<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1998
REGISTRATION NO. 333-10469
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WELLS FARGO & COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2553920
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(800) 411-4932
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
GEORGE W. FEHLHABER
SENIOR VICE PRESIDENT AND TREASURER
WELLS FARGO & COMPANY
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(800) 411-4932
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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COPIES TO:
DOUGLAS D. SMITH, ESQ. MITCHELL S. EITEL, ESQ.
GIBSON, DUNN & CRUTCHER LLP SULLIVAN & CROMWELL
ONE MONTGOMERY STREET 125 BROAD STREET
TELESIS TOWER, 26TH FLOOR NEW YORK, NEW YORK 10004
SAN FRANCISCO, CALIFORNIA 94104
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act of 1933 registration statement number
of the earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PER SECURITY OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Notes.....................................
Preferred Stock(3)........................
Depositary Shares(4)(5)................... $3,500,000,000 100%(2) $3,500,000,000 $1,206,897(7)
Common Stock(6)...........................
</TABLE>
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(1) In United States dollars or the equivalent thereof in foreign currency or
currency units. If any of the Notes are issued at an original issue
discount, this amount will be increased such that the public offering price
will equal $3,500,000,000.
(2) Estimated solely for the purpose of calculating the registration fee. The
aggregate public offering price of Notes, Preferred Stock and Common Stock
sold will not exceed $3,500,000,000.
(3) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices and, in addition, as may be issuable
upon conversion, exchange or in payment of the Notes registered hereunder.
(4) Such indeterminate number of Depositary Shares as may be issued in the
event the registrant elects to offer fractional interests in shares of
Preferred Stock registered hereunder.
(5) No additional consideration will be received for the Depositary Shares and
therefore no registration fee is required pursuant to Rule 457(j).
(6) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices and, in addition, as may be issuable
upon conversion or in payment of the Notes and Preferred Stock registered
hereunder.
(7) The registration fee was previously paid when this Registration Statement
was initially filed with the Commission on August 20, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
$2,575,000,000
WELLS FARGO & COMPANY
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WELLS FARGO & COMPANY ("Wells Fargo") intends to offer and sell from time to
time its debt securities (the "Notes"), its Preferred Stock, $5.00 par value
("Preferred Stock"), and its Common Stock, $5.00 par value ("Common Stock"),
with an aggregate public offering price of $2,575,000,000 (or the equivalent in
foreign currencies or composite currencies) on terms to be determined by market
conditions at the time of sale. The Notes, the Preferred Stock and the Common
Stock (together the "Offered Securities") may be offered separately or
together, in separate series, in amounts and at prices and terms to be set
forth in an accompanying Prospectus Supplement ("Prospectus Supplement"). At
the option of Wells Fargo, the Notes may be issued as senior debt securities
("Senior Notes") or as subordinated debt securities ("Subordinated Notes"). The
Offered Securities may be denominated in United States dollars or, at the
option of Wells Fargo, in any other currency, in a composite currency or in
amounts determined by reference to an index which is specified in the
Prospectus Supplement. The specific terms of the Offered Securities in respect
of which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement. The Notes may be convertible or
exchangeable into Preferred Stock or Common Stock of Wells Fargo. The Preferred
Stock may be convertible or exchangeable into Notes or Common Stock of Wells
Fargo. The Common Stock is listed and traded on the New York Stock Exchange
("NYSE") and the Pacific Exchange under the symbol "WFC."
On June 8, 1998, Wells Fargo announced that it had agreed to a merger of
equals with Norwest Corporation ("Norwest") in a stock-for-stock transaction.
The common stock of Norwest is listed on the NYSE under the symbol "NOB." See
"Wells Fargo & Company--Recent Developments."
The Offered Securities may be offered and sold directly by Wells Fargo or
through one or more underwriters or agents. In addition, the Prospectus
Supplement will set forth the terms of sale of the Offered Securities and the
identity of any underwriters or agents. Any underwriters, dealers or agents
participating in any offering of the Offered Securities may be deemed
"underwriters" within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"). See "Plan of Distribution."
Payment of the principal of the Subordinated Notes may be accelerated only in
the case of certain events of bankruptcy, insolvency or reorganization of Wells
Fargo or Wells Fargo Bank, N.A. There is no right of acceleration in the case
of a default in the performance of any covenant with respect to the
Subordinated Notes, including the payment of interest or principal. See
"Description of Notes--Events of Default."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCU-
RACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE OFFERED SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS BUT
ARE UNSECURED DEBT OBLIGATIONS OF, OR EQUITY INTERESTS IN,
WELLS FARGO & COMPANY AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
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This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement covering such Offered Securities.
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The date of this Prospectus is September 16, 1998
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING MADE HEREBY, AND IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY WELLS FARGO OR BY ANY UNDERWRITERS OR AGENTS.
NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE
OFFERED SECURITIES TO WHICH THEY RELATE OR ANY OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY SUCH OFFERED SECURITIES IN ANY CIRCUMSTANCES
IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF.
AVAILABLE INFORMATION
Wells Fargo is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Proxy statements, reports and other information
concerning Wells Fargo can be inspected at the Commission's office at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and the
Commission's Regional Offices in New York (7 World Trade Center, Suite 1300,
New York, New York 10048) and Chicago (Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511), and copies of such material
can be obtained from such facilities and the Public Reference Room maintained
by the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549, at prescribed rates. Information regarding the operation of the Public
Reference Room may be obtained by calling the Commission at 1-800-SEC-0330.
Such material may also be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. In addition, such material
can be inspected at the offices of the New York Stock and Pacific Exchanges on
which certain of Wells Fargo's securities are listed. This Prospectus does not
contain all information set forth in the Registration Statement and Exhibits
thereto which Wells Fargo has filed with the Commission under the Securities
Act and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Wells Fargo (File No.
1-06214) and/or by Norwest (File No. 1-2979) pursuant to Section 13 of the
Exchange Act are hereby incorporated herein by reference:
1. The Joint Proxy Statement/Prospectus of Wells Fargo and Norwest dated
September 11, 1998 (forming part of Norwest's Registration Statement on
Form S-4 (No. 333-63247);
2. Wells Fargo's Annual Report on Form 10-K for the year ended December 31,
1997;
3. Wells Fargo's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1998;
4. Wells Fargo's Current Reports on Form 8-K filed on January 20, March 20,
April 3, April 21, May 21, June 8, June 9, June 11, June 18, July 21,
July 24 and September 15, 1998;
5. Wells Fargo's description of its common stock in Wells Fargo's
Registration Statement on Form 8-B filed on June 17, 1987, including any
amendment or report filed with the Commission for the purpose of
updating such description;
6. Norwest's Annual Report on Form 10-K for the year ended December 31,
1997;
7. Norwest's Quarterly Reports on Form 10-Q for the quarters ended March 31
and June 30, 1998;
8. Norwest's Current Reports on Form 8-K filed on January 22, April 20,
April 22, June 8, June 9, June 12, June 18, July 22 and August 5, 1998;
and
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9. Norwest's description of its common stock in Norwest's Current Report on
Form 8-K filed on October 13, 1997 and description of Norwest Preferred
Stock Purchase Rights in Norwest's Registration Statement on Form 8-A
filed on December 6, 1988, including any amendment or report filed with
the Commission for the purpose of updating such descriptions.
All documents and reports filed with the Commission by Wells Fargo or
Norwest pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Offered Securities shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the dates of
filing such documents or reports. Any statement contained herein, in any
supplement hereto, or in a document incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or superseded for purposes
of the Registration Statement, this Prospectus and any Prospectus Supplement
to the extent that a statement contained herein, in any supplement hereto, or
in any subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement,
this Prospectus or any supplement hereto.
Any person receiving a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents or reports
incorporated by reference herein, except for the exhibits to such documents
unless such exhibits are specifically incorporated by reference therein, from
Wells Fargo & Company, Investor/Public Relations, MAC #0163-029, 343 Sansome
Street, San Francisco, California 94163 (telephone number (415) 396-0560), as
to Company documents; and from Norwest Corporation, Investor Relations,
Norwest Center, Sixth and Marquette, Minneapolis, Minnesota 55479 (telephone
number (888) 662-7865), as to Norwest documents.
WELLS FARGO & COMPANY
GENERAL
Wells Fargo is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHCA"), and incorporated in Delaware.
Based on assets as of June 30, 1998, Wells Fargo was the 11th largest bank
holding company in the United States.
Wells Fargo's principal subsidiary is Wells Fargo Bank, N.A., which is the
successor to the banking portion of the business founded by Henry Wells and
William G. Fargo in 1852. Today, Wells Fargo operates one of the largest
banking businesses in the United States. Wells Fargo Bank, N.A. provides a
broad range of financial products and services through electronic and
traditional channels. Wells Fargo Bank, N.A. is primarily engaged in retail,
commercial and corporate banking, real estate lending and trust and investment
services.
Wells Fargo is also the parent corporation of Wells Fargo Bank (Texas),
N.A., through which banking operations in Texas are primarily conducted, and
Wells Fargo Bank (Arizona), N.A., which operates Wells Fargo's credit card
business. Wells Fargo has a majority ownership interest in Wells Fargo HSBC
Trade Bank, N.A., which provides trade financing, letters of credit and
collection services. Wells Fargo also has other wholly-owned subsidiaries
which provide various banking-related services.
At June 30, 1998, Wells Fargo's total assets were $93.20 billion, its total
deposits were $70.5 billion, and its total stockholders' equity was $13.0
billion.
Wells Fargo is a legal entity separate and distinct from its banking and
non-banking subsidiaries. Accordingly, the right of Wells Fargo, and thus the
right of Wells Fargo's creditors, to participate in any distribution of the
assets or earnings of any subsidiary, other than in its capacity as a creditor
of such subsidiary, is subject to the prior payment of claims of creditors of
such subsidiary. The principal sources of Wells Fargo's revenues are dividends
and fees from its subsidiaries. There are various legal limitations on the
extent to which Wells Fargo Bank, N.A. may extend credit, pay dividends or
otherwise supply funds to Wells Fargo or various of its affiliates.
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Wells Fargo's executive offices are located at 420 Montgomery Street, San
Francisco, California 94163 and its telephone number is (800) 411-4932.
RECENT DEVELOPMENTS
Wells Fargo has entered into an Agreement and Plan of Merger, dated as of
June 7, 1998, and amended and restated as of September 10, 1998 (the "Merger
Agreement"), by and among Wells Fargo, Norwest and WFC Holdings Corporation
("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of
Norwest, which provides for the combination of Wells Fargo and Norwest through
the merger of Wells Fargo with and into Merger Sub. Norwest is a diversified
financial solutions company organized under the laws of Delaware in 1929 and
registered under the BHCA. As a diversified financial solutions organization,
it owns subsidiaries engaged in banking and in a variety of related
businesses. Norwest's subsidiaries provide retail, commercial and corporate
banking services to customers through banks located in Arizona, Colorado,
Illinois, Indiana, Iowa, Minnesota, Montana, Nebraska, Nevada, New Mexico,
North Dakota, Ohio, South Dakota, Texas, Wisconsin and Wyoming. Additional
financial services are provided to customers by Norwest's subsidiaries engaged
in various businesses, principally mortgage banking, consumer finance,
equipment leasing, agricultural finance, commercial finance, and data
processing services, trust services, mortgage-backed securities servicing and
venture capital investment. At June 30, 1998, Norwest reported total assets of
$93.15 billion, total deposits of $56.8 billion and total stockholders' equity
of $7.3 billion. Based on total assets at June 30, 1998, Norwest was the 12th
largest bank holding company in the United States.
Under the terms of the Merger Agreement, Norwest will exchange 10 shares of
Norwest common stock for each outstanding share of Wells Fargo common stock.
Additionally, each share of Wells Fargo's outstanding preferred stock will be
exchanged for a corresponding share of Norwest preferred stock having
substantially the same terms of such Company's preferred stock. The merger,
which is expected to be accounted for as a pooling of interests, is expected
to close in the fourth quarter of 1998 subject to certain conditions of
closing, including approval by the Board of Governors of the Federal Reserve
System and the stockholders of each of Wells Fargo and Norwest.
Additional information with respect to the proposed merger with Norwest is
set forth in the Joint Proxy Statement/Prospectus of Wells Fargo and Norwest
dated September 11, 1998 incorporated herein by reference.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Securities will be used for
general corporate purposes. Specific allocations of the proceeds to such
purposes have not been determined. The net proceeds may be used to reduce
outstanding commercial paper and other debt of Wells Fargo. Based upon the
anticipated future funding requirements of Wells Fargo and its subsidiaries,
Wells Fargo expects that it will, from time to time, engage in additional
financings of a character and in amounts to be determined and that its
commercial paper borrowings and other short-term debt may be increased above
the level prevailing after the initial use of proceeds.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges and the historical ratios of earnings to fixed charges and preferred
stock dividends of Wells Fargo for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS ENDED YEAR ENDED DECEMBER 31,
JUNE 30, 1998 1997 1996 1995 1994 1993
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated Ratios of Earnings to
Fixed Charges /1/,/3/
Including interest on deposits..... 2.05 1.89 1.93 2.19 2.20 1.90
Excluding interest on deposits..... 4.58 4.03 4.64 4.56 5.04 4.53
Consolidated Ratios of Earnings to
Fixed Charges and Preferred Stock
Dividends /1/,/2/,/3/
Including interest on deposits..... 2.02 1.86 1.82 2.09 2.07 1.77
Excluding interest on deposits..... 4.36 3.78 3.78 3.99 4.18 3.51
</TABLE>
4
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/1/For purposes of computing these ratios, earnings represent income before
income tax expense plus fixed charges. Fixed charges represent interest
expense plus the estimated interest component of net rental expense.
/2/The preferred stock dividends are increased to amounts representing the
pretax earnings required to cover such dividends.
/3/These computations are included herein in compliance with Securities and
Exchange Commission regulations. However, management believes the fixed charge
ratios are not meaningful measures for the business of Wells Fargo because of
two factors. First, even if there were no change in net income, the ratios
would decline with an increase in the proportion of income which is tax-exempt
or, conversely, they would increase with a decrease in the proportion of
income which is tax-exempt. Second, even if there were no change in net
income, the ratios would decline if interest income and interest expense
increase by the same amount due to an increase in the level of interest rates
or, conversely, they would increase if interest income and interest expense
decrease by the same amount due to a decrease in the level of interest rates.
DESCRIPTION OF NOTES
The Senior Notes will be issued under an Indenture, dated as of September 1,
1984, as amended by the First Supplemental Indenture dated as of April 15,
1986, the Second Supplemental Indenture dated as of June 30, 1987, and the
Third Supplemental Indenture dated as of January 23, 1991 (together, the
"Senior Indenture"), between Wells Fargo and The Chase Manhattan Bank
(formerly known as Chemical Bank), as successor Trustee (the "Senior
Trustee"). The Subordinated Notes will be issued under an Indenture dated as
of December 10, 1992 (the "Subordinated Indenture"), between Wells Fargo and
Marine Midland Bank, as Trustee (the "Subordinated Trustee"). In this
Prospectus, the Senior Indenture and the Subordinated Indenture are referred
to as the "Indentures." The Senior Trustee and the Subordinated Trustee are
referred to as the "Trustees." As used in this Prospectus, the term "Senior
Notes" means the Senior Notes offered hereby and, unless the context otherwise
requires, any other debt securities heretofore or hereafter issued under the
Senior Indenture, the term "Subordinated Notes" means the Subordinated Notes
offered hereby and, unless the context otherwise requires, any other debt
securities heretofore or hereafter issued under the Subordinated Indenture,
and the term "Notes" means the Notes offered hereby and, unless the context
otherwise requires, any other debt securities heretofore or hereafter issued
under the Indentures; and references to "principal" of the Notes shall be
deemed to include, unless the context otherwise requires, a reference to
premium, if any, on the Notes. Copies of the Indentures and the forms of the
Notes are filed or incorporated by reference as exhibits to the Registration
Statement. The following summaries of certain provisions of the Indentures and
the summary of certain provisions of a particular series of Notes set forth in
the Prospectus Supplement relating thereto do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indentures and the respective forms of the Notes, including
the definitions therein of certain terms. Whenever particular Sections,
Articles or defined terms of the Indentures are referred to, it is intended
that such Sections, Articles or defined terms shall be incorporated herein by
reference.
GENERAL
The Indentures do not limit the amount of debt securities which can be
issued thereunder and provide that debt securities of any series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by Wells Fargo. The Indentures do not limit the amount of other
indebtedness or securities which may be issued by Wells Fargo. The Notes may
be issued at various times with different maturity dates and different
principal repayment provisions, may bear interest at different rates, may be
payable in currencies other than United States dollars, in composite
currencies or in amounts determined by reference to an index and may otherwise
vary, all as provided in the Indentures.
The Prospectus Supplement will set forth the following specific terms
regarding the series of Notes offered thereby: (i) the designation and
aggregate principal amount of Notes of such series; (ii) the ranking of the
Notes as Senior Notes or Subordinated Notes; (iii) the percentage of their
principal amount at which such Notes will
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be issued; (iv) the date or dates on which such Notes will mature, if any; (v)
the rate per annum or the method of determining the rate or rates per annum,
if any, at which such Notes will bear interest; (vi) the dates from and on
which such interest, if any, will accrue and be payable and the designated
record dates for such interest payments; (vii) the currency (which may be a
composite currency) in which payment of principal and interest, if any, shall
be payable if other than United States dollars; (viii) the index, if any, upon
which the amount of principal or interest is determined; (ix) any redemption
terms; (x) any conversion or exchange provisions; (xi) provisions for issuance
of global securities; and (xii) other specific terms. If so indicated in the
applicable Prospectus Supplement, the terms of the Notes offered thereby may
differ from those set forth herein.
Some of the Notes may be issued as discounted Notes (bearing no interest or
interest at a rate which at the time of issuance is below market rates) to be
sold at a discount below their stated principal amount. Some of the Notes may
be perpetual and have no stated maturity. Federal income tax consequences and
other special considerations applicable to such perpetual or discounted Notes
will be described in the Prospectus Supplement relating thereto.
Interest on the Notes of any series will be payable to the persons in whose
names the Notes are registered at the close of business on the record date
designated for an interest payment date (Section 2.03). The Notes may be
presented for the payment of principal and interest, if any, transfer and
exchange at the offices or agencies of Wells Fargo maintained for such
purposes in San Francisco and New York City. Payment of any installment of
interest may be made at the option of Wells Fargo by check, mailed to the
address of the person entitled thereto as it appears on the Register of the
Notes of such series (Sections 2.05, 4.01 and 4.02). The Notes will be issued
in fully registered form, without coupons, in denominations of $1,000 and any
whole multiple of $1,000, unless different authorized denominations are stated
in the Prospectus Supplement. No service charge will be made for any exchange
or registration of transfer of a Note, but Wells Fargo may require payment of
a sum sufficient to cover any tax or other governmental charge (Section 2.05).
The Indentures provide that if a series of Notes is denominated in a currency
other than United States dollars or in a composite currency, in the absence of
a contrary provision in the Notes any action or distribution under the
Indentures will be based on the relative amount of United States dollars that
could be obtained on such reasonable basis of exchange on such date as is
specified by Wells Fargo to the Trustee (Sections 14.10 of the Senior
Indenture and 16.10 of the Subordinated Indenture).
All of the Notes will be unsecured general obligations of Wells Fargo. The
Senior Notes will not be subordinated in right of payment to any other
indebtedness of Wells Fargo. Unless otherwise set forth in the applicable
Prospectus Supplement, neither the Indentures nor the Notes contain provisions
which would afford holders of the Notes protection in the event of a takeover,
recapitalization or similar restructuring involving Wells Fargo which could
adversely affect the Notes.
SUBORDINATION OF SUBORDINATED NOTES
The obligation of Wells Fargo to make any payment on account of the
principal of and interest on the Subordinated Notes of any series will be
subordinate and junior in right of payment to Wells Fargo's obligations to the
holders of Senior Indebtedness of Wells Fargo to the extent described in the
next paragraph. Senior Indebtedness of Wells Fargo includes the Senior Notes
and means (i) any indebtedness of Wells Fargo for borrowed or purchased money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) obligations under letters of credit, (iii) any indebtedness
or other obligations of Wells Fargo with respect to commodity contracts,
interest rate and currency swap agreements, cap, floor and collar agreements,
currency spot and forward contracts, and other similar agreements or
arrangements designed to protect against fluctuations in currency exchange or
interest rates, and (iv) any guarantees, endorsements (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business) or other similar contingent obligations in respect of obligations of
others of a type described in (i), (ii) or (iii) above, whether or not such
obligation is classified as a liability on a balance sheet prepared in
accordance with generally accepted accounting principles, in each case listed
in (i), (ii), (iii) and (iv) above, whether outstanding on the date of
execution of the Subordinated Indenture or thereafter incurred, other than
obligations "ranking on a parity" with
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the Subordinated Notes or "ranking junior" to the Subordinated Notes (as those
terms are defined in the Subordinated Indenture) (Section 1.01). The
definition of senior indebtedness in certain previously issued subordinated
debt of Wells Fargo (the "Prior Subordinated Debt", which term excludes any
Subordinated Notes issued under the Subordinated Indenture) includes only
indebtedness of or guaranteed by Wells Fargo for borrowed money and any
deferred obligation for the payment of the purchase price of property or
assets, other than obligations ranking on a parity with or junior to such
subordinated indebtedness. As a result of this difference, the holders of
Subordinated Notes are subordinated to greater amounts of senior indebtedness
of Wells Fargo than holders of such Prior Subordinated Debt and, under the
circumstances described in the following paragraph, holders of Subordinated
Notes may receive less, ratably, than holders of such Prior Subordinated Debt.
As of June 30, 1998, there was $1.6 billion of Senior Indebtedness of Wells
Fargo and $2.7 billion of obligations ranking on a parity (as defined in the
Subordinated Indenture) with the Subordinated Notes. The Subordinated
Indenture does not limit the amount of Senior Indebtedness of Wells Fargo.
In the case of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to Wells
Fargo as a whole, whether voluntary or involuntary, all obligations of Wells
Fargo to holders of Senior Indebtedness of Wells Fargo shall be entitled to be
paid in full before any payment shall be made on account of the principal of
or interest on the Subordinated Notes. In the event of any such proceeding,
after payment in full of all sums owing with respect to Senior Indebtedness of
Wells Fargo, the holders of the Subordinated Notes, together with the holders
of any obligations of Wells Fargo ranking on a parity with the Subordinated
Notes, shall be entitled to be paid from the remaining assets of Wells Fargo
the amounts at the time due and owing on account of unpaid principal of and
interest on the Subordinated Notes before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any
capital stock or any obligations of Wells Fargo ranking junior to the
Subordinated Notes (Section 14.01). By reason of such subordination, in the
event of the insolvency of Wells Fargo, holders of Senior Indebtedness of
Wells Fargo may receive more, ratably, and holders of the Subordinated Notes
having a claim pursuant to the Subordinated Notes may receive less, ratably,
than the other creditors of Wells Fargo. Such subordination will not prevent
the occurrence of any Event of Default in respect of the Subordinated Notes
(Section 14.10).
GLOBAL SECURITIES
The Notes of a series may be issued in whole or in part in the form of one
or more global securities ("Global Security") that will be deposited with, or
on behalf of, a depositary identified in the Prospectus Supplement relating to
such series. Global Securities will be issued in registered form and in either
temporary or definitive form. Unless and until it is exchanged in whole or in
part for Notes in definitive form, a Global Security may not be transferred
except as a whole by the depositary for such Global Security to a nominee of
such depositary or by a nominee of such depositary to such depositary or
another nominee of such depositary or by such depositary or any such nominee
to a successor of such depositary or a nominee of such successor (Sections
2.02 and 2.05).
The specific terms of the depositary arrangement with respect to any Notes
of a series will be described in the Prospectus Supplement relating to such
series. Wells Fargo anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Notes represented by such Global Security
to the accounts of institutions that have accounts with such depositary
("Participants"). The accounts to be credited shall be designated by the
underwriters of such Notes, by certain agents of Wells Fargo or by Wells
Fargo, if such Notes are offered and sold directly by Wells Fargo. Ownership
of beneficial interests in a Global Security will be limited to Participants
or persons that may hold interests through Participants. Ownership of
beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the depositary with respect to Participants' interests in such Global
Security or by Participants or by persons that hold through Participants with
respect to beneficial owners'
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interests. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
ownership limits and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the depositary for a Global Security, or its nominee, is the
holder of such Global Security, such depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Notes represented
by such Global Security for all purposes under the Indenture governing such
Notes. Except as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Notes of the series represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Notes of such series in definitive form and will
not be considered the owners or holders thereof under the Indenture governing
such Notes.
Principal and interest payments on Notes registered in the name of or held
by a depositary or its nominee will be made to the depositary or its nominee,
as the case may be, as the registered owner of the Global Security
representing such Notes. Wells Fargo expects that the depositary for Notes of
a series, upon receipt of any payment of principal or interest in respect of a
Global Security, will immediately credit Participants' accounts with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of such
depositary. Wells Fargo also expects that payments by Participants or persons
who hold interests through Participants to owners of beneficial interests in
such Global Security held through such Participants or persons will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such
Participants or persons. None of Wells Fargo, the Trustee for such Notes, any
paying agent or any registrar for such Notes will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Security for such Notes
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
If a depositary for Notes of a series is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by Wells
Fargo within 90 days, Wells Fargo will issue Notes of such series in
definitive form in exchange for the Global Security or Securities representing
the Notes of such series. In addition, Wells Fargo may at any time and in its
sole discretion determine not to have any Notes of a series represented by one
or more Global Securities and, in such event, will issue Notes of such series
in definitive form in exchange for the Global Security or Securities
representing such Notes.
CONVERSION AND EXCHANGE
The terms, if any, on which Notes of any series are convertible into or
exchangeable for Common Stock or Preferred Stock will be set forth in the
Prospectus Supplement relating thereto. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder, or at
the option of Wells Fargo, in which the number of shares of Common Stock or
Preferred Stock to be received by the holders of Notes would be calculated
according to the market price of Common Stock or Preferred Stock as of a time
stated in the Prospectus Supplement.
LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OR CONVERTIBLE SECURITIES OF,
AND MERGER OR SALE OF ASSETS BY, THE BANK
The Senior Indenture contains a covenant that (i) Wells Fargo will not, and
will not permit the Bank to issue, sell, transfer, assign, pledge or otherwise
dispose of any shares of Capital Stock of any class of the Bank or any
securities convertible or exchangeable into shares of Capital Stock of any
class of the Bank, unless, after giving effect to such transaction and to
shares issuable upon conversion or exchange of outstanding securities
convertible or exchangeable into such Capital Stock (including such
securities, if any, which may be the subject of such transaction), at least
80% of the outstanding shares of Capital Stock of each class of the Bank shall
be owned at that time directly or indirectly by Wells Fargo; and (ii) Wells
Fargo will not permit the Bank to merge
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or consolidate or convey or transfer all or substantially all of its assets,
unless at least 80% of the outstanding shares of Capital Stock of each class
(after giving effect to such transaction and to shares issuable upon
conversion or exchange of outstanding securities convertible or exchangeable
into Capital Stock, including such securities, if any, which may be issued in
such transaction) of the surviving corporation in the case of merger or
consolidation or of the transferee corporation in the case of a conveyance or
transfer shall be owned at that time directly or indirectly by Wells Fargo
(Section 4.07 of the Senior Indenture). There is no similar covenant in the
Subordinated Indenture.
EVENTS OF DEFAULT
An Event of Default with respect to any series of Senior Notes is defined in
the Senior Indenture as being: (a) default for 30 days in payment of any
installment of interest on Senior Notes of such series; (b) default in payment
of any principal on Senior Notes of such series; (c) default by Wells Fargo in
performance in any material respect of any of the covenants or agreements in
the Senior Notes or in the Senior Indenture specifically contained therein for
the benefit of the Senior Notes of such series which shall not have been
remedied for a period of 90 days after written notice to Wells Fargo by the
Trustee or to Wells Fargo and the Trustee by the holders of not less than 25%
in principal amount of the Senior Notes of such series and all other series so
benefited (all such series voting as one class) then outstanding; or (d)
certain events of bankruptcy, insolvency or reorganization of Wells Fargo or
of the Bank (Section 6.01 of the Senior Indenture). No Event of Default
described in clause (a), (b) or (c) above with respect to a particular series
of Senior Notes necessarily constitutes an Event of Default with respect to
any other series of Senior Notes. In addition, the Senior Indenture also
defines an Event of Default with respect to any series of Senior Notes as
being default in the payment of any indebtedness for borrowed money of Wells
Fargo (including a default with respect to Senior Notes of any series other
than such series) or of the Bank in principal amount in excess of $1,000,000
and the expiration of any period of grace with respect thereto, or the
occurrence of any event of default as defined in any mortgage, indenture or
instrument (including the Senior Indenture) evidencing, securing or under
which there is issued any indebtedness for borrowed money of Wells Fargo or of
the Bank in principal amount in excess of $1,000,000 that results in the
acceleration of such indebtedness, and such default in payment is not cured or
such acceleration is not rescinded or annulled within 10 days after written
notice to Wells Fargo by the Trustee or to Wells Fargo and the Trustee by the
holders of not less than 25% in principal amount of all Senior Notes then
outstanding (all series voting as one class), provided that so long as Wells
Fargo or the Bank, as the case may be, is contesting in good faith such
default in payment or event of default and Wells Fargo delivers to the Trustee
a certificate that Wells Fargo or the Bank, as the case may be, is contesting
in good faith the existence of such payment default or event of default, then
no Event of Default shall be deemed to exist under this clause; such Event of
Default is herein called a "Cross Default."
The Senior Indenture provides that if an Event of Default under clause (a),
(b) or (c) above shall have occurred and be continuing (but only if, in the
case of clause (c), the Event of Default is with respect to less than all
series of Senior Notes then outstanding under such Indenture), either the
Trustee or the holders of not less than 25% in principal amount of the then
outstanding Senior Notes of the series as to which the Event of Default has
occurred (each such series voting as a separate class in the case of an Event
of Default under clause (a) or (b), and all such series voting as one class in
the case of an Event of Default under clause (c)) may declare the principal
(or portion thereof specified in the terms of such series) of all the Senior
Notes of such series, or of all such series in the case of an Event of Default
under clause (c) above, in each case together with any accrued interest, to be
due and payable immediately. The Senior Indenture also provides that if an
Event of Default under clause (c) or (d) above or the Cross Default clause
shall have occurred and be continuing (but only if, in the case of clause (c),
the Event of Default is with respect to all the Senior Notes then outstanding
under the Senior Indenture), either the Trustee or the holders of not less
than 25% in principal amount of all the Senior Notes then outstanding (voting
as one class) may declare the principal (or portion thereof specified in the
terms of any series) of all the Senior Notes, together with any accrued
interest, to be due and payable immediately. Upon certain conditions, such
declaration (including a declaration caused by a default in the payment of
principal or interest, the payment for which has subsequently been provided)
may be annulled by the holders of a majority in
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principal amount of the Senior Notes of the series then outstanding as were
entitled to declare such default (such series or all series voting as one
class, if more than one series is so entitled). In addition, past defaults may
be waived by the holders of a majority in principal amount of the Senior Notes
of all series then outstanding (all series voting as one class), except a
default in the payment of principal of or interest on the Senior Notes or in
respect of a covenant or provision of the Senior Indenture which cannot be
modified or amended without the consent of the holder of each Senior Note so
affected (Sections 6.01 and 6.06 of the Senior Indenture).
An Event of Default with respect to any series of Subordinated Notes is
defined in the Subordinated Indenture as being: (a) default for 30 days in
payment of any installment of interest on Subordinated Notes of such series;
(b) default in payment of any principal on Subordinated Notes of such series;
(c) default by Wells Fargo in performance in any material respect of any of
the covenants or agreements in the Subordinated Notes or in the Subordinated
Indenture specifically contained therein for the benefit of the Subordinated
Notes of such series which shall not have been remedied for a period of 90
days after written notice to Wells Fargo by the Trustee or to Wells Fargo and
the Trustee by the holders of not less than 25% in principal amount of the
Subordinated Notes of such series and all other series so benefited (all such
series voting as one class) then outstanding; or (d) certain events of
bankruptcy, insolvency or reorganization of Wells Fargo or the Bank (Section
6.01 of the Subordinated Indenture). No Event of Default described in clause
(a), (b) or (c) above with respect to a particular series of Subordinated
Notes necessarily constitutes an Event of Default with respect to any other
series of Subordinated Notes. No Event of Default described in clause (a), (b)
or (c) above permits acceleration of the payment of principal of the
Subordinated Notes. The Subordinated Indenture provides that if an Event of
Default under clause (d) above shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all the
then outstanding Subordinated Notes of each series as to which such Event of
Default has occurred (voting as one class) may declare the principal (or a
portion thereof specified in the terms of any series) of all Subordinated
Notes as to which such Event of Default under clause (d) has occurred,
together with any accrued interest, to be due and payable immediately. Upon
certain conditions, such declaration may be annulled by a majority in
principal amount of the Subordinated Notes of the series then outstanding as
were entitled to declare such Event of Default (such series or all series
voting as one class, if more than one series is so entitled). In addition,
past defaults may be waived by the holders of a majority in principal amount
of the Subordinated Notes of all series then outstanding as to which the
default has occurred (all series voting as one class), except a default in the
payment of principal or interest on any such Subordinated Notes or in respect
of a covenant or provision of the Subordinated Indenture which cannot be
modified or amended without the consent of the holder of each Subordinated
Note so affected (Sections 6.01 and 6.06 of the Subordinated Indenture).
As a result of the provisions stated in the prior paragraph, the
Subordinated Indenture does not provide for any right to accelerate the
payment of principal of the Subordinated Notes upon a default in payment of
principal or interest or in the performance of any covenant or agreement in
the Subordinated Notes or the Subordinated Indenture, or upon a default in the
payment or acceleration of other indebtedness of Wells Fargo. In the case of a
default in the payment of principal or interest, the Trustee, subject to
certain limitations and conditions, may institute judicial proceedings to
enforce payment of such principal or interest (Section 6.02 of the
Subordinated Indenture).
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care,
to be indemnified by the holders of Notes issued under such Indenture before
proceeding to exercise any right or power under the Indenture at the request
of such holders (Section 7.02). Each Indenture also provides that the holders
of a majority in principal amount of the outstanding Notes issued thereunder
of all series affected (voting as one class) may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Notes of such series (Section 6.06).
Each Indenture contains a covenant that Wells Fargo will file annually with
the Trustee a certificate as to the absence of any default or specifying any
default that exists (Section 4.06).
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MODIFICATION OF THE INDENTURE AND WAIVER
Each Indenture contains provisions permitting Wells Fargo and the Trustee,
with the consent of the holders of not less than 66 2/3% in principal amount
of the Notes of all series then outstanding under such Indenture affected by
such supplemental indenture (voting as one class), to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of such Indenture or modifying the rights of the holders of Notes
of each such series, except that no such supplemental indenture may (i) extend
the fixed maturity of any Notes, or reduce the rate or extend the time of
payment of any interest thereon or on any overdue principal amount, or reduce
the principal amount thereof, or reduce any amount payable upon any redemption
thereof, or change the currency of payment of principal of or any interest
thereon or on any overdue principal amount, without the consent of the holder
of each Note so affected, or (ii) reduce the aforesaid percentage of Notes,
the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all outstanding Notes under
such Indenture (Section 10.02).
Each Indenture provides that Wells Fargo may omit in any particular instance
to comply with any covenant or condition specifically contained in such
Indenture for the benefit of one or more series of Notes (including in the
case of the Senior Indenture, the covenant described above under "Limitation
on Sale or Issuance of Capital Stock or Convertible Securities of, and Merger
or Sale of Assets by, the Bank") if before the time for such compliance the
holders of a majority in principal amount of the Notes of all series then
outstanding under such Indenture, and, in the case of the Subordinated
Indenture, affected by the omission (voting as one class) waive such
compliance in such instance, but such waiver shall not extend to or affect
such covenant or condition except to the extent so expressly waived (Section
4.08 of the Senior Indenture and Section 4.07 of the Subordinated Indenture).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that Wells Fargo may not merge or consolidate or
sell or convey all or substantially all of its assets unless the successor
corporation (if other than Wells Fargo) is a domestic corporation, assumes
Wells Fargo's obligations under such Indenture and on the Notes issued under
such Indenture, and, after giving effect to such transaction, Wells Fargo or
the successor corporation would not be in default under such Indenture
(Section 11.01).
CONCERNING THE TRUSTEES
The Chase Manhattan Bank (formerly known as Chemical Bank) is the successor
Trustee under the Senior Indenture. Notices to the Senior Trustee should be
directed to The Chase Manhattan Bank, Corporate Trust Department, 450 West
33rd Street, New York, New York 10001, Attention: Vice President. Wells Fargo
and the Bank maintain deposit accounts and conduct other banking transactions
with the Senior Trustee in the ordinary course of business. Marine Midland
Bank is the Trustee under the Subordinated Indenture. Notices to the
Subordinated Trustee should be directed to Marine Midland Bank, 140 Broadway,
New York, New York 10015, Attention: Vice President--Corporate Trust
Administration. The Bank has entered into correspondent banking relationships
with the Subordinated Trustee and with its corporate parent, The Hong Kong and
Shanghai Banking Corporation Limited ("HSBC"), involving various banking
transactions in the ordinary course of business. As part of their
relationship, the Bank and HSBC have an arrangement providing for the referral
of customers to each other. Wells Fargo and the parent of HSBC established a
jointly owned trade bank called Wells Fargo HSBC Trade Bank.
DESCRIPTION OF PREFERRED STOCK
The following description of Preferred Stock sets forth certain general
terms and provisions of the series of Preferred Stock to which any Prospectus
Supplement may relate. The specific terms of a particular series of Preferred
Stock will be described in the Prospectus Supplement relating to such series
of Preferred Stock. If so indicated in the Prospectus Supplement relating
thereto, the terms of any such series of Preferred Stock may
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differ from the terms set forth below. The description of Preferred Stock set
forth below and the description of the terms of a particular series of
Preferred Stock set forth in the Prospectus Supplement relating thereto do not
purport to be complete and are qualified in their entirety by reference to
Wells Fargo's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and the Certificate of Designation relating
to such series of Preferred Stock, which are filed or incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part.
GENERAL
Wells Fargo is authorized to issue 25,000,000 shares of Preferred Stock. The
Board of Directors has the authority to issue Preferred Stock in one or more
series and to fix the specific number of shares, title, liquidation preference
of each share, issue price, dividend rate or rates (or method of calculation),
dividend periods, dividend payment dates, any redemption or sinking fund
provisions, any conversion provisions and any other specific terms of any
series without any further action by stockholders of Wells Fargo unless action
is required by applicable laws or regulations or by the terms of other
outstanding preferred stock. As of the date of this Prospectus, Wells Fargo
had two series of Preferred Stock outstanding consisting of 1,500,000 shares
of Adjustable Rate Cumulative Preferred Stock, Series B ("Adjustable Rate
Preferred Stock") and 4,000,000 shares of Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series H ("Series H Preferred Stock"). Each outstanding
series of Preferred Stock has a liquidation preference of $50 per share. See
"Description of Capital Stock--Existing Preferred Stock." Unless otherwise
specified in the Prospectus Supplement relating thereto, the shares of each
series of Preferred Stock will rank on a parity as to dividends and
distributions of assets with each other and with the Adjustable Rate Preferred
Stock and the Series H Preferred Stock.
The Prospectus Supplement will set forth the following specific terms
regarding the series of Preferred Stock offered thereby: (i) the designation,
number of shares and liquidation preference per share; (ii) the initial public
offering price; (iii) the dividend rate or rates, or the method of determining
the dividend rate or rates; (iv) the index, if any, upon which the amount of
dividends, if any, is determined; (v) the dates on which dividends, if any,
will accrue and be payable and the designated record dates for determining the
holders entitled to such dividends; (vi) any redemption or sinking fund
provisions; (vii) any conversion or exchange provisions; (viii) whether Wells
Fargo has elected to offer Depositary Shares as described under "Description
of Depositary Shares"; (ix) provisions for issuance of global securities; (x)
the currency (which may be composite currency) in which payment of dividends,
if any, shall be payable if other than United States dollars; (xi) voting
rights, if different from those described under "Description of Preferred
Stock--Voting Rights"; and (xii) any additional terms, preferences or rights.
As described under "Description of Depositary Shares," Wells Fargo may, at
its option, elect to offer depositary shares ("Depositary Shares") evidenced
by depositary receipts ("Depositary Receipts"), each representing a fractional
interest (to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the particular series
of the Preferred Stock issued and deposited with a Depositary (as defined
below).
Under regulations adopted by the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board"), if the holders of shares of any series
of preferred stock of Wells Fargo become entitled to vote for the election of
directors because the Board of Directors of Wells Fargo has failed to declare
or pay dividends on such series (see "Description of Preferred Stock Voting
Rights"), such series may then be deemed a class of "voting securities" and a
holder of 25 percent or more of such series (or a holder of five percent or
more if it otherwise exercises a "controlling influence" over Wells Fargo) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as
such series is deemed a class of voting securities, any other bank holding
company may be required to obtain the prior approval of the Federal Reserve
Board to acquire five percent or more of such series and any person other than
a bank holding company may be required to obtain the prior approval of the
Federal Reserve Board to acquire ten percent or more of such series.
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The shares of Preferred Stock will, when issued, be fully paid and
nonassessable and will have no preemptive rights.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for the Preferred Stock will be specified in the Prospectus Supplement
relating thereto.
DIVIDENDS
The holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of Wells Fargo,
out of funds legally available therefor, cumulative or noncumulative cash or
other dividends at such rate or rates and on such dates as will be set forth
in the Prospectus Supplement relating to such series. Such rates may be fixed
or variable or both. If variable, the formula used for determining the
dividend rate for each dividend period will be set forth in the Prospectus
Supplement. Dividends will be payable to the holders of record as they appear
on the stock books of Wells Fargo on such record dates as will be fixed by the
Board of Directors of Wells Fargo and specified in the Prospectus Supplement.
If the Board of Directors of Wells Fargo fails to declare a dividend payable
on a dividend payment date on any series of the Preferred Stock for which
dividends are noncumulative ("Noncumulative Preferred Stock"), then the
holders of such series of the Preferred Stock will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and Wells Fargo will have no obligation to pay a dividend for such
period, whether or not dividends on such series are declared payable on any
future dividend payment dates.
No dividends may be declared in respect of any dividend period on any other
series or class of preferred stock ranking on a parity as to dividends with
the Preferred Stock or Adjustable Rate Preferred Stock unless full cumulative
dividends on all outstanding shares of each series of Preferred Stock on which
dividends are cumulative and on the Adjustable Rate Preferred Stock shall have
been paid in full or contemporaneously are declared and paid through the most
recent dividend payment date, unless otherwise indicated in the Prospectus
Supplement. In the event that full cumulative dividends on such Preferred
Stock or Adjustable Rate Preferred Stock have not been declared and paid or
set apart when due, Wells Fargo may not declare or pay any dividends on, or
make other distributions on or make any payment on account of the purchase,
redemption, or other retirement, of its Common Stock or any other stock of
Wells Fargo ranking as to dividends or upon liquidation junior to such
Preferred Stock or Adjustable Rate Preferred Stock (other than, in the case of
dividends or distributions, dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Common
Stock or such other junior ranking stock), until full cumulative dividends on
such Preferred Stock and Adjustable Rate Preferred Stock are made or set apart
for payment, unless otherwise indicated in the Prospectus Supplement.
When dividends are not paid in full upon any series of Preferred Stock, the
Adjustable Rate Preferred Stock, the Series H Preferred Stock and any other
preferred stock ranking on a parity therewith, all dividends declared or made
upon shares of Preferred Stock, Adjustable Rate Preferred Stock, Series H
Preferred Stock and any other series of preferred stock ranking on a parity
therewith shall be declared pro rata so that the amount of dividends declared
per share on Preferred Stock, Adjustable Rate Preferred Stock, Series H
Preferred Stock and such other preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share (which, in the case of
Noncumulative Preferred Stock and Series H Preferred Stock shall not include
any accumulation in respect of unpaid dividends for prior dividend periods) on
shares of each series of the Preferred Stock, Adjustable Rate Preferred Stock,
Series H Preferred Stock and such other preferred stock bear to each other. No
interest shall be payable in respect of any dividend payment which may be in
arrears unless otherwise indicated in the Prospectus Supplement.
REDEMPTION
The shares of any series of Preferred Stock may be redeemable at the option
of Wells Fargo and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, in each case upon the terms, on the
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date or dates and at the redemption price or prices set forth in the
Prospectus Supplement relating to such series. If fewer than all shares of
Preferred Stock are to be redeemed, the shares to be redeemed shall be
selected by Wells Fargo pro rata or by lot, or by any other method determined
by the Board of Directors to be equitable.
Under regulations of the Federal Reserve Board, any perpetual preferred
stock with a feature permitting redemption at the option of the issuer may
qualify as capital only if the redemption is subject to prior approval of the
Federal Reserve Board. Therefore, any redemption of Preferred Stock at the
option of Wells Fargo will require the prior approval of the Federal Reserve
Board in order for the Preferred Stock to qualify as capital for bank
regulatory purposes.
If any dividends on shares of any series of Preferred Stock are in arrears,
no shares of Common Stock or shares of capital stock ranking junior to or on
parity with the Preferred Stock shall be redeemed and no shares of such series
of Preferred Stock shall be redeemed unless all outstanding shares of such
series are simultaneously redeemed, and Wells Fargo shall not purchase or
otherwise acquire any shares of such series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of such
series pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of such series.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 40 nor more than 70 days
prior to the date fixed for redemption thereof (and, in the case of Adjustable
Rate Preferred Stock and Series H Preferred Stock, not less than 30 nor more
than 60 days' notice), to the respective addresses of such holders as the same
shall appear on Wells Fargo's stock books. Each such notice shall state: (i)
the redemption date; (ii) the number of shares and series of the Preferred
Stock to be redeemed; (iii) the redemption price and the manner in which such
redemption price is to be paid and delivered; (iv) the place or places where
certificates for such shares of Preferred Stock are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If fewer than all
shares of any series of the Preferred Stock held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Stock called for redemption
(unless default shall be made by Wells Fargo in providing money for the
payment of the redemption price of the shares so called for redemption),
dividends on the shares of Preferred Stock so called for redemption will cease
to accrue, any right to convert the shares of Preferred Stock will terminate,
such shares will no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of Wells Fargo (except the right to receive
the redemption price) will cease. Upon surrender in accordance with such
notice of the certificates representing any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of Wells Fargo
will so require and the notice shall so state), the redemption price set forth
above will be paid out of funds provided by Wells Fargo. If fewer than all of
the shares represented by any such certificate are redeemed, a new certificate
will be issued representing the unredeemed shares without cost to the holder
thereof.
LIQUIDATION PREFERENCE
Upon any liquidation, dissolution or winding up of Wells Fargo, the holders
of shares of each series of Preferred Stock and of Adjustable Rate Preferred
Stock and Series H Preferred Stock shall be entitled to receive out of the
assets of Wells Fargo available for distribution to stockholders, before any
distribution of assets is made to or set apart for the holders of Common Stock
or of any other shares of stock of Wells Fargo ranking as to such a
distribution junior to the shares of such series, with respect to the
Preferred Stock, an amount described in the Prospectus Supplement relating to
such series of Preferred Stock, and with respect to Adjustable Rate Preferred
Stock and Series H Preferred Stock, an amount equal to the liquidation value
of such shares. See "Description of Capital Stock--Existing Preferred Stock."
If, in any case of any such liquidation, dissolution or winding up of Wells
Fargo, the assets of Wells Fargo or the proceeds thereof shall be insufficient
to pay in full the amounts payable with respect to shares of each series of
Preferred Stock and of Adjustable Rate Preferred Stock and Series H Preferred
Stock and any other shares of stock of Wells Fargo ranking as to any such
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distribution on a parity therewith, the holders of shares of such series of
Preferred Stock and of Adjustable Rate Preferred Stock and Series H Preferred
Stock and of such other shares will share ratably in any such distribution of
assets of Wells Fargo in proportion to the full respective preferential
amounts to which they are entitled. After payment to the holders of shares of
such series of Preferred Stock and of Adjustable Rate Preferred Stock and
Series H Preferred Stock of the full preferential amounts to which they are
entitled, the holders of shares of such series of Preferred Stock and of
Adjustable Rate Preferred Stock and Series H Preferred Stock will not be
entitled to any further participation in any distribution of assets by Wells
Fargo, unless otherwise provided in the Prospectus Supplement. A consolidation
or merger of Wells Fargo with one or more corporations shall not be deemed to
be a liquidation, dissolution or winding up of Wells Fargo.
CONVERSION AND EXCHANGE
The terms, if any, on which shares of any series of Preferred Stock are
convertible into or exchangeable for Notes or Common Stock will be set forth
in the Prospectus Supplement relating thereto. Such terms may include
provisions for conversion or exchange, either mandatory, at the option of the
holder, or at the option of Wells Fargo, in which the number of shares of
Common Stock to be received by the holders of Preferred Stock would be
calculated according to the market price of Common Stock as of a time stated
in the Prospectus Supplement.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as expressly required by
applicable law, the holders of Preferred Stock will not be entitled to vote.
On matters on which holders of such series and holders of any other series
of Preferred Stock are entitled to vote as a single class, each full share of
any series of the Preferred Stock shall be entitled to one vote. Therefore,
the voting power of such series will depend on the number of shares in such
series, not the liquidation preference or initial offering price of the shares
of such series of the Preferred Stock. However, as more fully described under
"Description of Depositary Shares," if Wells Fargo elects to provide for the
issuance of Depositary Shares representing fractional interests in a share of
a series of the Preferred Stock, the holders of each such Depositary Share
will, in effect, be entitled through the Depositary to such fraction of a
vote, rather than a full vote. To the extent the Depositary does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock, it will vote such shares of Preferred Stock in accordance
with the recommendation of Wells Fargo, unless otherwise indicated in the
Prospectus Supplement.
Whenever the Board of Directors shall have failed to declare and pay
dividends on a series of Preferred Stock, Adjustable Rate Preferred Stock or
Series H Preferred Stock for dividend periods, whether or not consecutive,
containing in the aggregate a number of days equivalent to six calendar
quarters, the holders of such series of Preferred Stock, Adjustable Rate
Preferred Stock or Series H Preferred Stock (voting as a class with all other
affected series of Preferred Stock, Adjustable Rate Preferred Stock and Series
H Preferred Stock ranking on a parity therewith either as to dividends or the
distribution of assets upon liquidation and upon which like voting rights have
been conferred and are exercisable) will be entitled to vote for the election
of two of the authorized number of directors of Wells Fargo at the next annual
meeting of stockholders and at each subsequent meeting until all dividends
which the Board of Directors failed to declare or pay on such series of
Preferred Stock, Adjustable Rate Preferred Stock or Series H Preferred Stock
have been fully paid or set apart for payment. In addition, under such
circumstances, certain holders of Preferred Stock, Adjustable Rate Preferred
Stock and Series H Preferred Stock may become subject to regulation as a bank
holding company. See "Description of Preferred Stock--General." The term of
office of all directors elected by the holders of Preferred Stock, Adjustable
Rate Preferred Stock and Series H Preferred Stock shall terminate immediately
upon the termination of the right of the holders of Preferred Stock,
Adjustable Rate Preferred Stock and Series H Preferred Stock to vote for
directors.
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So long as any shares of Preferred Stock, Adjustable Rate Preferred Stock
and Series H Preferred Stock remain outstanding, Wells Fargo shall not,
without the consent of the holders of at least two-thirds of the shares of the
affected series of Preferred Stock, Adjustable Rate Preferred Stock and Series
H Preferred Stock outstanding at the time (voting separately as a class with
all other affected series of Preferred Stock ranking on a parity with the
affected series of Preferred Stock, Adjustable Rate Preferred Stock and Series
H Preferred Stock), (i) authorize, create or issue, or increase the authorized
amount of, any class or series of stock ranking prior to the affected series
of Preferred Stock, Adjustable Rate Preferred Stock and Series H Preferred
Stock as to dividends or upon liquidation; or (ii) amend, alter or repeal the
provisions of Wells Fargo's Restated Certificate of Incorporation, whether by
merger, consolidation or otherwise, so as to materially and adversely affect
any right, preference, privilege or voting power of the affected series of
Preferred Stock, Adjustable Rate Preferred Stock or Series H Preferred Stock
or the holders thereof; provided, however, that any increase in the amount of
the authorized Common Stock or authorized Preferred Stock or the creation and
issuance of other series of common stock or preferred stock ranking on a
parity with or junior to the affected series of Preferred Stock, Adjustable
Rate Preferred Stock or Series H Preferred Stock as to dividends and upon
liquidation shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to, and qualified in its entirety by reference to, the form of Deposit
Agreement and form of Depositary Receipts relating to each series of the
Preferred Stock which are filed with the Commission as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
Wells Fargo may, at its option, elect to offer fractional interests in
shares of Preferred Stock. The shares of any series of the Preferred Stock
underlying the Depositary Shares will be deposited under a separate Deposit
Agreement (the "Deposit Agreement") between Wells Fargo and a bank or trust
company selected by Wells Fargo (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and address
of the Depositary. Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share will be entitled, in proportion to the applicable
fractional interest in a share of Preferred Stock underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock underlying
such Depositary Share (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the fractional
interest in a share of a particular series of the Preferred Stock described in
the Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
Depositary Shares is not entitled to receive the whole shares of Preferred
Stock underlying the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
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make such distribution, in which case the Depositary may, with the approval of
Wells Fargo, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights offered by Wells Fargo to holders of
the Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share payable with respect to such series of the
Preferred Stock. If less than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by lot or pro rata as
may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares. Any funds deposited by Wells Fargo with the Depositary for
any Depositary Shares which the holders thereof fail to redeem shall be
returned to Wells Fargo after a period of two years from the date such funds
are so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and Wells Fargo will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. To the extent the
Depositary does not receive specific instructions from the holders of
Depositary Shares relating to such Preferred Stock, it will vote shares of
Preferred Stock in accordance with the recommendation of Wells Fargo, unless
otherwise indicated in the Prospectus Supplement.
AMENDMENT OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between Wells Fargo and the Depositary, provided, however, that any amendment
which materially and adversely alters the rights of the existing holder of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding.
CHARGES OF DEPOSITARY
Wells Fargo will pay all transfer and other taxes and governmental charges
that arise solely from the existence of the depositary arrangements. Wells
Fargo will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will pay all other transfer and other taxes and
governmental charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
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TAXATION
Owners of Depositary Shares will be treated for Federal income tax purposes
as if they were owners of the Preferred Stock represented by such Depositary
Shares and, accordingly, will be entitled to take into account for Federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Stock. In addition, (i) no gain or loss
will be recognized for Federal income tax purposes upon the withdrawal of
Preferred Stock in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each share of Preferred Stock to an
exchanging owner of Depositary Shares will, upon such exchange, be the same as
the aggregate tax basis of the Depositary Shares exchanged therefor, and (iii)
the holding period for shares of the Preferred Stock in the hands of an
exchanging owner of Depositary Shares who held such Depositary Shares at the
time of the exchange thereof for Preferred Stock will include the period
during which such person owned such Depositary Shares.
MISCELLANEOUS
Wells Fargo, or at the option of Wells Fargo, the Depositary, will forward
to the holders of Depositary Shares all reports and communications from Wells
Fargo which Wells Fargo is required to furnish to the holders of the Preferred
Stock.
Neither the Depositary nor Wells Fargo will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of Wells Fargo and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Stock unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares
or other persons believed to be competent and on documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to Wells Fargo notice of
its election to do so, and Wells Fargo may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary will be appointed by Wells Fargo within 60 days after delivery of
the notice of resignation or removal. The Deposit Agreement may be terminated
at the direction of Wells Fargo or by the Depositary if a period of 90 days
shall have expired after the Depositary has delivered to Wells Fargo written
notice of its election to resign and a successor depositary shall not have
been appointed. Upon termination of the Deposit Agreement, the Depositary will
discontinue the transfer of Depositary Receipts, will suspend the distribution
of dividends to the holders thereof, and will not give any further notices
(other than notice of such termination) or perform any further acts under the
Deposit Agreement except that the Depositary will continue to deliver
Preferred Stock certificates together with such dividends and distributions
and the net proceeds of any sales of rights, preferences, privileges or other
property in exchange for Depositary Receipts surrendered. Upon request of
Wells Fargo, the Depositary shall deliver all books, records, certificates
evidencing Preferred Stock, Depositary Receipts and other documents respecting
the subject matter of the Deposit Agreement to Wells Fargo.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Wells Fargo is authorized to issue 150,000,000 shares of Common Stock, par
value $5.00 per share, and 25,000,000 shares of preferred stock, par value
$5.00 per share.
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COMMON STOCK
Holders of Common Stock are entitled to one vote for each share of Common
Stock held. All outstanding shares of Common Stock are fully paid and
nonassessable.
Holders of Common Stock are entitled to receive such dividends as are
declared by the Board of Directors out of funds legally available therefor
subject to the limitations described below. In the event of liquidation,
holders of the Common Stock are entitled to receive pro rata any assets
distributable after payment of liabilities and the liquidation preference, if
any, on any shares of Preferred Stock then outstanding. There are no
conversion, preemptive or redemption rights of the Common Stock. The dividend
rights and liquidation preferences relating to the preferred stock are
superior to those relating to the Common Stock.
The transfer agent and registrar for the Common Stock is First Chicago Trust
Company of New York.
EXISTING PREFERRED STOCK
As of the date of this Prospectus, Wells Fargo had two series of preferred
stock outstanding, consisting of 1,500,000 shares of Adjustable Rate
Cumulative Preferred Stock, Series B (the "Adjustable Rate Preferred Stock")
and 4,000,000 shares of Fixed/Adjustable Rate Noncumulative Preferred Stock,
Series H (the "Series H Preferred Stock"). Each of the Adjustable Rate
Preferred Stock and Series H Preferred Stock has a liquidation preference of
$50 per share. Unless full dividends on any series of Preferred Stock,
Adjustable Rate Preferred Stock and Series H Preferred Stock have been paid,
Wells Fargo may not declare dividends on or make any other payment in respect
of any class of stock ranking junior to the Preferred Stock, Adjustable Rate
Preferred Stock or Series H Preferred Stock, including Common Stock. Except as
described below, if the Board of Directors fails to declare a dividend payable
on a dividend payment date on Series H Preferred Stock, then the holders of
Series H Preferred Stock will have no right to receive a dividend in respect
of the dividend period ending on such dividend payment date, and Wells Fargo
will have no obligation to pay a dividend for such period, whether or not
dividends on Series H Preferred Stock are declared payable on any future
dividend payment dates. Whenever the Board of Directors of Wells Fargo shall
have failed to declare and pay dividends on any series of Preferred Stock,
Adjustable Rate Preferred Stock or Series H Preferred Stock for dividend
periods, whether or not consecutive, containing in the aggregate a number of
days equivalent to six calendar quarters, the holders of such series of
Preferred Stock, Adjustable Rate Preferred Stock or Series H Preferred Stock
(voting as a class with all other affected series of Preferred Stock ranking
on a parity therewith either as to dividends or upon liquidation and upon
which like voting rights have been conferred and are exercisable) will be
entitled to vote for the election of two of the authorized number of directors
of Wells Fargo (in the case of Series H Preferred Stock, the maximum number of
authorized directors will be increased by two) at the next annual meeting of
stockholders and at each subsequent meeting until all dividends which the
Board of Directors failed to declare or pay on the affected series of
Preferred Stock, Adjustable Rate Preferred Stock or Series H Preferred Stock
have been fully paid or set apart for payment. The holders of Adjustable Rate
Preferred Stock and Series H Preferred Stock have preference and priority over
holders of any class of stock ranking junior to Adjustable Rate Preferred
Stock and Series H Preferred Stock, including Common Stock, in the event of
liquidation for payment of the liquidation preference of such Adjustable Rate
Preferred Stock and Series H Preferred Stock plus an amount equal to all
accrued and unpaid dividends thereon.
PLAN OF DISTRIBUTION
Wells Fargo may offer and sell the Offered Securities to one or more
underwriters for resale by them or through agents, or to investors directly.
The Prospectus Supplement with respect to each series of Offered Securities
will set forth the terms of the offering of the Offered Securities, including
the name or names of any underwriters or agents, the purchase price of the
Offered Securities and the net proceeds to Wells Fargo from such sale, any
underwriting discounts, agency fees and other items constituting underwriters'
or agents' compensation, any initial public offering price and any discounts
or concessions allowed, reallowed or paid to dealers.
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If any underwriters are involved in the offer and sale, the Offered
Securities will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Unless otherwise set forth in the accompanying Prospectus
Supplement, the obligations of the underwriters to purchase the Offered
Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Offered Securities
described in such Prospectus Supplement if any are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
In connection with an offering of Offered Securities, underwriters may
purchase and sell such Offered Securities in the open market. These
transactions may include over-allotment and stabilizing transactions and
purchases to cover short positions created by underwriters in connection with
the offering. Stabilizing transactions consist of certain bids or purchases
for the purpose of preventing or retarding a decline in the market price of
the securities; and short positions created by underwriters involve the sale
by underwriters of a greater number of Offered Securities than they are
required to purchase from Wells Fargo in the offering. Underwriters also may
impose a penalty bid, whereby selling concessions allowed to broker-dealers in
respect of the Offered Securities sold in the offering may be reclaimed by
underwriters if such Offered Securities are repurchased by underwriters in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the Offered Securities, which may be
higher than the price that might otherwise prevail in the open market; and
these activities, if commenced, may be discontinued at any time. These
transactions may be effected on the NYSE, in the over-the-counter market or
otherwise.
Underwriters and agents may be entitled, under agreements entered into with
Wells Fargo, to indemnification by Wells Fargo against certain liabilities,
including liabilities under the Securities Act.
Employees of the Bank may act as finders of purchasers of Offered
Securities. Their activities will be limited to contacting customers and
informing them of the terms of the Offered Securities offered by Wells Fargo.
Wells Fargo believes that such persons are not required to be registered as
brokers or dealers under Section 3(a)(4) and 3(a)(5) of the Exchange Act since
they are acting as employees on behalf of a bank.
LEGAL OPINIONS
The legality of the Offered Securities offered hereby will be passed upon
for Wells Fargo and for the underwriters, if any, and for the agents, if any,
by counsel identified in the Prospectus Supplement.
EXPERTS
The consolidated financial statements of Wells Fargo as of December 31, 1997
and 1996 and for each of the years in the three-year period ended December 31,
1997, incorporated by reference in Wells Fargo's Annual Report on Form 10-K
for the year ended December 31, 1997 which is incorporated by reference herein
and elsewhere in the Registration Statement, have been incorporated by
reference herein and in the Registration Statement in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
The consolidated financial statements of Norwest as of December 31, 1997 and
1996, and for each of the years in the three-year period ended December 31,
1997, incorporated by reference in Norwest's Annual Report on Form 10-K for
the year ended December 31, 1997, which is incorporated herein by reference,
have been incorporated herein by reference in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
1(a)
--Form of firm commitment Underwriting Agreement for Senior Notes.
Incorporated by reference to Exhibit 1(a) to Registration Statement
No. 33-53514 filed on December 8, 1992.
1(b)
--Form of firm commitment Underwriting Agreement for Subordinated
Notes. Incorporated by reference to Exhibit 1(b) to Registration
Statement No. 33-53514 filed on December 8, 1992.
1(c)
--Form of firm commitment Underwriting Agreement for Preferred Stock.
Incorporated by reference to Exhibit 1(c) to Registration Statement
No. 33-53514 filed on December 8, 1992.
1(d)
--Form of Distribution Agreement. Incorporated by reference to Exhibit
1(d) to Registration Statement No. 33-60573 filed on June 26, 1995.
1(e)
--Finder Agreement. Incorporated by reference to Exhibit 1(d) of
Current Report on Form 8-K filed January 23, 1991.
1(f)
--Amendment No. 1 to Finder Agreement. Incorporated by reference to
Exhibit 1(g) to Registration Statement No. 33-42273 filed on August
19, 1991.
1(g)
--Form of Amendment No. 2 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement No. 33-42273
filed on August 19, 1991.
1(h)
--Amendment No. 3 to Finder Agreement. Incorporated by reference to
Exhibit 1(h) to Registration Statement No. 33-53514 filed on December
8, 1992.
1(i)
--Amendment No. 4 to Finder Agreement. Incorporated by reference to
Exhibit 1(i) to Registration Statement No. 33-51227 filed on November
30, 1993.
1(j)
--Amendment No. 5 to Finder Agreement. Incorporated by reference to
Exhibit 1(j) to Registration Statement No. 33-60573 filed on June 26,
1995.
1(k)
--Amendment No. 6 to Finder Agreement, dated August 24, 1995.*
1(l)
--Form of Amendment No. 7 to Finder Agreement.*
1(m)
--Form of firm commitment Underwriting Agreement for Common Stock.
2(a)
--Agreement and Plan of Merger, dated as of June 7, 1998, and amended
and restated as of September 10, 1998 by and among Wells Fargo &
Company, Norwest Corporation and WFC Holdings Corporation.
Incorporated by reference to Exhibit 2.1 to Registration Statement
No. 333-63247 filed on September 11, 1998.
4(a)
--Form of Senior Indenture, dated as of September 1, 1984, between
Wells Fargo & Company and Manufacturers Hanover Trust Company.
Incorporated by reference to Exhibit 4(a) to Registration Statement
No. 2-93314 filed on September 18, 1984.
4(b)
--Form of First Supplemental Indenture, dated as of April 15, 1986,
between Wells Fargo & Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit 4(b) to Registration
Statement No. 33-4573 filed on April 4, 1986.
4(c)
--Form of Second Supplemental Indenture, dated as of June 30, 1987,
between Wells Fargo & Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit 4.10 to Form 8-B filed
June 30, 1987.
4(d)
--Form of Third Supplemental Indenture, dated as of January 23, 1991,
between Wells Fargo & Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit 4(a) to Form 8-K filed
on January 23, 1991.
4(e)
--Form of Subordinated Indenture. Incorporated by reference to Exhibit
4(e) to Registration Statement No. 33-53514 filed on December 8,
1992.
4(f)
--Form of fixed rate Senior Note. Incorporated by reference to Exhibit
4(b) to Registration Statement No. 2-95939 filed on February 20,
1985.
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4(g)
--Form of floating rate Senior Note. Incorporated by reference to
Exhibit 4(c) to Registration Statement No. 2-95939 filed on February
20, 1985.
4(h)
--Form of original issue discount or zero coupon Senior Note.
Incorporated by reference to Exhibit 4(d) to Registration Statement
No. 2-95939 filed on February 20, 1985.
4(i)
--Form of fixed interest bearing Subordinated Note. Incorporated by
reference to Exhibit 4(i) to Registration Statement No. 33-53514
filed on December 8, 1992.
4(j)
--Form of floating interest bearing Subordinated Note. Incorporated by
reference to Exhibit 4(j) to Registration Statement No. 33-53514
filed on December 8, 1992.
4(k)
--Form of original issue discount or zero coupon Subordinated Note.
Incorporated by reference to Exhibit 4(k) to Registration Statement
No. 33-53514 filed on December 8, 1992.
4(l)
--Form of Medium-Term Fixed Rate Note. Incorporated by reference to
Exhibit 4(l) to Registration Statement No. 33-60573 filed on June 26,
1995.
4(m)
--Form of Medium-Term Floating Rate Note. Incorporated by reference to
Exhibit 4(m) to Registration Statement No. 33-60573 filed on June 26,
1995.
4(n)
--Restated Certificate of Incorporation of Wells Fargo & Company.
Incorporated by reference to Exhibit 3(a) to Annual Report on Form
10-K for the year ended December 31, 1993.
4(o)
--Certificate of Designations for Adjustable Rate Cumulative Preferred
Stock, Series B. Incorporated by reference to Exhibit 3(c) to Annual
Report on Form 10-K for the year ended December 31, 1993.
4(p)
--Certificate of Designations for Fixed/Adjustable Rate Non Cumulative
Preferred Stock, Series H. Incorporated by reference to Exhibit 4(a)
to Form 8-K/A filed on September 23, 1996.
4(q)
--Bylaws of Wells Fargo & Company. Incorporated by reference to
Exhibit 3(ii) to Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1998.
4(r)
--Form of Certificate of Designations for Preferred Stock.
Incorporated by reference to Exhibit 4 to Registration Statement No.
33-45066 filed on January 22, 1992.
4(s)
--Form of Deposit Agreement. Incorporated by reference to Exhibit 4(f)
to Registration Statement No. 33-45066 filed on January 22, 1992.
4(t)
--Form of Depositary Receipt. Incorporated by reference to Exhibit
4(g) to Registration Statement No. 33-45066 filed on January 22,
1992.
5(a)
--Opinion of Gibson, Dunn & Crutcher LLP with respect to the validity
of the Offered Securities.
12(a)
--Ratio of earnings to fixed charges (consolidated). Incorporated by
reference to Exhibit 12(a) to the Annual Report on Form 10-K for the
year ended December 31, 1997 and to Exhibit 99(a) to the Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 1998.
12(b)
--Computation of ratios of earnings to fixed charges and preferred
dividend requirements (consolidated). Incorporated by reference to
Exhibit 12(b) to the Annual Report on Form 10-K for the year ended
December 31, 1997 and to Exhibit 99(b) to the Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1998.
23(a)
--Consent of KPMG Peat Marwick LLP, independent auditors for Wells
Fargo & Company.
23(b)
--Consent of KPMG Peat Marwick LLP, independent auditors for Norwest
Corporation.
23(c)
--Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5(a)).
24(a)
--Power of Attorney.*
25(a)
--Statement of Eligibility of The Chase Manhattan Bank (formerly known
as Chemical Bank).*
25(b)
--Statement of Eligibility of Marine Midland Bank.*
- --------
*Previously filed.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY AND COUNTY OF SAN
FRANCISCO, STATE OF CALIFORNIA, THIS 16TH DAY OF SEPTEMBER 1998.
Wells Fargo & Company
/s/ Rodney L. Jacobs
By: __________________________________
RODNEY L. JACOBS
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATE INDICATED:
SIGNATURE TITLE DATE
/s/ Paul Hazen* Chairman of the
- ------------------------------------ Board and Chief
PAUL HAZEN Executive Officer
(Principal
Executive Officer)
/s/ Ross Kari Chief Financial September 16,
- ------------------------------------ Officer (Principal 1998
ROSS KARI Financial Officer)
/s/ Frank A. Moeslein* Executive Vice
- ------------------------------------ President and
FRANK A. MOESLEIN Controller
(Principal
Accounting
Officer)
/s/ H. Jesse Arnelle* Director
- ------------------------------------
H. JESSE ARNELLE
/s/ Michael R. Bowlin* Director
- ------------------------------------
MICHAEL R. BOWLIN
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director
- ------------------------------------
EDWARD M. CARSON
Director ,
- ------------------------------------
WILLIAM S. DAVILA
Director
/s/ Rayburn S. Dezember*
- ------------------------------------
RAYBURN S. DEZEMBER
/s/ Rodney L. Jacobs* President and
- ------------------------------------ Director
RODNEY L. JACOBS
Director
/s/ Robert K. Jaedicke*
- ------------------------------------
ROBERT K. JAEDICKE
Director
/s/ Thomas L. Lee*
- ------------------------------------
THOMAS L. LEE
Director
/s/ Philip J. Quigley*
- ------------------------------------
PHILIP J. QUIGLEY
/s/ Donald B. Rice* Director
- ------------------------------------
DONALD B. RICE
Director
/s/ Susan G. Swenson*
- ------------------------------------
SUSAN G. SWENSON
Director
/s/ Daniel M. Tellep*
- ------------------------------------
DANIEL M. TELLEP
</TABLE>
II-4
<PAGE>
SIGNATURE TITLE DATE
Director
/s/ Chang-Lin Tien*
- -------------------------------------
CHANG-LIN TIEN
Director
/s/ John A. Young*
- -------------------------------------
JOHN A. YOUNG
September 16,
*By: /s/ Rodney L. Jacobs 1998
- --------------------------------------
RODNEY L. JACOBS
ATTORNEY-IN-FACT
II-5
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
<C> <S> <C>
1(a) --Form of firm commitment Underwriting Agreement for Senior
Notes. Incorporated by reference to Exhibit 1(a) to
Registration Statement No. 33-53514 filed on December 8, 1992.
1(b) --Form of firm commitment Underwriting Agreement for
Subordinated Notes. Incorporated by reference to Exhibit 1(b)
to Registration Statement No. 33-53514 filed on December 8,
1992.
1(c) --Form of firm commitment Underwriting Agreement for Preferred
Stock. Incorporated by reference to Exhibit 1(c) to
Registration Statement No. 33-53514 filed on December 8, 1992.
1(d) --Form of Distribution Agreement. Incorporated by reference to
Exhibit 1(d) to Registration Statement No. 33-60573 filed on
June 26, 1995.
1(e) --Finder Agreement. Incorporated by reference to Exhibit 1(d) of
Current Report on Form 8-K filed January 23, 1991.
1(f) --Amendment No. 1 to Finder Agreement. Incorporated by reference
to Exhibit 1(g) to Registration Statement No. 33-42273 filed on
August 19, 1991.
1(g) --Form of Amendment No. 2 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement No. 33-
42273 filed on August 19, 1991.
1(h) --Amendment No. 3 to Finder Agreement. Incorporated by reference
to Exhibit 1(h) to Registration Statement No. 33-53514 filed on
December 8, 1992.
1(i) --Amendment No. 4 to Finder Agreement. Incorporated by reference
to Exhibit 1(i) to Registration Statement No. 33-51227 filed on
November 30, 1993.
1(j) --Amendment No. 5 to Finder Agreement. Incorporated by reference
to Exhibit 1(j) to Registration Statement No. 33-60573 filed on
June 26, 1995.
1(k) --Amendment No. 6 to Finder Agreement, dated August 24, 1995.*
1(l) --Form of Amendment No. 7 to Finder Agreement.*
1(m) --Form of Firm Commitment Underwriting Agreement for Common
Stock.
2(a) --Agreement and Plan of Merger, dated as of June 7, 1998, and
amended and restated as of September 10, 1998 by and among
Wells Fargo & Company, Norwest Corporation and WFC Holdings
Corporation. Incorporated by reference to Exhibit 2.1 to
Registration Statement No. 333-63247 filed on September 11,
1998.
4(a) --Form of Senior Indenture, dated as of September 1, 1984,
between Wells Fargo & Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit 4(a) to
Registration Statement No. 2-93314 filed on September 18, 1984.
4(b) --Form of First Supplemental Indenture, dated as of April 15,
1986, between Wells Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to Exhibit 4(b) to
Registration Statement No. 33-4573 filed on April 4, 1986.
4(c) --Form of Second Supplemental Indenture, dated as of June 30,
1987, between Wells Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to Exhibit 4.10 to
Form 8-B filed June 30, 1987.
4(d) --Form of Third Supplemental Indenture, dated as of January 23,
1991, between Wells Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to Exhibit 4(a) to
Form 8-K filed on January 23, 1991.
4(e) --Form of Subordinated Indenture. Incorporated by reference to
Exhibit 4(e) to Registration Statement No. 33-53514 filed on
December 8, 1992.
4(f) --Form of fixed rate Senior Note. Incorporated by reference to
Exhibit 4(b) to Registration Statement No. 2-95939 filed on
February 20, 1985.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
4(g) --Form of floating rate Senior Note. Incorporated by reference
to Exhibit 4(c) to Registration Statement No. 2-95939 filed on
February 20, 1985.
4(h) --Form of original issue discount or zero coupon Senior Note.
Incorporated by reference to Exhibit 4(d) to Registration
Statement No. 2-95939 filed on
February 20, 1985.
4(i) --Form of fixed interest bearing Subordinated Note. Incorporated
by reference to Exhibit 4(i) to Registration Statement No. 33-
53514 filed on December 8, 1992.
4(j) --Form of floating interest bearing Subordinated Note.
Incorporated by reference to Exhibit 4(j) to Registration
Statement No. 33-53514 filed on December 8, 1992.
4(k) --Form of original issue discount or zero coupon Subordinated
Note. Incorporated by reference to Exhibit 4(k) to Registration
Statement No. 33-53514 filed on December 8, 1992.
4(l) --Form of Medium-Term Fixed Rate Note. Incorporated by reference
to Exhibit 4(l) to Registration Statement No. 33-60573 filed on
June 26, 1995.
4(m) --Form of Medium-Term Floating Rate Note. Incorporated by
reference to Exhibit 4(m) to Registration Statement No. 33-
60573 filed on June 26, 1995.
4(n) --Restated Certificate of Incorporation of Wells Fargo &
Company. Incorporated by reference to Exhibit 3(a) to Annual
Report on Form 10-K for the year ended December 31, 1993.
4(o) --Certificate of Designations for Adjustable Rate Cumulative
Preferred Stock, Series B. Incorporated by reference to Exhibit
3(c) to Annual Report on Form 10-K for the year ended December
31, 1993.
4(p) --Certificate of Designations for Fixed/Adjustable Rate Non
Cumulative Preferred Stock, Series H. Incorporated by reference
to Exhibit 4(a) to Form 8-K/A filed on September 23, 1996.
4(q) --Bylaws of Wells Fargo & Company. Incorporated by reference to
Exhibit 3(ii) to Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998.
4(r) --Form of Certificate of Designations for Preferred Stock.
Incorporated by reference to Exhibit 4(c) to Registration
Statement No. 33-45066 filed on January 22, 1992.
4(s) --Form of Deposit Agreement. Incorporated by reference to
Exhibit 4(f) to Registration Statement No. 33-45066 filed on
January 22, 1992.
4(t) --Form of Depositary Receipt. Incorporated by reference to
Exhibit 4(g) to Registration Statement No. 33-45066 filed on
January 22, 1992.
5(a) --Opinion of Gibson, Dunn & Crutcher LLP with respect to the
validity of the Offered Securities.
12(a) --Ratio of earnings to fixed charges (consolidated).
Incorporated by reference to Exhibit 12(a) to the Annual Report
on Form 10-K for the year ended December 31, 1997 and to
Exhibit 99(a) to the Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998.
12(b) --Computation of ratios of earnings to fixed charges and
preferred dividend requirements (consolidated). Incorporated by
reference to Exhibit 12(b) to the Annual Report on Form 10-K
for the year ended December 31, 1997 and to Exhibit 99(b) to
the Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1998.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
23(a) --Consent of KPMG Peat Marwick LLP, independent auditors for Wells Fargo & Company.
23(b) --Consent of KPMG Peat Marwick LLP, independent auditors for Norwest Corporation.
23(c) --Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5(a)).
24(a) --Power of Attorney.*
25(a) --Statement of Eligibility of The Chase Manhattan Bank (formerly known as Chemical Bank).*
25(b) --Statement of Eligibility of Marine Midland Bank.*
</TABLE>
- --------
* Previously filed.
<PAGE>
EXHIBIT 1(m)
WELLS FARGO & COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (COMMON STOCK)
August 1998
<PAGE>
From time to time, Wells Fargo & Company, a Delaware corporation, may
enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time common stock (the
"Securities") to be issued pursuant to the provisions of the Registration
Statement on Form S-3 filed August 20, 1996, Registration No. 333-10469. The
Securities may be issued in amounts, at prices and other terms to be determined
in light of market conditions at the time of sale. The specific number of
shares, issuance price and any other specific terms of the common stock shall be
set forth in a prospectus supplement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and will file with or mail for filing to, the Commission a prospectus
supplement specifically relating to the Offered Securities pursuant to Rule 424
under the Securities Act of 1933. The term Registration Statement means the
registration statement as amended to the date of the Underwriting Agreement.
The term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities (the
"Prospectus Supplement"), as filed with, or mailed for filing to, the Commission
pursuant to Rule 424. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in
each case the material, if any, incorporated by reference therein.
II.
The terms of the public offering of the Securities are set forth in
the Prospectus.
III.
Payment for the Securities shall be made by wire transfer, credit
advice or certified or official bank check or checks payable to the order of the
Company in New York Clearing House funds at the time and place set forth in the
Underwriting Agreement, upon delivery to the managing underwriter, as defined in
the Underwriting Agreement (the
<PAGE>
"Manager") for the respective accounts of the several Underwriters of the
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery. The time and date of such payment and delivery of the Securities
are herein referred to as the Closing Date.
IV.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall have been
instituted or threatened, (ii) there shall have been no material adverse change
in the condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, from that
set forth in the Registration Statement or Prospectus as amended or supplemented
to the Closing Date, (iii) there shall not have occurred since the date of the
applicable Underwriting Agreement any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis, the effect of which makes
it, in the judgment of the Manager, impracticable to market the Firm Offered
Securities or to enforce contracts for the sale of the Firm Offered Securities
and (iv) the Manager shall have received, on the Closing Date, a certificate,
dated the Closing Date and signed by an executive officer of the Company with
respect to clauses (i) and (ii) of this Article IV(a).
(b)The Manager shall have received on the Closing Date an opinion of Gibson,
Dunn & Crutcher LLP, counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit A hereto.
(c)The Manager shall have received on the Closing Date an opinion of the Chief
Counsel of the Company, dated the Closing Date, to the effect set forth in
Exhibit B hereto.
(d)The Manager shall have received on the Closing Date an opinion of Sullivan &
Cromwell, counsel for the Underwriters, dated the Closing Date, to the effect
set forth in Exhibit C hereto.
(e)The Manager shall have received on the Closing Date, a letter dated the
Closing Date in form and substance satisfactory to the Manager, from the
Company's independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
-2-
<PAGE>
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
V.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(f)To furnish the Manager, without charge, two conformed copies of the
Registration Statement including exhibits and materials, if any, incorporated by
reference therein and to each other Underwriter one conformed copy of the
Registration Statement without exhibits but including any materials incorporated
by reference therein and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto as the Manager may reasonably
request. The terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents filed by the Company with the Commission
subsequent to the date of the Basic Prospectus, pursuant to the Securities
Exchange Act of 1934, which are deemed to be incorporated by reference into the
Prospectus.
(g)Before amending or supplementing the Registration Statement or the Prospectus
with respect to the Offered Securities, to furnish the Manager a copy of each
such proposed amendment or supplement.
(h)If, during such period after the first day of the public offering of the
Offered Securities, as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses the
Manager shall furnish to the Company) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any other dealer upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(i)To endeavor to qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification
-3-
<PAGE>
and in connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the Manager
may designate.
(j)To make generally available to the Company's security holders as soon as
practicable an earnings statement covering a twelve-month period beginning after
the date of the Underwriting Agreement, which shall satisfy the provisions of
Section 11(a) of the Securities Act of 1933.
(k)During the period beginning on the date of the Underwriting Agreement and
continuing to and including the Closing Date, not to offer, sell, contract or
sell or otherwise dispose of any common stock of the Company substantially
similar to the Offered Securities, without the prior written consent of the
Manager.
VI.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, when such
part became effective, did not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statement therein not misleading, (iii) each preliminary prospectus, if any,
filed pursuant to Rule 424 under the Securities Act of 1933 complied when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder, (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act of 1933 and the applicable rules and
regulations thereunder and (v) the Registration Statement and the Prospectus at
the date of the Prospectus Supplement do not contain and, as further amended or
supplemented, if applicable, as of their respective dates, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statement therein not misleading,
except that these representations and warranties do not apply to statements or
omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities (including the fees and expenses
-4-
<PAGE>
of counsel in connection with any governmental or regulatory investigation or
proceeding) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (if used
within the period set forth in paragraph (c) of Article V hereof and as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein; provided, however, that the foregoing indemnity with respect to
preliminary prospectuses shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased the Offered
Securities if such untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus has not been furnished to such person at
or prior to the written confirmation of the sale of such Offered Securities to
such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel, related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall
-5-
<PAGE>
be designated in writing by the Manager in the case of parties indemnified
pursuant to the second preceding paragraph and by the Company in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Article VI is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amounts paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VI, no Underwriter shall be
required to contribute any amount in excess of the
-6-
<PAGE>
amount by which the total price at which the Offered Securities underwritten and
distributed to the public by such Underwriter were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several, in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Underwriter or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its directors or officers or any person controlling the Company
and (iii) acceptance of and payment for any of the Offered Securities.
VII.
This Agreement shall be subject to termination by the Manager, by
notice given to the Company, if, beginning on the date of the applicable
Underwriting Agreement and ending on the Closing Date or, in the case of clause
(i) below, since the respective dates as of which information is given in the
Registration Statement, as amended to the date of the applicable Underwriting
Agreement, (i) there has been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which makes it, in the judgment
of the Manager, impracticable to market the Firm Offered Securities or enforce
contracts for the sale of the Firm Offered Securities, (iii) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited or (iv) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York state
authorities.
VIII.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it or they have agreed to
purchase under the applicable Underwriting Agreement on such date, and the
aggregate number of Offered
-7-
<PAGE>
Securities which such defaulting Underwriter or Underwriters agreed but failed
to purchase is not more than one-tenth of the aggregate number of Offered
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Offered Securities set
forth opposite their respective names in the applicable Underwriting Agreement
bears to the aggregate number of Offered Securities set forth opposite the name
of all such non-defaulting Underwriters, or in such proportions as we may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
--------
that in no event shall the number of Offered Securities that any Underwriter has
agreed to purchase pursuant to the applicable Underwriting Agreement on such
date be increased pursuant to this Article VIII by an amount in excess of one-
ninth of such number of Offered Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Offered Securities which it or they have agreed to
purchase on such date and the aggregate number of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Offered Securities to be purchased on such date and arrangements
satisfactory to us and you for the purchase of such Offered Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or we shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
IX.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement except pursuant to Article VIII hereof, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
-8-
<PAGE>
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-9-
<PAGE>
Exhibit A
Opinion of Gibson, Dunn & Crutcher LLC,
Counsel to the Company
The opinion of Gibson, Dunn & Crutcher LLC, counsel to the Company, to
be delivered pursuant to Article IV, paragraph (b) of the document dated August
1998 entitled Wells Fargo & Company Underwriting Agreement Standard Provisions
(Common Stock) shall be to the effect that:
(i) The Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company.
(ii) The Offered Securities have been duly authorized by all
necessary corporate action on the part of the Company and, when issued and
delivered to and paid for by the Underwriters, will be duly and validly
issued and fully paid and nonassessable and the issuance of the Offered
Securities is not subject to any preemptive or similar rights.
(iii) The Registration Statement is effective under the Securities
Act of 1993, as amended, and to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened under Section 8(d)
of said Act.
(iv) No authorization, consent, approval of or filing with any
governmental or regulatory body is required to be obtained by the Company
in connection with the execution, delivery and performance of the Agreement
or the issuance and sale of the Offered Securities, other than the filing
with and order of the Securities and Exchange Commission in connection with
the registration of the Offered Securities under the Securities Act of
1933, as amended, and except that the offer and sale of the Offered
Securities in certain jurisdictions may be subject to the Blue Sky or
securities laws of such jurisdictions.
(v) The execution, delivery and performance of the Agreement by the
Company and the issuance and sale of the Offered Securities will not
contravene any provision of applicable law or regulation of the State of
California or the United States, the General Corporate Law of the State of
Delaware or the Restated Certificate of Incorporation, as amended, or By-
Laws of the Company or the articles of association or By-Laws of the Bank
(as defined in Exhibit B).
A-1
<PAGE>
(vi) The statements in the Prospectus Supplement under the captions
"Description of Common Stock" and "Underwriting" and in the Prospectus
under the captions "Description of Capital Stock -- General" "Description
of Capital Stock -- Common Stock" and "Plan of Distribution," insofar as
such statements constitute summaries of the documents referred to therein,
fairly present the information called for with respect to such documents.
(vii) Such counsel (1) believes that each document, if any, filed
pursuant to the Securities Exchange Act of 1934 (except as to financial
statements or other financial information included therein, as to which
such counsel need not express any belief) and incorporated by reference in
the Prospectus complied when so filed as to form in all material respects
with such Act and the applicable rules and regulations thereunder, (2) has
no reason to believe that (except as to financial statements or other
financial information included therein, as to which such counsel need not
express any belief) any part of the Registration Statement (including the
documents incorporated by reference therein) filed with the Commission
pursuant to the securities Act of 1933 relating to the Securities, when
such part became effective contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) believes that
the Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements or other financial
information included therein, as to which such counsel need not express any
belief), comply as to form in all material respects with the Securities Act
of 1933 and the applicable rules and regulations thereunder and (4) has no
reason to believe that (except as to financial statements or other
financial information included therein, as to which such counsel need not
express any belief) the Registration Statement and the Prospectus on the
date of the Prospectus Supplement did, and the Prospectus, as amended or
supplemented, if applicable, on the Closing Date does, contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
With respect to the matters set forth in (vii) above, Gibson, Dunn &
Crutcher LLP may state that their belief is based upon their participation
in the preparation of the Registration Statement and the Prospectus and any
amendments and supplements thereto and review and discussion of the
contents thereof, but is without independent check or verification, except
as specified.
A-2
<PAGE>
Exhibit B
Opinion of the Chief Counsel to the Company
The opinion of the Chief Counsel to the Company, to be delivered pursuant
to Article IV, paragraph (c) of the document dated August 1998 entitled Wells
Fargo & Company Underwriting Agreement Standard Provisions (Common Stock) shall
be to the effect that:
(i) The Company has been duly incorporated, is validly existing in
good standing under the laws of the State of Delaware, is duly registered
as a bank holding company under the Bank Holding Company Act of 1956, as
amended, and has all requisite corporate power and authority under its
articles of incorporation and the laws of the United States and the State
of Delaware to own, lease and operate its properties and conduct its
business as described in the Prospectus.
(ii) Wells Fargo Bank, National Association ("Bank"), is validly
existing as a national banking association in good standing under the laws
of the United States, the Bank has all requisite corporate power and
authority to own, lease and operate its properties and conduct its business
as described in the Prospectus; all of the issued and outstanding capital
stock of the Bank has been duly and validly issued and is fully paid and
nonassessable (subject, however, to the provisions of Section 55, Title 12,
United States Code); and all of the capital stock of the Bank is owned by
the Company, directly or indirectly, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) To the best knowledge and information of such counsel, there
are no contracts, indentures, mortgages, loan agreements, leases or other
documents of a character required to be described or referred to in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement other than those specifically described or referred
to therein or filed as exhibits thereto or to materials incorporated by
reference therein, and the description thereof or reference thereto was
correct at the date that the document incorporated by reference in the
Registration Statement or Prospectus which contains such description or
reference was filed with the Commission or, if not so incorporated by
reference, is correct, provided, however, that such counsel need not
express any opinion regarding such documents to the extent that they are
required to be described or referred to in the financial statements or
other financial information but not otherwise in the Registration Statement
or Prospectus.
B-1
<PAGE>
(iv) The execution, delivery and performance of the Agreement by the
Company and the issuance and sale of the Offered Securities will not
contravene any provision of applicable law or regulation of the State of
California or the United States or the articles of incorporation or by-laws
of the Company or the Bank or, to the knowledge of such counsel, any
provision of any agreement or other instrument binding upon the Company or
the Bank.
(v) The statements as to matters of law or legal conclusions
contained under the caption "Supervision and Regulation" in the Company's
latest annual report on form 10-K which is incorporated by reference in the
Prospectus were correct as of the date such report was filed with the
Commission, and such statements fairly present the matters referred to in
such report.
B-2
<PAGE>
Exhibit C
Opinion of Sullivan & Cromwell, Counsel
for the Underwriters
The opinion of Sullivan & Cromwell, counsel for the Underwriters, to be
delivered pursuant to Article IV, paragraph (e) of the document dated August
1998 and entitled Wells Fargo & Company Underwriting Agreement Standard
Provisions (Common Stock) shall be to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(ii) The Offered Securities have been duly authorized and validly
issued and are fully paid and nonassessable.
(iii) The Agreement has been duly authorized, executed and delivered
by the Company.
(iv) Such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, any Post-Effective Amendment thereto, the Basic
Prospectus or the Prospectus Supplement except for those made under the
captions "Description of Common Stock" and "Underwriting" in the Prospectus
Supplement and under the captions "Description of Capital Stock -- General,
" "Description of Capital Stock -- Common Stock" and "Plan of
Distribution," in the Basic Prospectus insofar as they relate to provisions
of documents therein described.
(v) Such counsel (1) believes that each part of the Registration
Statement, when such part became effective, and the Basic Prospectus, as
supplemented by the Prospectus Supplement, as of the date of the Prospectus
Supplement (in each case, except as to financial statements or other
financial information included therein, as to which such counsel need not
express any belief), appeared on their face to be appropriately responsive,
in all material respects relevant to the offering of the Offered
Securities, to the requirements of the Securities Act of 1933 and the
applicable rules and regulations thereunder and (2) has no reason to
believe that each part of the Registration Statement (except as to
financial statements or other financial information included therein, as to
which such counsel need not express any belief), when such part became
effective, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
C-1
<PAGE>
to make the statements therein not misleading or that the Basic Prospectus,
as supplemented by the Prospectus Supplement (except as to financial
statements or other financial information included therein, as to which
such counsel need not express any belief), as of the date of the Prospectus
Supplement, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
With respect to the matters set forth in (v) above, Sullivan &
Cromwell may state that their belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference therein) and review and discussion of the contents thereof
(including documents incorporated by reference therein), but is without
independent check or verification, except as specified.
C-2
<PAGE>
Exhibit 5(a)
September 16, 1998
(415) 393-8200 C 97808-00005
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Re: Post-Effective Amendment No. 1 to Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined Post-Effective Amendment No. 1 to the registration
statement on Form S-3, registration no. 333-10469 (the "Registration
Statement"), filed by Wells Fargo & Company, a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"") for the issuance and
sale by the Company of it debt securities (the "Notes"), Preferred Stock, $5.00
par value ("Preferred Stock"), and/or Common Stock, $5.00 par value (together
with the Preferred Stock, the "Offered Equity Securities" and, collectively with
the Notes and Preferred Stock, the "Offered Securities") with a remaining public
offering price of up to $2,575,000,000.
In connection with this transaction, we have examined the proceedings
taken and are familiar with the proceedings proposed to be taken by the Company
in connection with its issuance and sale of Offered Securities. We have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the authenticity of all documents submitted to us as copies and the authenticity
of the originals of such copied documents.
On the basis of the foregoing and subject to the limitations,
qualifications and expectations set forth below, we are of the opinion that,
upon conclusion of the proceedings being taken or contemplated by us, as the
Company's counsel, to be taken prior to the issuance of Offered Securities, and
upon completion of the proceedings being taken in order to permit such
transaction to be carried out in accordance with the securities laws of the
various states where required, (i) the Offered Equity Securities, when issued
and sold in the manner contemplated by
<PAGE>
Wells Fargo & Company
September 16, 1998
Page 2
the prospectus forming a part of the Registration Statement and/or any
prospectus supplement in connection therewith, will be legally and validly
issued, fully paid and non-assessable; and (ii) the Notes, when issued and sold
in the manner described in the prospectus forming a part of the Registration
Statement and/or any prospectus supplement in connection therewith, and the
Indenture relating thereto, will be legally and validly issued, fully paid and
binding obligations of the Company.
Our opinion set forth above as it relates to the Notes is subject to the
effect of (i) applicable bankruptcy, reorganization, insolvency, moratorium and
other similar laws and court decisions of general application (including,
without limitation, statutory or other laws regarding fraudulent or preferential
transfers) relating to, limiting or affecting the enforcement of creditors'
rights generally, (ii) general principles of equity that may limit the
enforceability of any of the remedies, covenants or other provisions of the
Notes and the Indenture relating thereto, and (iii) the application of
principles of equity (regardless of whether enforcement is considered in
proceeding at law or in equity) as such principles relate to, limit or affect
the enforcement of creditors' rights generally.
We express no opinion as to (i) any provision of the Notes or the
related Indenture regarding the remedies available to any person (A) to take
action that is arbitrary, unreasonable or capricious or is taken in good faith
or in a commercially reasonable manner, whether or not such action is permitted
under such Notes or Indenture, or (B) for violations or breaches that are
determined by a court to be non-material or without substantially adverse effect
upon the Company's ability to perform its material obligations under such Notes
or Indenture; or (ii) any provision of the Notes or the related Indenture that
may provide for interest on interest or penalty interest.
The Company is a Delaware corporation. We are not admitted to practice
in Delaware. However, we are generally familiar with the Delaware General
Corporation Law and have made such review thereof as we consider necessary for
purposes of this opinion. Subject to the foregoing, this opinion is limited to
Delaware and federal law.
This opinion may not be quoted in whole or in part without our prior
written consent.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name under the caption "Legal
Matters" in the Registration Statement or any prospectus supplement and any
amendment thereto. In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the Act or
the General Rules and Regulations of the Commission.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
<PAGE>
Exhibit 23 (a)
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Wells Fargo & Company:
We consent to the incorporation by reference in the Post-Effective Amendment
No. 1 to the Registration Statement (No. 333-10469) on Form S-3 of our report
dated January 19, 1998 with respect to the consolidated balance sheet of Wells
Fargo & Company and Subsidiaries as of December 31, 1997 and 1996, and the
related consolidated statements of income, changes in stockholders' equity, and
cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in the December 31, 1997 annual report incorporated
by reference in the 1997 Form 10-K of Wells Fargo & Company, and to the
references to our firm under the heading "Experts" in the Registration
Statement.
KPMG PEAT MARWICK LLP
San Franciso, California
September 16, 1998
<PAGE>
EXHIBIT 23(b)
Independent Auditors' Consent
-----------------------------
The Board of Directors
Norwest Corporation:
We consent to the incorporation by reference in the Registration Statement (No.
333-10469) on Form S-3 of Wells Fargo & Company of our report dated January 15,
1998, with respect to the consolidated balance sheets of Norwest Corporation and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of income, stockholders' equity, and cash flows for each of the years
in the three-year period ended December 31, 1997, and to the reference to our
Firm under the heading "EXPERTS" in the prospectus.
KPMG PEAT MARWICK LLP
Minneapolis, Minnesota
September 16, 1998
