying
such Depositary Share.
15. CHANGES AFFECTING DEPOSITED SECURITIES. Upon any
change in par or liquidation value, split-up, combination
or any other reclassification of the Stock or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a
party, the Depositary may in its discretion, with the
approval of the Company, and in such manner as the
Depositary may deem equitable (i) make such adjustments
in (a) the fraction of an interest in one share of Stock
underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption
price of a share of Stock, in each case as may be
necessary fully to reflect the effect of such change and
(ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so
received in exchange for or upon conversion of or in
respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for
the surrender of all outstanding Receipts to be exchanged
for new Receipts specifically describing such new
deposited securities.
16. LIABILITY AND OBLIGATIONS OF THE DEPOSITARY, THE
DEPOSITARY'S AGENTS OR THE COMPANY. Neither the
Depositary nor any Depositary's Agent nor any Registrar
nor the Company assumes any obligations or shall be
subject to any liability under the Deposit Agreement to
any holder of any Depositary Share, other than for its
gross negligence or willful misconduct. Neither the
Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall incur any liability to any holder
of any Depositary Share if by reason of any provision of
any present or future law or regulation thereunder, of
the United States of America or of any other governmental
authority or, in the case of the Depositary, any
Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's
Certificate of Incorporation (including the Certificate)
or by reason of any act of God or war or other
circumstance beyond their control, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be
prevented or forbidden from doing or performing any act
or thing which the terms of the Deposit Agreement provide
shall be done or performed, nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur
any liability to any holder of a Depositary Share by
reason of nonperformance or delay, caused as aforesaid,
in performance of any act or thing which the terms of the
Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit
Agreement, other than for its gross negligence or willful
misconduct. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any
obligation or shall be subject to any liability under the
Deposit Agreement to holders of Depositary Shares other
than to use its best judgment and good faith in the
performance of such duties as are specifically set forth
in the Deposit Agreement. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company
shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of
the Stock, the Depositary Shares or the Receipts, which
in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense
and liability be furnished. The Deposit Agreement
contains various other exculpatory, indemnification and
related provisions, to which reference is hereby made.
17. RESIGNATION AND REMOVAL OF DEPOSITARY. The
Depositary may at any time (i) resign by written notice
of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such
appointment, or (ii) be removed by the Company effective
upon the appointment of a successor Depositary and its
acceptance of such appointment.
18. TERMINATION OF DEPOSIT AGREEMENT. The Deposit
Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary
Shares shall have been redeemed or (ii) there shall have
been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding
up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares. Upon
the termination of the Deposit Agreement, the Company
shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any
Depositary's Agent and any Registrar with respect to
indemnification, charges and expenses.
19. GOVERNING LAW. THIS RECEIPT AND THE DEPOSIT
AGREEMENT AND ALL RIGHTS HEREUNDER AND THEREUNDER AND THE
PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF
ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO
RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE
COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT
AGREEMENT. THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR
SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO
THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS
TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT,
TITLE OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS
TO THE DEPOSITARY SHARES.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT
AGREEMENT AND A STATEMENT OR SUMMARY OF THE POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF WHICH THE COMPANY IS AUTHORIZED TO
ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH
REQUEST IS TO BE ADDRESSED TO THE TRANSFER AGENT NAMED ON
THE FACE OF THIS CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - __________________________________________________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act_______________________________________________________
(State)
UNIF TRF MIN ACT - ___________________________ Custodian ____________________
(Cust) (Minor)
(until age __________) under Uniform
Transfers to Minors Act
__________________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, __________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
Please print or typewrite name and address including postal zip code
of assignee
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________Depositary Shares represented by
the within Receipt, and do hereby irrevocably constitute and appoint__________
Attorney to transfer the said Depositary Shares on the books of the
within-named Depositary with full power of substitution in the premises.
Dated:
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
<PAGE>
*** # ***
(EACH DEPOSITARY
SHARE REPRESENTS A
ONE-EIGHTH INTEREST
IN A SHARE OF 9%
PREFERRED STOCK,
SERIES G)
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 949740 831
DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES EACH REPRESENTING A ONE-EIGHTH INTEREST IN
A SHARE OF 9% PREFERRED STOCK, SERIES G OF
WELLS FARGO & COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
1. Wells Fargo Bank, N.A., a corporation duly organized and
existing under the laws of the United State of America, with an
office at 707 Wilshire Boulevard, Los Angeles, California 90017, as
Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares") each Depositary Share representing a one-eighth (1/8th)
interest in a share of 9% Preferred Stock, Series G, $5.00 par value (the
"Preferred Stock" or the "Stock"), of Wells Fargo & Company, a corporation
duly organized and existing under the laws of the State of Delaware
(the"Company"). Subject to the terms of the Deposit Agreement (as defined
below), each owner of a Depositary Share is entitled, proportionately,
through the Depositary to all rights and preferences of the Preferred Stock
relating thereto, including dividend, voting, redemption and liquidation
rights contained in a certificate adopted by a duly authorized committee of
the Company's Board of Directors setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and
limitations of the Preferred Stock (the "Certificate of Designation" or the
"Certificate"), copies of which are on file at the Depositary's Corporate
Office.
2. THE DEPOSIT AGREEMENT. Depositary Receipts (the "Depositary
Receipts" or the "Receipts"), of which this Receipt is one, are made
available upon the terms and conditions set forth in the Deposit Agreement,
dated as of May 29, 1992 (the "Deposit Agreement"), among the Company, the
Depositary, as successor depositary to First Interstate Bank of California,
and all holders from time to time of the Receipts. The Deposit Agreement
(copies of which are on file at the Depositary's Corporate Office) sets forth
the rights of holders of the Receipts and the rights and duties of the
Depositary and the Company in respect of the Preferred Stock deposited, and
any and all other property and cash deposited from time to time thereunder.
The statements made on the face and the reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. Unless
otherwise expressly herein provided, all defined terms used herein shall have
the meanings ascribed to them in the Deposit Agreement.
REFERENCE IS HEREBY MADE TO THE PROVISIONS SET FORTH UNDER THE CAPTION
"TERMS AND CONDITIONS CONTINUED" ON THE REVERSE HEREOF. SUCH PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS
PLACE.
The holder of this Depositary Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any
purpose, unless the Depositary Receipt shall have been authenticated,
manually by the Depositary, and if a Registrar for the Depositary Receipts
other than the Depositary shall have been appointed, countersigned manually
by such Registrar.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
PREFERRED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. THE
DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY PREFERRED STOCK AT ANY TIME DEPOSITED WITH
THE DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY
SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE
DEPOSITARY RECEIPTS TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of a Depositary Receipt without
charge, upon request addressed to its executive officer or the office of its
transfer agent, a full statement of the designation, relative rights,
preferences and limitations of the shares of each authorized class, and of
each series of Preferred Stock authorized to be issued, so far as the same
may have been fixed, and a statement of the authority of the Board of
Directors to designate and fix the relative rights, preferences and
limitations of any other series.
Dated: Authenticated: WELLS FARGO BANK, N.A. Countersigned:
As Depositary and Registrar (if required)
By By
Authorized Officer Authorized Signature
<PAGE>
TERMS AND CONDITIONS CONTINUED
3. REDEMPTION. Whenever the Company shall elect, in accordance with the
provisions of the Certificate relating to the Stock, to redeem shares of the
Stock, it shall mail notice to the Depositary of such redemption not less
than 40 nor more than 60 days prior to the date fixed for redemption, unless
the Depositary shall agree to a shorter time period. The Depositary shall
mail notice of such redemption and the simultaneous redemption of the number
of Depositary Shares relating to the Stock to be redeemed not less than 30
and not more than 60 days prior to the date fixed for redemption to the
record holders of the Depositary Shares to be so redeemed. Each such notice
shall state (i) the date of such proposed redemption; (ii) the number of
Depositary Shares to be redeemed; (iii) the redemption price (which shall
include full cumulative dividends thereon to the redemption date); (iv) the
place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will
cease to accumulate at the close of business on such redemption date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot or pro rata as
may be determined by the Depositary to be equitable. On and after the date
set for redemption, all dividends in respect of the Depositary Shares so
called for redemption shall cease to accumulate, such Depositary Shares shall
no longer be deemed outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
price) shall cease and terminate. From and after the redemption date, upon
surrender in accordance with the redemption notice of the Receipts evidencing
any such Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary shall so require), such Depositary Shares shall be redeemed by
the Depositary at a redemption price per Depositary Share equal to one-eighth
(0.125) of the redemption price per share paid in respect of the shares of
Stock plus any other property underlying such Depositary Shares.
4. TRANSFER, SPLIT-UPS AND COMBINATIONS, SURRENDER OF DEPOSITARY SHARES AND
WITHDRAWAL OF STOCK. The Depositary Shares evidenced by this Receipt are
transferable on the books of the Depositary upon surrender of this Receipt to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer the Depositary shall execute a
new Receipt to or upon the order of the person entitled thereto, as provided
in the Deposit Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt, representing the same
aggregate number of Depositary Shares as the Receipt or Receipts surrendered.
Any holder of at least eight Depositary Shares may withdraw the number of
whole shares of stock underlying such Depositary Shares and all other
property relating thereto by surrendering Receipts evidencing such Depositary
Shares. Thereafter, the Depositary shall deliver to such holder the number
of whole shares of Stock and all other property underlying the Depositary
Shares so surrendered, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock under the Deposit Agreement or
to receive Depositary Shares therefor. If a Receipt delivered by a holder to
the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares relating to other than a whole number of shares of Stock,
the Depositary shall at the same time, in addition to such number of whole
shares of stock and other property to be so withdrawn, deliver to such holder
a new Receipt evidencing such excess number of Depositary Shares. Delivery
of the Stock and money and other property being withdrawn may be made by
delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Stock and other property being withdrawn are to be delivered to a
person other than the record holder of the Depositary Shares evidenced by the
Receipts being surrendered, such holder shall deliver a written order so
directing the Depositary. The Depositary may require that Receipts
surrendered for withdrawal of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer.
Delivery of the Stock and other property underlying Depositary Shares
surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such
holder, such delivery may be made at such other place as may be designated by
such holder.
5. SUSPENSION OF DELIVERY, TRANSFER, ETC. The transfer or surrender of this
Receipt may be suspended during any period when the register of stockholders
of the Company is closed or if any such action is deemed necessary or
advisable by the Depositary, any agent of the Depositary, or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of the
Deposit Agreement.
6. FILING PROOFS, CERTIFICATES AND INFORMATION. Any holder of a Depositary
Share may be required to file such proof of residence, or other matters or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Depositary Share or the withdrawal of any Stock underlying
Depositary Shares or the distribution of any dividend or other distribution
or the sale of any rights or of the proceeds thereof until such proof or
other information is filed or such certificates are executed or such
representations and warranties are made.
7. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary
with respect to this Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder hereof. Transfer of
Depositary Shares or any withdrawal of Stock may be refused until such
payment is made, and any dividends or other distributions may be withheld or
all or any part of the Stock or other property underlying the Depositary
Share or Shares evidenced by this Receipt and not theretofore sold may be
sold for the account of the holder hereof (after attempting by reasonable
means to notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale may be applied to any payment
of such charges or expenses, the holder of this Receipt remaining liable for
any deficiency.
8. WARRANTY BY COMPANY. The Company has warranted that the Stock, when
issued, will be validly issued, fully paid and nonassessable.
9. AMENDMENT. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the existing holders of
Depositary Shares shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. A holder of a Receipt at the time any such amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby.
10. CHARGES OF DEPOSITARY. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements, and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Receipts,
any redemption of the Stock at the option of the Company and any withdrawals
of Stock by holders of Depositary Shares. All other transfer and other taxes
and other governmental charges shall be at the expense of holders of
Depositary Shares. All other charges and expenses of the Depositary, any
Depositary's Agent and any Registrar will be paid upon consultation and
agreement between the Depositary and the Company.
11. TITLE TO RECEIPTS. This Receipt (and the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as
in the case of a negotiable instrument; provided, however, that until
transfer of the Depositary Share or Shares evidenced by a Receipt shall be
registered on the books of the Depositary, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder of such
Depositary Share or Shares at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in the Deposit Agreement,
and for all other purposes.
12. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary receives any cash
dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the holders of Depositary Shares as nearly as practicable in proportion to
the number of Depositary Shares held by them; provided, however, that the
amount distributed will be reduced by any amounts required to be withheld by
the Company or the Depositary on account of taxes. Other distributions
received on the Stock may be distributed to holders of Depositary Shares as
provided in the Deposit Agreement.
13. FIXING OF RECORD DATE. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall
be made, or if rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice, the Depositary shall in each
instance fix a record date (which shall be the record date fixed by the
Company with respect to the Stock), for the determination of the holders of
Depositary Shares who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at
any such meeting or who shall be entitled to notice of such meeting.
14. VOTING RIGHTS. Upon receipt of notice of any meeting at which holders
of the Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of the Depositary Shares a
notice which shall contain (i) such information as is contained in such
notice of meeting and (ii) a statement informing holders of Depositary Shares
that they may instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock underlying their respective Depositary
Shares and a brief statement as to the manner in which such instructions may
be given. Upon the written request of a holder of a Depositary Share on the
record date established in accordance with paragraph 13 hereof, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted
the amount of Stock underlying such Depositary Share in accordance with the
instructions set forth in such request. In the absence of specific
instructions from the holder of a Depositary Share, the Depositary will
abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of all the Depositary Shares) to the extent of the Stock underlying
such Depositary Share.
15. CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Stock or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion, with the approval of the Company, and in such manner
as the Depositary may deem equitable (i) make such adjustments in (a) the
fraction of an interest in one share of Stock underlying one Depositary Share
and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully
to reflect the effect of such change and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or
in respect of the Stock as new deposited securities so received in exchange
for or upon conversion of or in respect of such Stock. In any such case the
Depositary may in its discretion, with the approval of the Company, execute
and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities.
16. LIABILITY AND OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS OR
THE COMPANY. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligations or shall be subject to any
liability under the Deposit Agreement to any holder of any Depositary Share,
other than for its gross negligence or willful misconduct. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Depositary Share if by reason of any
provision of any present or future law or regulation thereunder, of the
United States of America or of any other governmental authority or, in the
case of the Depositary, any Depositary's Agent or any Registrar, by reason of
any provision, present or future, of the Company's Certificate of
Incorporation (including the Certificate) or by reason of any act of God or
war or other circumstance beyond their control, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of the
Deposit Agreement provide shall be done or performed, nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability to any holder of a Depositary Share by reason of nonperformance or
delay, caused as aforesaid, in performance of any act or thing which the
terms of the Deposit Agreement provide shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement, other than for its gross negligence or willful
misconduct. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligation or shall be subject to any
liability under the Deposit Agreement to holders of Depositary Shares other
than to use its best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
be under any obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of the Stock, the Depositary Shares or the
Receipts, which in its opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and liability be furnished.
The Deposit Agreement contains various other exculpatory, indemnification and
related provisions, to which reference is hereby made.
17. RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may at any time
(i) resign by written notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment, or (ii) be removed by the
Company effective upon the appointment of a successor Depositary and its
acceptance of such appointment.
18. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have been redeemed or (ii) there shall have been made
a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares. Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar with respect to indemnification, charges
and expenses.
19. GOVERNING LAW. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND THE PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. THE DEPOSITARY MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY HEREUNDER OR OF THE
DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT
AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE
OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS TO THE DEPOSITARY SHARES.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH THE
COMPANY IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ________________________________________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act_____________________________________________
(State)
UNIF TRF MIN ACT - __________________________Custodian _____________
(Cust) (Minor)
(until age __________) under Uniform
Transfers to Minors Act
_________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, __________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
Please print or typewrite name and address including postal zip code
of assignee
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_____________________________________________ Depositary Shares represented by
the within Receipt, and do hereby irrevocably constitute and appoint _________
Attorney to transfer the said Depositary Shares on the books of the
within-named Depositary with full power of substitution in the premises.
Dated:
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
