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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): September 20, 1996
WELLS FARGO & COMPANY
(Exact name of registrant as specified in its charter)
Delaware 1-6214 No. 13-2553920
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
420 Montgomery Street, San Francisco, California 94163
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 477-1000
Not Applicable
(Former name or former address, if changed since last report)
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Wells Fargo & Company (the "Company") hereby amends Exhibit 4(a) to the
Company's Current Report on Form 8-K dated September 20, 1996, filed with the
Securities and Exchange Commission on September 20, 1996 (the "Form 8-K"), as
set forth in the pages attached hereto.
Item 5: Other Events
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On September 19, 1996 Wells Fargo & Company (the "Company") authorized the
sale and established the terms of up to 4,000,000 shares of Fixed/Adjustable
Rate Noncumulative Preferred Stock, Series H, under Registration No. 333-10469.
Item 7: Financial Statements and Exhibits
---------------------------------
(a) Financial statements of businesses acquired: Not applicable.
(b) Pro forma financial information: Not applicable.
(c) Index of Exhibits:
4(a) -- Certificate of Designation for the Fixed/Adjustable Rate
Noncumulative Preferred Stock.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on September 23, 1996.
WELLS FARGO & COMPANY
By: /s/ Paul D. Ardleigh
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Name: Paul D. Ardleigh
Title: Vice President
2.
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Exhibit 4(a)
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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
FIXED/ADJUSTABLE RATE
NONCUMULATIVE PREFERRED STOCK,
SERIES H
OF
WELLS FARGO & COMPANY
WE, THE UNDERSIGNED, Robert S. Singley and Pui-Mei Wong, the Vice
President and the Assistant Secretary, respectively, of Wells Fargo & Company, a
corporation organized and existing under the laws of the State of Delaware (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 September 19, 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 July 16, 1996 and September 17, 1996, the Financing Committee of
the Board of Directors hereby authorizes the issuance of a series of preferred
stock, $5.00 par value of this Company, and the designation, powers,
preferences and privileges, relative, participating, optional and other special
rights, and qualifications, limitations and restrictions thereof, in addition to
those set forth in the Restated Certificate of Incorporation of the Company, are
hereby fixed as follows:
1. Number of Shares. Four million (4,000,000) shares of the
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preferred stock $5.00 par value of the Company, are hereby constituted as a
series of preferred stock $5.00 par value designated as "Fixed/Adjustable Rate
Noncumulative Preferred Stock, Series H" (hereinafter called the "Series H
Preferred Stock").
1.
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2. Dividends.
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2.1 The holders of shares of the Series H Preferred Stock shall be
entitled to receive cash dividends, when, as and if declared by the Board of
Directors of the Company (the "Board of Directors"), out of funds legally
available for that purpose, at the rate set forth below in this Section 2
applied to the amount of $50 per share. Such dividends shall be payable
quarterly, when, as and if declared by the Board of Directors on January 1,
April 1, July 1 and October 1 of each year, commencing on January 1, 1997. Each
such dividend shall be payable in arrears to the holders of record of shares of
the Series H Preferred Stock, as they appear on the stock register of the
Company on such record dates, not more than 30 nor less than 15 days preceding
the payment dates thereof, as shall be fixed by the Board of Directors.
Dividends on the Series H Preferred Stock shall not be cumulative and no rights
shall accrue to the holders of the Series H Preferred Stock if the Company fails
to declare one or more dividends on the Series H Preferred Stock in any amount,
whether or not the earnings or financial condition of the Company were
sufficient to pay such dividends in whole or in part, except as described below
under "Voting Rights".
2.2(a) Dividend periods ("Dividend Periods") shall commence on
January 1, April 1, July 1 and October 1 of each year other than the initial
Dividend Period, which shall commence on the date of original issue of the
Series H Preferred Stock and shall end on and include the calendar day next
preceding the first day of the next Dividend Period. The initial dividend on the
shares of Series H Preferred Stock, for the period from the date of original
issue thereof to but not including January 1, 1997 shall be $0.8878 per share of
Series H Preferred Stock and such dividend shall be payable (if declared) on
January 1, 1997. For each Dividend Period thereafter the dividend rate on the
shares of Series H Preferred Stock shall be 6.59% per annum through October 1,
2001. The amount of dividends payable for each full Dividend Period occurring
prior to October 1, 2001 for the Series H Preferred Stock, shall be computed by
dividing the dividend rate of 6.59% per annum by four and applying the resulting
rate of 1.6475% to the amount of $50 per share. For each Dividend Period
beginning on or after October 1, 2001, the dividend rate on the shares of Series
H Preferred Stock shall be the Applicable Rate (as defined below) per annum. The
amount of dividends payable for each full Dividend Period beginning on or after
October 1, 2001 shall be computed by dividing the Applicable Rate per annum by
four and applying the resulting rate to the amount of $50 per share. The amount
of dividends payable for any period shorter or longer than a full Dividend
Period on the Series H Preferred Stock, shall be computed on the basis of twelve
30-day months, a 360-day year and, for any Dividend Period of less than one
month (other than the initial Dividend Period), the actual number of days
elapsed in such period. Unless otherwise required by law, dividends payable with
respect to each share of Series H Preferred Stock, shall be rounded to the
fourth significant digit if expressed in dollars. Dividends payable to each
holder shall be determined by multiplying the number of shares held by such
holder by the per share dividend and the product rounded to the nearest one
cent. Holders of
2.
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shares called for redemption on a redemption date between a dividend payment
record date and the dividend payment date shall not be entitled to receive the
dividend payable on such dividend payment date.
(b) The "Applicable Rate" per annum for any Dividend Period beginning
on or after October 1, 2001 shall be equal to .44% plus the Effective Rate (as
defined below), but not less than 7% or more than 13% (without taking into
consideration any adjustments as described in paragraph (viii) below), except as
described below in this paragraph. The "Effective Rate" for any Dividend Period
beginning on or after October 1, 2001 shall be equal to the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such Dividend Period. The
Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate shall each be rounded to the nearest five hundredths of a
percent, with .025% being rounded upward. In the event that the Company
determines in good faith that for any reason: (A) any one of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate or the Thirty Year Constant Maturity
Rate cannot be determined for any Dividend Period beginning on or after October
1, 2001, then the Effective Rate for such Dividend Period shall be equal to the
higher of whichever two of such rates can be so determined; (B) only one of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate or the Thirty Year
Constant Maturity Rate can be determined for any Dividend Period beginning on or
after October 1, 2001, then the Effective Rate for such Dividend Period shall be
equal to whichever such rate can be so determined; or (C) none of the Treasury
Bill Rate, the Ten Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate can be determined for any Dividend Period beginning on or after
October 1, 2001, then the Effective Rate for the preceding Dividend Period shall
be continued for such Dividend Period.
(c) The "Treasury Bill Rate" for each applicable Dividend Period shall
be the arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate, if only one
such rate is published during the relevant Calendar Period (as defined below))
for three-month U.S. Treasury bills, as published weekly by the Federal Reserve
Board (as defined below) during the Calendar Period immediately preceding the
last ten calendar days preceding the Dividend Period for which the dividend rate
on the Series H Preferred Stock is being determined, except as described below
in this paragraph. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during any such Calendar Period,
then the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such rate is published
during the relevant Calendar Period) for three-month U.S. Treasury bills, as
published weekly during such Calendar Period by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the Company. In the event
that a per annum market discount rate for three-month U.S. Treasury bills is not
published by the
3.
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Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury Bill Rate
for such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate is published during the relevant Calendar
Period) for all of the U.S. Treasury bills then having remaining maturities of
not less than 80 nor more than 100 days, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board does not
publish such rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. In the event that the Company
determines in good faith that for any reason no such U.S. Treasury bill rates
are published as provided above during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period shall be the arithmetic average of the per
annum market discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable non-interest-bearing U.S. Treasury
securities with a remaining maturity of not less than 80 nor more than 100 days
from the date of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily quotations are not
generally available) to the Company by at least three recognized dealers in U.S.
Government securities selected by the Company. In the event that the Company
determines in good faith that for any reason the Company cannot determine the
Treasury Bill Rate for any applicable Dividend Period as provided above in this
paragraph, the Treasury Bill Rate for such applicable Dividend Period shall be
the arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a remaining maturity of not less
than 80 nor more than 100 days, as chosen and quoted daily for each business day
in New York City (or less frequently if daily quotations are not generally
available) to the Company by at least three recognized dealers in U.S.
Government securities selected by the Company.
(d) The "Ten Year Constant Maturity Rate" for each applicable Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (as defined below) (or the one weekly per annum Ten Year
Average Yield, if only one such yield is published during the relevant Calendar
Period), as published weekly by the Federal Reserve Board during the Calendar
Period immediately preceding the last ten calendar days preceding the Dividend
Period for which the dividend rate on the Series H Preferred Stock is being
determined, except as described below in this paragraph. In the event that the
Federal Reserve Board does not publish such a weekly per annum Ten Year Average
Yield during such Calendar Period, then the Ten Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum Ten Year Average Yields (or the one weekly per annum Ten Year
Average Yield, if only one such yield is published during the relevant Calendar
Period), as published weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the Company. In
the event that a per annum Ten Year Average Yield is not published by the
Federal Reserve Board or by any Federal Reserve Bank or
4.
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by any U.S. Government department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to maturity, if only one
such yield is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities (as defined below)) then having remaining maturities of
not less than eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
does not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Company. In the event that the
Company determines in good faith that for any reason the Company cannot
determine the Ten Year Constant Maturity Rate for any applicable Dividend Period
as provided above in this paragraph, then the Ten Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a final maturity
date not less than eight nor more than twelve years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to the Company
by at least three recognized dealers in U.S. Government securities selected by
the Company.
(e) The "Thirty Year Constant Maturity Rate" for each applicable
Dividend Period shall be the arithmetic average of the two most recent weekly
per annum Thirty Year Average Yields (as defined below) (or the one weekly per
annum Thirty Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the Federal Reserve Board
during the Calendar Period immediately preceding the last ten calendar days
preceding the Dividend Period for which the dividend rate on the Series H
Preferred Stock is being determined, except as described below in this
paragraph. In the event that the Federal Reserve Board does not publish such a
weekly per annum Thirty Year Average Yield during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Thirty Year Average
Yields (or the one weekly per annum Thirty Year Average Yield, if only one such
yield is published during the relevant Calendar Period), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Company. In the event that a
per annum Thirty Year Average Yield is not published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Thirty Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during the relevant
Calendar Period) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities)
5.
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then having remaining maturities of not less than twenty-eight nor more than
thirty years, as published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board does not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected by
the Company. In the event that the Company determines in good faith that for any
reason the Company cannot determine the Thirty Year Constant Maturity Rate for
any applicable Dividend Period as provided above in this paragraph, then the
Thirty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon the
closing bids during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than twenty-eight nor
more than thirty years from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less frequently if daily
quotations are not generally available) to the Company by at least three
recognized dealers in U.S. Government securities selected by the Company.
(f) The Applicable Rate with respect to each Dividend Period beginning
on or after October 1, 2001 shall be calculated as promptly as practicable by
the Company according to the appropriate method described above. The Company
shall cause notice of each Applicable Rate to be enclosed with the dividend
payment checks next mailed to the holders of Series H Preferred Stock.
(g) As used above, the term "Calendar Period" means a period of
fourteen calendar days; the term "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered at face value
in payment of any Federal estate tax or which provide tax benefits to the holder
and are priced to reflect such tax benefits or which were originally issued at a
deep or substantial discount; the term "Ten Year Average Yield" means the
average yield to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of ten years); and the
term "Thirty Year Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of thirty years).
(h) If one or more amendments to the Internal Revenue Code of 1986, as
amended (the "Code"), are enacted that change the percentage of the dividends
received deduction as specified in Section 243(a)(1) of the Code or any
successor provision (the "Dividends Received Percentage"), the amount of each
dividend payable per share of the Series H Preferred Stock for dividend payments
made on or after the date of enactment of such change shall be adjusted by
multiplying the amount of the dividend payable determined as described above
(before adjustment) by a factor, which shall be the number determined in
accordance with the following formula (the "DRD Formula"), and rounding the
result to the nearest cent:
6.
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1 - [.35 (1 - .70)]
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1 - [.35 (1 - DRP)]
For the purposes of the DRD Formula, "DRP" means the Dividends
Received Percentage applicable to the dividend in question. No amendment to the
Code, other than a change in the percentage of the dividends received deduction
set forth in Section 243 (a)(1) of the Code or any successor provision, will
give rise to an adjustment. Notwithstanding the foregoing provisions, in the
event that, with respect to any such amendment, the Company shall receive either
an unqualified opinion of nationally recognized independent tax counsel selected
by the Company or a private letter ruling or similar form of authorization from
the Internal Revenue Service to the effect that such an amendment would not
apply to dividends payable on the Series H Preferred Stock, then any such
amendment shall not result in the adjustment provided for pursuant to the DRD
Formula. The opinion referenced in the previous sentence shall be based upon a
specific exception in the legislation amending the DRP or upon a published
pronouncement of the Internal Revenue Service addressing such legislation.
Unless the context otherwise requires, references to dividends in this
Certificate of Designations shall mean dividends as adjusted by the DRD Formula.
The Company's calculation of the dividends payable as so adjusted and as
certified accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the Company,
shall be final and not subject to review.
(i) If any amendment to the Code which reduces the Dividends Received
Percentage is enacted after a record date and before the next Dividend Payment
Date, the amount of dividend payable on such Dividend Payment Date will not be
increased in accordance with paragraph (viii) above, but instead, an amount
equal to the excess of (x) the product of the dividends paid by the Company on
such Dividend Payment Date and the DRD Formula (where the DRP used in the DRD
Formula would be equal to the reduced Dividends Received Percentage) and (y) the
dividends paid by the Company on such Dividend Payment Date, will be payable (if
declared) to holders of record on the next succeeding Dividend Payment Date in
addition to any other amounts payable on such date.
(j) If, prior to March 31, 1997, an amendment to the Code is enacted
that reduces the Dividends Received Percentage and such reduction retroactively
applies to a Dividend Payment Date as to which the Company previously paid
dividends on the Series H Preferred Stock (each an "Affected Dividend Payment
Date"), holders of the Series H Preferred Stock shall be entitled to receive
when, as and if declared by the Board of Directors, out of funds legally
available for that purpose, additional dividends (the "Additional Dividends") on
the next succeeding Dividend Payment Date (or if such amendment is enacted after
the dividend payable on such Dividend Payment Date has been declared, on the
second succeeding Dividend Payment Date following the date of enactment) to
holders of record on such succeeding Dividend Payment Date in an
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amount equal to the excess of (x) the product of the dividends paid by the
Company on each Affected Dividend Payment Date and the DRD Formula (where the
DRP used in the DRD Formula would be equal to the Dividends Received Percentage
applied to each Affected Dividend Payment Date) and (y) the dividends paid by
the Company on each Affected Dividend Payment Date. Additional Dividends will
not be paid as a result of the enactment of any amendment to the Code on or
after March 31, 1997 which retroactively reduce the Dividends Received
Percentage, or if prior to March 31, 1997, such amendment would not result in an
adjustment due to the Company having received either an opinion of counsel or
tax ruling referred to in paragraph (viii) above. The Company shall only make
one payment of Additional Dividends.
(k) In the event that the amount of dividend payable per share of the
Series H Preferred Stock, shall be adjusted pursuant to the DRD Formula and/or
Additional Dividends are to be paid, the Company will cause notice of each such
adjustment and, if applicable, any Additional Dividends, to be sent to the
holders of the Series H Preferred Stock.
(l) So long as any shares of the Series H 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 Series H
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
Series H 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
Series H Preferred Stock then issued and outstanding.
(m) If any shares of the Series H 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 Series H Preferred
Stock for any period unless full 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 Series H Preferred Stock for all dividend periods
terminating on or prior to the date of payment of such full 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 Series H Preferred Stock or the shares
of any other series of Preferred Stock ranking on a parity as to dividends with
the shares of the Series H Preferred Stock, dividends upon shares of the Series
H 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 Series H Preferred Stock and such other series of Preferred Stock so
declared shall in all cases bear to each other the same ratio that full
dividends on the shares of the Series H
8.
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Preferred Stock and full dividends, including accumulations, if any, on the
shares of such other series of Preferred Stock, bear to each other.
(n) Except as provided in this Section, if full dividends on all
outstanding shares of the Series H Preferred Stock at the rate per share set
forth above shall not have been declared and paid or set aside for payment, the
Company shall not, until full dividends have been declared and paid or set aside
for payment on all outstanding shares of the Series H 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 Series H 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 Series H 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 Series H Preferred Stock as to
dividends and upon liquidation.
(o) Any dividend payment made on shares of the Series H Preferred
Stock shall first be credited against the earliest unpaid dividend due with
respect to such shares.
3. Liquidation Preference.
----------------------
3.1 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 Series H 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 Series H Preferred Stock upon liquidation, to be
paid in full an amount equal to $50 per share, plus an amount equal to all
dividends (whether or not earned or declared) from the immediately preceding
dividend payment date (but without any cumulation for unpaid dividends for
prior Dividend Periods on the Series H Preferred Stock) to the date fixed for
redemption. After payment of the full amount of such liquidation distribution,
the holders of the Series H Preferred Stock shall not be entitled to any further
participation in any distribution of assets of the Company.
3.2 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 Series H 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 Series H Preferred Stock, shall be insufficient
to pay in full the preferential amount set forth in Section 3.1 and liquidating
payments on all such other stock ranking, as to liquidation, dissolution or
winding up, on a parity with the Series H Preferred Stock, then such assets, or
the proceeds thereof, shall be distributed among the holders of the
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Series H Preferred Stock and all such other stock ratably in accordance with the
respective amounts which would be payable on such shares of the Series H
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).
3.3 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 Series H Preferred Stock
of the liquidation distribution to which they are entitled pursuant to Section
3.1, 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 Series H 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.
3.4 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 3.
4. Redemption.
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4.1 Except as provided below, the Series H Preferred Stock, may not be
redeemed prior to October 1, 2001. At any time or from time to time on and after
October 1, 2001, the Company, at its option, may redeem shares of the Series H
Preferred Stock, in whole or in part, out of funds legally available therefor,
at a redemption price of $50 per share, together in each case with accrued and
unpaid dividends (whether or not declared) from the immediately preceding
dividend payment date (but without any cumulation for unpaid dividends for prior
Dividend Periods on the Series H Preferred Stock) to the date fixed for
redemption.
4.2 If the Dividends Received Percentage is equal to or less than 40%
and, as a result, the amount of dividends on the Series H Preferred Stock
payable on any Dividend Payment Date will be or is adjusted upwards as described
in Section 2.2(h) above, the Company, at its option, may redeem all, but
not less than all, of the outstanding shares of the Series H Preferred Stock,
out of funds legally available therefor, provided, that within sixty days of the
date on which an amendment to the Code is enacted which reduces the Dividends
Received Percentage to 40% or less, the Company sends notice to holders of the
Series H Preferred Stock of such redemption in accordance with Section 4.6
below. Any redemption of the Series H Preferred Stock in accordance with this
Section 4.2 shall be on notice as aforesaid at the applicable redemption
price set forth in the following table, in each case plus accrued and unpaid
dividends (whether or not declared) from the immediately preceding dividend
payment date (but without any cumulation for unpaid dividends for prior Dividend
Periods on the Series H Preferred Stock) to the date fixed for redemption.
10.
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<TABLE>
<CAPTION>
Redemption Period Redemption Price Per Share
----------------- --------------------------
<S> <C>
September 24, 1996 to September 30, 1997 $52.50
October 1, 1997 to September 30, 1998 52.00
October 1, 1998 to September 30, 1999 51.50
October 1, 1999 to September 30, 2000 51.00
October 1, 2000 to September 30, 2001 50.50
On or after October 1, 2001 50.00
</TABLE>
4.3 If the holders of the shares of the Series H Preferred Stock are
entitled to vote upon or consent to a merger or consolidation of the Company,
and if the Company offers to purchase all of the outstanding shares of the
Series H Preferred Stock (the "Offer"), then each holder of Series H Preferred
Stock who does not sell his or her shares of the Series H Preferred Stock
pursuant to the Offer shall be deemed irrevocably to have voted or consented
with respect to all shares of Series H Preferred Stock owned by such holder in
favor of the merger or consolidation of the Company without any further action
by the holder. The Offer shall be at a price of $50 per share, together with
accrued and unpaid dividends, if any, from the immediately preceding dividend
payment date (but without any cumulation for unpaid dividends for prior Dividend
Periods on the Series H Preferred Stock) to the date fixed for repurchase,
including any increase in dividends payable due to increases in the Dividends
Received Percentage and Additional Dividends. The Offer must remain open for
acceptance for a period of at least 30 days.
4.4 Notwithstanding the foregoing, if full dividends on all
outstanding shares of Series H Preferred Stock have not been paid or
contemporaneously declared and paid for all past dividend periods, no shares of
Series H Preferred Stock shall be redeemed pursuant to this Section unless all
outstanding shares of Series H Preferred Stock are simultaneously redeemed, and,
unless the full dividends on all outstanding shares of Series H 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 Series H 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 Series H Preferred Stock); provided,
however, that the foregoing shall not prevent the purchase or acquisition of
shares of the Series H 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 Series H Preferred Stock or of such
other series.
4.5 In the event that fewer than all the outstanding shares of the
Series H 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
11.
<PAGE>
shares in proportion to the number of such shares held by such holders (with
adjustments to avoid fractional shares).
4.6 In the event the Company shall redeem shares of the Series H
Preferred Stock, notice of such redemption (a "Notice of Redemption") shall be
given by first class mail, postage prepaid, mailed not less than 30 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 Series H Preferred Stock to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price (specifying the amount of accrued and unpaid dividends to be
included therein); (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; (v) that dividends on
the shares to be redeemed will cease to accumulate on such redemption date; and
(vi) the provision hereunder pursuant to which such redemption is being made.
4.7 If a Notice of Redemption has been given, from and after the
redemption date for the shares of the Series H 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
Series H 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.
4.8 Shares of Series H 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.
5. Conversion or Exchange. The holders of shares of Series H
----------------------
Preferred Stock shall not have any right herein to convert such shares into or
exchange such shares for shares of any other class or classes or of any other
series of any class or classes of capital stock of the Company.
12.
<PAGE>
6. Ranking. The Series H 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 Series H Preferred Stock.
7. Voting Rights.
-------------
7.1 Holders of the Series H 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
Series H Preferred Stock, or any series of Preferred Stock ranking on a parity
with the Series H Preferred Stock as to dividends or upon liquidation (the
Series H 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 Series H Preferred Stock and the holders of any other Parity
Preferred Stock upon which like voting rights have been conferred and are then
exercisable (the Preferred Stock and such other Parity Preferred Stock being
herein referred to as "Voting Parity Preferred Stock"), voting together as a
single class without regard to series, to the exclusion of the holders of the
Common Stock and any other class of capital stock of the Company that is not
Voting Parity Preferred Stock. The holders of the Common Stock and any other
class of capital stock of the Company which has the right to vote at such
meeting (other than the Voting Parity Preferred Stock) shall elect the remaining
directors. Such right of the holders of the Voting Parity Preferred Stock shall
continue until there are no preference dividends in arrears upon the Voting
Parity Preferred Stock of any series at which time such right shall terminate,
except as by law expressly provided, subject to revesting in the event of each
and every subsequent default of the character above mentioned. Upon any such
termination of the right of the holders of shares of Voting Parity Preferred
Stock as a class to vote for directors as herein provided, the term of office of
each director then in office elected by such holders voting as a class (herein
called a "Preferred Director") shall terminate immediately. Any Preferred
Director may be removed by, and shall not be removed without cause except by,
the vote of the holders of record of the outstanding shares of Voting Parity
Preferred Stock, voting together as a single class without regard to series, at
a meeting of the stockholders, or of the holders of shares of Voting Parity
Preferred Stock, called for such purpose. So long as a default in any preference
dividends on the Voting Parity Preferred Stock of any series shall exist, (A)
any vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (B)) by the person appointed by an instrument
in writing signed by the remaining Preferred Director and filed with the Company
and (B) in the case of the removal of any Preferred Director, the vacancy may be
filled by the person elected by the vote of the holders of outstanding shares of
Voting Parity Preferred Stock, voting together as a single class without regard
to series, at the same meeting at which such removal shall be voted or at any
subsequent meeting. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed to
13.
<PAGE>
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 Series H Preferred Stock, shall
be deemed to be dividends in respect of a number of dividend periods containing
not less than 540 days) or more, and having so occurred, such default shall be
deemed to exist thereafter until, but only until, full cumulative dividends on
all shares of Voting Parity Preferred Stock of each and every series then
outstanding shall have been paid to the end of the last preceding dividend
period.
7.2 So long as any shares of Series H 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 Series H 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 Series H
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 Series H Preferred Stock, whether by merger, consolidation or otherwise,
so as to materially and adversely affect any right, preference, privilege or
voting power of the Series H 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 Series H
Preferred Stock shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
7.3 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 Series H Preferred
Stock shall have been redeemed or called for redemption and sufficient funds
shall have been deposited in trust to effect such redemption.
14.
<PAGE>
IN WITNESS WHEREOF, Wells Fargo & Company has caused this Certificate to be
executed by its officers thereunto duly authorized as of this 19th day of
September 1996.
/s/ Robert S. Singley
---------------------------------
Robert S. Singley
Vice President
Attest:
/s/ Pui-Mei Wong
- --------------------------
Pui-Mei Wong
Assistant Secretary
15.
