SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) January 12, 2000
--------------------------
National Bancorp of Alaska, Inc.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware 0-10769 92-0087646
- --------------------------------------------------------------------------------
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification Number)
Northern Lights Boulevard and C Street, Anchorage, AK 99503
- --------------------------------------------------------------------------------
(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code 907/276-1132
---------------------------
N/A
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
ITEM 5. OTHER EVENTS.
On January 12, 2000, National Bancorp of Alaska, Inc., a Delaware
corporation ("NBAK"), and Wells Fargo & Company, a Delaware corporation ("Wells
Fargo"), announced that they have signed a definitive agreement and plan of
reorganization (the "Agreement") for the merger of NBAK and Wells Fargo.
The Agreement provides that a wholly-owned subsidiary of Wells Fargo
will be merged by statutory merger with and into NBAK, with NBAK being the
surviving corporation (the "Merger"). At the effective time of the Merger, each
share of NBAK common stock outstanding immediately prior to the effective time
of the Merger will be converted into the right to receive the number of shares
of Wells Fargo common stock determined by dividing $30 by the Wells Fargo
Measurement Price. The "Wells Fargo Measurement Price" is defined as the average
of the closing prices of a share of Wells Fargo common stock as reported on the
consolidated tape of the New York Stock Exchange during the period of fifteen
trading days ending on the day immediately preceding the date on which the Board
of Governors of the Federal Reserve System approves the Merger.
The acquisition is expected to be completed in the second quarter of
2000. The Merger is subject to the approval of NBAK's shareholders and of
banking regulators. The Agreement contemplates a tax-free exchange of Wells
Fargo common stock for the stock of NBAK. The total purchase price is
approximately $907 million.
As an inducement to Wells Fargo to enter into the Agreement, Mr. Elmer
E. Rasmuson, the principal stockholder of NBAK, and Mr. Edward B. Rasmuson,
Chairman of the Board of Directors of NBAK, entered into agreements with Wells
Fargo whereby each agreed that until consummation of the Merger or termination
of the Agreement he will not contract to sell or otherwise transfer or dispose
of his shares of NBAK common stock except pursuant to the Merger, with the prior
consent of Wells Fargo, or by operation of law, and further agreed that all
shares of NBAK common stock beneficially owned by him at the record date of any
meeting of stockholders of NBAK called to vote upon the Merger will be voted in
favor of the Merger. The number of shares of NBAK common stock subject to these
agreements constitutes a majority of the outstanding shares of NBAK common
stock.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Not Applicable.
(b) Not Applicable.
(c) Exhibits.
The following exhibits are filed with this Current Report on Form 8-K:
<PAGE>
Exhibit
Number Description
- ------ -----------
2.1 Agreement and Plan of Reorganization, dated January 12, 2000, between
National Bancorp of Alaska, Inc. and Wells Fargo & Company.
2.2 Voting Agreement, dated January 12, 2000, between Elmer E. Rasmuson and
Wells Fargo & Company.
2.3 Voting Agreement, dated January 12, 2000, between Edward B. Rasmuson and
Wells Fargo & Company.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONAL BANCORP OF ALASKA, INC.
By: /s/ Edward B. Rasmuson
-------------------------------
Name: Edward B. Rasmuson
Title: Chairman of the Board
of Directors
Date: January 14, 2000
<PAGE>
EXHIBIT INDEX
2.1 Agreement and Plan of Reorganization, dated January 12, 2000, between
National Bancorp of Alaska, Inc. and Wells Fargo & Company.
2.2 Voting Agreement, dated January 12, 2000, between Elmer E. Rasmuson and
Wells Fargo & Company.
2.3 Voting Agreement, dated January 12, 2000, between Edward B. Rasmuson and
Wells Fargo & Company.
EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT
AND
PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") entered into as
of the 12th day of January, 2000, by and between NATIONAL BANCORP OF ALASKA,
INC. ("Company"), a Delaware corporation, and WELLS FARGO & COMPANY ("Wells
Fargo"), a Delaware corporation.
WHEREAS, the parties hereto desire to effect a reorganization whereby a
wholly-owned subsidiary of Wells Fargo will merge with and into Company (the
"Merger") pursuant to an agreement and plan of merger (the "Merger Agreement")
in substantially the form attached hereto as Exhibit A, which provides, among
other things, for the conversion of the shares of Common Stock of Company of the
par value of $2.50 per share ("Company Common Stock") outstanding immediately
prior to the time the Merger becomes effective in accordance with the provisions
of the Merger Agreement into the right to receive shares of voting Common Stock
of Wells Fargo of the par value of $1-2/3 per share ("Wells Fargo Common
Stock"),
NOW, THEREFORE, to effect such reorganization and in consideration of
the premises and the mutual covenants and agreements contained herein, the
parties hereto do hereby represent, warrant, covenant and agree as follows:
1. Basic Plan of Reorganization
(a) Merger. Subject to the terms and conditions contained herein, a
wholly-owned subsidiary of Wells Fargo (the "Merger Co.") will be merged by
statutory merger with and into Company pursuant to the Merger Agreement, with
Company as the surviving corporation, in which merger each share of Company
Common Stock outstanding immediately prior to the Effective Time of the Merger
(as defined in paragraph 1 (d) below) (other than shares as to which statutory
dissenters' appraisal rights have been exercised) will be converted into the
right to receive the number of shares of Wells Fargo Common Stock determined by
dividing $30 by the Wells Fargo Measurement Price. The "Wells Fargo Measurement
Price" is defined as the average of the closing prices of a share of Wells Fargo
Common Stock as reported on the consolidated tape of the New York Stock Exchange
during the period of 15 trading days ending on the day immediately preceding the
date on which the Board of Governors of the Federal Reserve System approves the
Merger.
(b) Wells Fargo Common Stock Adjustments. If, between the date hereof
and the Effective Time of the Merger, shares of Wells Fargo Common Stock shall
be changed into a different number of shares or a different class of shares by
reason of any reclassification, recapitalization, split-up, combination,
exchange of shares or readjustment, or if a stock dividend thereon shall be
declared with a record date within such period (a "Common Stock Adjustment"),
then the number of shares of Wells Fargo Common Stock for which a share of
Company Common Stock shall be exchanged pursuant to subparagraph (a), above,
will be appropriately and proportionately adjusted so that the number of such
shares of Wells Fargo Common Stock for which a share of Company Common Stock
shall be exchanged will equal the number of shares of Wells Fargo Common Stock
which holders of shares of Company Common Stock would have received pursuant to
such Common Stock Adjustment had the record date therefor been immediately
following the Effective Time of the Merger.
(c) Fractional Shares. No fractional shares of Wells Fargo Common Stock
and no certificates or scrip certificates therefor shall be issued to represent
any such fractional interest, and any holder thereof shall be paid an amount of
cash equal to the product obtained by multiplying the fractional share interest
to which such holder is entitled by the average of the closing prices of a share
of Wells Fargo Common Stock as reported by the
<PAGE>
consolidated tape of the New York Stock Exchange for each of the five (5)
trading days ending on the second day immediately preceding the Effective Date
of the Merger (as defined in paragraph 1(d) of this Agreement).
(d) Mechanics of Closing Merger. Subject to the terms and conditions
set forth herein, the Merger Agreement shall be executed and it or a Certificate
of Merger shall be filed with the Secretary of State of the State of Delaware
within five (5) business days following the satisfaction or waiver of all
conditions precedent set forth in Sections 6 and 7 of this Agreement or on such
other date as may be agreed to by the parties (the "Closing Date"), provided
that the Closing Date shall not occur prior to March 16, 2000 and shall not
occur on the last business day of a calendar month. Each of the parties agrees
to use its best efforts to cause the Merger to be completed as soon as
practicable after the receipt of final regulatory approval of the Merger and the
expiration of all required waiting periods. The time that the filing referred to
in the first sentence of this paragraph is made is herein referred to as the
"Time of Filing." The day on which such filing is made and accepted is herein
referred to as the "Effective Date of the Merger." The "Effective Time of the
Merger" shall be 11:59 p.m. Wilmington, Delaware time on the Effective Date of
the Merger. At the Effective Time of the Merger on the Effective Date of the
Merger, the separate existence of Merger Co. shall cease and Merger Co. will be
merged with and into Company pursuant to the Merger Agreement.
The closing of the transactions contemplated by this Agreement and the
Merger Agreement (the "Closing") shall take place on the Closing Date at the
offices of Wells Fargo, Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota.
(e) Reservation of Right to Revise Structure. At Wells Fargo's
election, the Merger may alternatively be structured so that (1) Company is
merged with and into any other direct or indirect wholly owned subsidiary of
Wells Fargo, (2) any direct or indirect wholly owned subsidiary of Wells Fargo
is merged with and into Company, or (3) Company is merged with and into Wells
Fargo; provided, however, that no such change shall (A) alter or change the
amount or kind of consideration to be issued to the Company's stockholders in
the Merger or under such alternative structure (the "Merger Consideration"), (B)
adversely affect the tax treatment of Company's stockholders as a result of
receiving the Merger Consideration or prevent the parties from obtaining the
opinion referred to in Paragraph 6(h), or (C) impede or delay consummation of
the Merger. In the event of such election, the parties agree to execute an
appropriate amendment to this Agreement in order to reflect such election.
2. Representations and Warranties of Company. Company represents and
warrants to Wells Fargo as follows:
(a) Organization and Authority. Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, is duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and failure to be so qualified would
have a material adverse effect on Company and the Company Subsidiaries (as
defined in paragraph 2(b)) taken as a whole and has corporate power and
authority to own its properties and assets and to carry on its business as it is
now being conducted. Company is registered as a bank holding company with the
Federal Reserve Board under the Bank Holding Company Act of 1956, as amended
(the "BHC Act"). Company has furnished Wells Fargo true and correct copies of
its certificate of incorporation and by-laws, as amended.
(b) Company's Subsidiaries. Schedule 2(b) sets forth a complete and
correct list of all of Company's subsidiaries as of the date hereof
(individually a "Company Subsidiary" and collectively the "Company
Subsidiaries"), all shares of the outstanding capital stock of each of which,
except as set forth on Schedule 2(b), are owned directly or indirectly by
Company. No equity security of any Company Subsidiary is or may be required to
be issued by reason of any option, warrant, scrip, preemptive right, right to
subscribe to, call or commitment of any character whatsoever relating to, or
security or right convertible into, shares of any capital stock of such
subsidiary, and there are no contracts, commitments, understandings or
arrangements by which any Company Subsidiary is bound to issue additional shares
of its capital stock, or any option, warrant or right to purchase or acquire any
additional shares of its capital stock. Subject to 12 U.S.C. ss. 55 (1982) and
the Delaware General Corporation Law, all of such shares so owned by Company are
fully paid and nonassessable and are owned by it free and clear of any lien,
claim, charge, option, encumbrance or agreement with respect thereto. Each
Company Subsidiary is a corporation or national banking association duly
organized, validly existing, duly qualified to do business and in
<PAGE>
good standing under the laws of its jurisdiction of incorporation, and has
corporate power and authority to own or lease its properties and assets and to
carry on its business as it is now being conducted. Except as set forth on
Schedule 2(b), Company does not own beneficially, directly or indirectly, more
than 5% of any class of equity securities or similar interests of any
corporation, bank, business trust, association or similar organization, and is
not, directly or indirectly, a partner in any partnership or party to any joint
venture.
(c) Capitalization. The authorized capital stock of Company consists of
40,000,000 shares of common stock, $2.50 par value, of which, as of the close of
business on September 30, 1999, 30,218,199 shares were outstanding and 1,781,801
shares were held in the treasury. The maximum number of shares of Company Common
Stock (assuming for this purpose that phantom shares and other share-equivalents
constitute Company Common Stock) that would be outstanding as of the Effective
Date of the Merger if all options, warrants, conversion rights and other rights
with respect thereto were exercised is 30,224,180. All of the outstanding shares
of capital stock of Company have been duly and validly authorized and issued and
are fully paid and nonassessable. Except for the preemptive rights afforded to
Company stockholders under subsection (C) of Article Fourth of the certificate
of incorporation of Company, as amended, and except as set forth in Schedule
2(c), there are no outstanding subscriptions, contracts, conversion privileges,
options, warrants, calls, preemptive rights or other rights obligating Company
or any Company Subsidiary to issue, sell or otherwise dispose of, or to
purchase, redeem or otherwise acquire, any shares of capital stock of Company or
any Company Subsidiary. Except as set forth in Schedule 2(c), since September
30, 1999 no shares of Company capital stock have been purchased, redeemed or
otherwise acquired, directly or indirectly, by Company or any Company Subsidiary
and no dividends or other distributions have been declared, set aside, made or
paid to the stockholders of Company.
(d) Authorization. Company has the corporate power and authority to
enter into this Agreement and the Merger Agreement and, subject to any required
approvals of its stockholders, to carry out its obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement and the
Merger Agreement by Company and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors of Company. Subject to such approvals of stockholders and of
government agencies and other governing boards having regulatory authority over
Company as may be required by statute or regulation, this Agreement and the
Merger Agreement are valid and binding obligations of Company enforceable
against Company in accordance with their respective terms.
Except as set forth on Schedule 2(d), neither the execution, delivery
and performance by Company of this Agreement or the Merger Agreement, nor the
consummation of the transactions contemplated hereby and thereby, nor compliance
by Company with any of the provisions hereof or thereof, will (i) violate,
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration of,
or result in the creation of, any lien, security interest, charge or encumbrance
upon any of the properties or assets of Company or any Company Subsidiary under
any of the terms, conditions or provisions of (x) its certificate of
incorporation or by-laws or (y) any material note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation to
which Company or any Company Subsidiary is a party or by which it may be bound,
or to which Company or any Company Subsidiary or any of the properties or assets
of Company or any Company Subsidiary may be subject, or (ii) subject to
compliance with the statutes and regulations referred to in the next paragraph,
violate any statute, rule or regulation or, to the best knowledge of Company,
violate any judgment, ruling, order, writ, injunction or decree applicable to
Company or any Company Subsidiary or any of their respective properties or
assets.
Other than in connection or in compliance with the provisions of the
Securities Act of 1933 and the rules and regulations thereunder (the "Securities
Act"), the Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Exchange Act"), the securities or blue sky laws of the various
states or filings, consents, reviews, authorizations, approvals or exemptions
required under the BHC Act or the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 ("HSR Act"), and filings required to effect the Merger under Delaware
law, no notice to, filing with, exemption or review by, or authorization,
consent or approval of, any public body or authority is necessary for the
consummation by Company of the transactions contemplated by this Agreement and
the Merger Agreement.
<PAGE>
(e) Company Financial Statements. The consolidated balance sheets of
Company as of December 31, 1998 and 1997 and related consolidated statements of
income, stockholders' equity and cash flows for the three years ended December
31, 1998, together with the notes thereto, certified by Deloitte & Touche LLP
and included in Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (the "Company 10-K") as filed with the Securities and Exchange
Commission (the "SEC"), and the unaudited consolidated balance sheets of Company
as of September 30, 1999 and the related unaudited consolidated statements of
income, stockholders' equity and cash flows for the nine (9) months then ended
included in Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999 as filed with the SEC (collectively, the "Company Financial
Statements"), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
in the notes thereto) and present fairly (subject, in the case of financial
statements for interim periods, to normal recurring adjustments) the
consolidated financial position of Company and Company's Subsidiaries at the
dates and the consolidated results of operations and cash flows of Company and
Company's Subsidiaries for the periods stated therein.
(f) Reports. Since December 31, 1995, Company and each Company
Subsidiary has filed all reports, registrations and statements, together with
any required amendments thereto, that it was required to file with (i) the SEC,
including, but not limited to, Forms 10-K, Forms 10-Q and proxy statements, (ii)
the Federal Reserve Board, (iii) the Federal Deposit Insurance Corporation (the
"FDIC"), (iv) the United States Comptroller of the Currency (the "Comptroller")
and (v) any applicable state securities or banking authorities. All such reports
and statements filed with any such regulatory body or authority are collectively
referred to herein as the "Company Reports." As of their respective dates, the
Company Reports complied in all material respects with all the rules and
regulations promulgated by the SEC, the Federal Reserve Board, the FDIC, the
Comptroller and applicable state securities or banking authorities, as the case
may be, and did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Copies of all the Company Reports have been made available
to Wells Fargo by Company.
(g) Properties and Leases. Except as may be reflected in the Company
Financial Statements and except for any lien for current taxes not yet
delinquent, Company and each Company Subsidiary have good title free and clear
of any material liens, claims, charges, options, encumbrances or similar
restrictions to all the real and personal property reflected in Company's
consolidated balance sheet as of September 30, 1999 included in Company's
Quarterly Report on Form 10-Q, and all real and personal property acquired since
such date, except such real and personal property as has been disposed of in the
ordinary course of business. All leases of real property and all other leases
material to Company or any Company Subsidiary pursuant to which Company or such
Company Subsidiary, as lessee, leases real or personal property are valid and
effective in accordance with their respective terms, and there is not, under any
such lease, any material existing default by Company or such Company Subsidiary
or any event which, with notice or lapse of time or both, would constitute such
a material default. Substantially all Company's and each Company Subsidiary's
buildings and equipment in regular use have been well maintained and are in good
and serviceable condition, reasonable wear and tear excepted.
(h) Taxes. Except as set forth in Schedule 2(h), each of Company and
the Company Subsidiaries has filed all federal, state, county, local and foreign
tax returns, including information returns, required to be filed by it, and paid
all taxes owed by it, including those with respect to income, withholding,
social security, unemployment, workers compensation, franchise, ad valorem,
premium, excise and sales taxes, and no taxes shown on such returns to be owed
by it or assessments received by it are delinquent. The federal income tax
returns of Company and the Company Subsidiaries for the fiscal year ended
December 31, 1995, and for all fiscal years prior thereto, are for the purposes
of routine audit by the Internal Revenue Service closed because of the statute
of limitations, and no claims for additional taxes for such fiscal years are
pending. Except only as set forth on Schedule 2(h), (i) neither Company nor any
Company Subsidiary is a party to any pending action or proceeding, nor to the
knowledge of Company is any such action or proceeding threatened by any
governmental authority, for the assessment or collection of taxes, interest,
penalties, assessments or deficiencies and (ii) no issue has been raised by any
federal, state, local or foreign taxing authority in connection with an audit or
examination of the tax returns, business or properties of Company or any Company
Subsidiary which has not been settled, resolved and fully satisfied. Each of
Company and the Company Subsidiaries has paid all taxes owed or which it is
required to withhold from amounts owing to employees, creditors or other third
parties. The consolidated balance sheet as of September 30, 1999, referred to in
paragraph
<PAGE>
2(e) hereof, includes adequate provision for all accrued but unpaid federal,
state, county, local and foreign taxes, interest, penalties, assessments or
deficiencies of Company and the Company Subsidiaries with respect to all periods
through the date thereof.
(i) Absence of Certain Changes. Since December 31, 1998 there has been
no change in the business, financial condition or results of operations of
Company or any Company Subsidiary, which has had, or may reasonably be expected
to have, a material adverse effect on the business, financial condition or
results of operations of Company and the Company Subsidiaries taken as a whole
(other than changes in banking laws or regulations, or interpretations thereof,
that affect the banking industry generally or changes in generally accepted
accounting principles or regulatory accounting requirements applicable to banks
or their holding companies generally or changes to the general level of interest
rates or other economic changes affecting banks generally).
(j) Commitments and Contracts. Except as set forth on Schedule 2(j),
neither Company nor any Company Subsidiary is a party or subject to any of the
following (whether written or oral, express or implied):
(i) any employment contract or understanding (including any
understandings or obligations with respect to severance or termination pay,
liabilities or fringe benefits) with any present or former officer, director,
employee or consultant (other than those that are terminable at will by Company
or such Company Subsidiary);
(ii) any plan, contract or understanding providing for any
bonus, pension, option, deferred compensation, retirement payment, profit
sharing or similar arrangement with respect to any present or former officer,
director, employee or consultant;
(iii) any labor contract or agreement with any labor union;
(iv) any contract containing covenants that limit the ability
of Company or any Company Subsidiary to compete in any line of business or with
any person or which involve any restriction of the geographical area in which,
or method by which, Company or any Company Subsidiary may carry on its business
(other than as may be required by law or applicable regulatory authorities);
(v) any other contract or agreement which is a "material
contract" within the meaning of Item 601(b)(10) of Regulation S-K;
(vi) any real property lease and any other lease with annual
rental payments aggregating $25,000 or more;
(vii) any agreement or commitment with respect to the
Community Reinvestment Act with any state or federal bank regulatory authority
or any other party; or
(viii) any contract or understanding with any current or
former director, officer, employee, consultant, financial adviser, broker,
dealer, or agent providing for any rights of indemnification in favor of such
person or entity.
(k) Litigation and Other Proceedings. Company has furnished Wells Fargo
copies of (i) all attorney responses to the request of the independent auditors
for Company with respect to loss contingencies as of December 31, 1998 in
connection with the Company Financial Statements, and (ii) a written list of
legal and regulatory proceedings filed against Company or any Company Subsidiary
since said date. There is no pending or, to the best knowledge of Company,
threatened, claim, action, suit, investigation or proceeding, against Company or
any Company Subsidiary, nor is Company or any Company Subsidiary subject to any
order, judgment or decree, except for matters which, in the aggregate, will not
have, or cannot reasonably be expected to have, a material adverse effect on the
business, financial condition or results of operations of Company and the
Company Subsidiaries taken as a whole.
(l) Insurance. Company and each Company Subsidiary are presently
insured, and during each of the past five calendar years (or during such lesser
period of time as Company has owned such Company Subsidiary) have
<PAGE>
been insured, for reasonable amounts with financially sound and reputable
insurance companies against such risks as companies engaged in a similar
business would, in accordance with good business practice, customarily be
insured and has maintained all insurance required by applicable law and
regulation.
(m) Compliance with Laws. Each of Company and each Company Subsidiary
(other than any Company Subsidiary which is not actively engaged in an aviation,
banking, insurance, mortgage, finance company, leasing or international banking
business) has all permits, licenses, authorizations, orders and approvals of,
and has made all filings, applications and registrations with, federal, state,
local or foreign governmental or regulatory bodies that are required in order to
permit it to own or lease its properties and assets and to carry on its business
as presently conducted and that are material to the business of Company or such
Company Subsidiary; all such permits, licenses, certificates of authority,
orders and approvals are in full force and effect and, to the best knowledge of
Company, no suspension or cancellation of any of them is threatened; and all
such filings, applications and registrations are current. The conduct by Company
and each such Company Subsidiary of its business and the condition and use of
its properties do not violate or infringe, in any respect material to any such
business, any applicable domestic (federal, state or local) or foreign law,
statute, ordinance, license or regulation. Neither Company nor any such Company
Subsidiary is in default under any order, license, regulation or demand of any
federal, state, municipal or other governmental agency or with respect to any
order, writ, injunction or decree of any court. Except for statutory or
regulatory restrictions of general application and except as set forth on
Schedule 2(m), no federal, state, municipal or other governmental authority has
placed any restriction on the business or properties of Company or any Company
Subsidiary which reasonably could be expected to have a material adverse effect
on the business or properties of Company and the Company Subsidiaries taken as a
whole.
(n) Labor. No work stoppage involving Company or any Company Subsidiary
is pending or, to the best knowledge of Company, threatened. Neither Company nor
any Company Subsidiary is involved in, or threatened with or affected by, any
labor dispute, arbitration, lawsuit or administrative proceeding that could
materially and adversely affect the business of Company or such Company
Subsidiary. Employees of Company and the Company Subsidiaries are not
represented by any labor union nor are any collective bargaining agreements
otherwise in effect with respect to such employees.
(o) Material Interests of Certain Persons. Except as set forth on
Schedule 2(o), to the best knowledge of Company, no officer or director of
Company or any Company Subsidiary, or any "associate" (as such term is defined
in Rule 14a-1 under the Exchange Act) of any such officer or director, has any
interest in any material contract or property (real or personal), tangible or
intangible, used in or pertaining to the business of Company or any Company
Subsidiary.
Schedule 2(o) sets forth a correct and complete list of any loan from
Company or any Company Subsidiary to any present officer, director, employee or
any associate or related interest of any such person which was required under
Regulation O of the Federal Reserve Board to be approved by or reported to
Company's or such Company Subsidiary's Board of Directors.
(p) Company Benefit Plans.
(i) Schedule 2(p)(i) sets forth each employee benefit plan
with respect to which Company or any Company Subsidiary contributes, sponsors or
otherwise has any obligation (the "Plans"). For purposes of this Section 2(p)
and Schedule 2(p)(i), "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the term "Plan" or "Plans" means all employee benefit
plans as defined in Section 3(3) of ERISA, and all other benefit arrangements
including, without limitation, any plan, program, agreement, policy or
commitment providing for insurance coverage of employees, workers' compensation,
disability benefits, supplemental unemployment benefits, vacation benefits,
retirement benefits, severance or termination of employment benefits, life,
health, death, disability or accidental benefits.
(ii) Except as disclosed on Schedule 2(p)(ii), no Plan is a
"multiemployer plan" within the meaning of Section 3(37) of ERISA.
<PAGE>
(iii) Except as disclosed on Schedule 2(p)(iii), no Plan
promises or provides health or life benefits to retirees or former employees
except as required by federal continuation of coverage laws or similar state
laws.
(iv) Except as disclosed on Schedule 2(p)(iv), (a) each Plan
is and has been in all material respects operated and administered in accordance
with its provisions and applicable law including, if applicable, ERISA and the
Code; (b) all reports and filings with governmental agencies (including but not
limited to the Department of Labor, Internal Revenue Service, Pension Benefit
Guaranty Corporation and the Securities and Exchange Commission) required in
connection with each Plan have been timely made; (c) all disclosures and notices
required by law or Plan provisions to be given to participants and beneficiaries
in connection with each Plan have been properly and timely made; (d) there are
no actions, suits or claims pending, other than routine uncontested claims for
benefits with respect to each Plan; and (e) each Plan intended to be qualified
under Section 401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service stating that the Plan (including all
amendments) is tax qualified under Section 401(a) of the Code and Company knows
of no reason that any such Plan is not qualified within the meaning of Section
401(a) of the Code and knows of no reason that each related Plan trust is not
exempt from taxation under Section 501(a) of the Code.
(v) Except as disclosed on Schedule 2(p)(v), (a) all
contributions, premium payments and other payments required to be made in
connection with the Plans as of the date of this Agreement have been made; (b) a
proper accrual has been made on the books of Company for all contributions,
premium payments and other payments due in the current fiscal year but not made
as of the date of this Agreement; (c) no contribution, premium payment or other
payment has been made in support of any Plan that is in excess of the allowable
deduction for federal income tax purposes for the year with respect to which the
contribution was made (whether under Sections 162, 280G, 404, 419, 419A of the
Code or otherwise); and (d) with respect to each Plan that is subject to Section
301 of ERISA or Section 412 of the Code, Company is not liable for any
accumulated funding deficiency as that them is defined in Section 412 of the
Code and the projected benefit obligations determined as of the date of this
Agreement do not exceed the assets of the Plan.
(vi) Except as disclosed in Schedule 2(p)(vi) and to best
knowledge of Company, no Plan or any trust created thereunder, nor any trustee,
fiduciary or administrator thereof, has engaged in a "prohibited transaction,"
as such term is defined in Section 4975 of the Code or Section 406 of ERISA or
violated any of the fiduciary standards under Part 4 of Title 1 of ERISA which
could subject such Plan or trust, or any trustee, fiduciary or administrator
thereof, or any party dealing with any such Plan or trust, to a tax penalty or
prohibited transactions imposed by Section 4975 of the Code or would result in
material liability to Company and the Company Subsidiaries as a whole.
(vii) No Plan subject to Title IV of ERISA or any trust
created thereunder has been terminated, nor have there been any "reportable
events" as that term is defined in Section 4043 of ERISA, with respect to any
Plan, other than those events which may result from the transactions
contemplated by this Agreement and the Merger Agreement.
(viii) Except as disclosed in Schedule 2(p)(viii), neither the
execution and delivery of this Agreement and the Merger Agreement nor the
consummation of the transactions contemplated hereby and thereby will (a) result
in any material payment (including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming due to any director or
employee or former employee of Company under any Plan or otherwise, (b)
materially increase any benefits otherwise payable under any Plan, or (c) result
in the acceleration of the time of payment or vesting of any such benefits to
any material extent.
(q) Proxy Statement, etc. None of the information regarding Company and
the Company Subsidiaries supplied or to be supplied by Company for inclusion in
(i) a Registration Statement on Form S-4 and the prospectus included therein to
be filed with the SEC by Wells Fargo for the purpose of registering the shares
of Wells Fargo Common Stock to be exchanged for shares of Company Common Stock
pursuant to the provisions of the Merger Agreement (the "Registration
Statement"), (ii) the proxy statement included in the Registration Statement to
be mailed to Company's stockholders in connection with the meeting to be called
to consider the Merger (the "Proxy Statement") and (iii) any other documents to
be filed with the SEC or any regulatory authority in connection with the
transactions contemplated hereby or by the Merger Agreement will, at the
respective times such Registration
<PAGE>
Statement, Proxy Statement and other documents are filed with the SEC or any
regulatory authority and, in the case of the Registration Statement, when it
becomes effective and, with respect to the Proxy Statement, when mailed, and, in
the case of the Proxy Statement or any amendment thereof or supplement thereto,
at the time of the meeting of stockholders referred to in paragraph 4(c), and at
the Effective Time of the Merger, 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 statements contained therein, in light of the
circumstances under which they were made, no misleading. All documents which
Company and the Company Subsidiaries are responsible for filing with the SEC and
any other regulatory authority in connection with the Merger will comply as to
form in all material respects with the provisions of applicable law.
(r) Registration Obligations. Except as set forth on Schedule 2(r),
neither Company nor any Company Subsidiary is under any obligation, contingent
or otherwise, by reason of any agreement to register any of its securities under
the Securities Act.
(s) Brokers and Finders. Except for CIBC World Markets Corp. which has
retained to prepare a fairness opinion, neither Company nor any Company
Subsidiary nor any of their respective officers, directors or employees has
employed any broker or finder or incurred any liability for any financial
advisory fees, brokerage fees, commissions or finder's fees, and no broker or
finder has acted directly or indirectly for Company or any Company Subsidiary,
in connection with this Agreement and the Merger Agreement or the transactions
contemplated hereby and thereby.
(t) Fiduciary Activities. Company and each Company Subsidiary has
properly administered in all respects material and which could reasonably be
expected to be material, to the financial condition of Company and the Company
Subsidiaries taken as a whole all accounts for which it acts as a fiduciary,
including but not limited to accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator or investment advisor,
in accordance with the terms of the governing documents and applicable state and
federal law and regulation and common law. Neither Company, any Company
Subsidiary, nor any director, officer or employee of Company or any Company
Subsidiary has committed any breach of trust with respect to any such fiduciary
account which is material to, or could reasonably be expected to be material to,
the financial condition of Company and the Company Subsidiaries taken as a
whole, and the accountings for each such fiduciary account are true and correct
in all material respects and accurately reflect the assets of such fiduciary
account.
(u) No Defaults. Neither Company nor any Company Subsidiary is in
default, nor has any event occurred that, with the passage of time or the giving
of notice, or both, would constitute a default, under any material agreement,
indenture, loan agreement or other instrument to which it is a party or by which
it or any of its assets is bound or to which any of its assets is subject, the
result of which has had or could reasonably be expected to have a material
adverse effect upon Company and the Company Subsidiaries, taken as a whole. To
the best of Company's knowledge, all parties with whom Company or any Company
Subsidiary has material leases, agreements or contracts or who owe to Company or
any Company Subsidiary material obligations other than those arising in the
ordinary course of the banking business of the Company Subsidiaries are in
compliance therewith in all material respects.
(v) Environmental Liability. There is no legal, administrative, or
other proceeding, claim, or action of any nature seeking to impose, or that
could result in the imposition of, on Company or any Company Subsidiary, any
liability relating to the release of hazardous substances as defined under any
local, state or federal environmental statute, regulation or ordinance
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), pending or to the
best of Company's knowledge, threatened against Company or any Company
Subsidiary the result of which has had or could reasonably be expected to have a
material adverse effect upon Company and Company's Subsidiaries taken as a
whole; except as set forth in Schedule 2(v), to the best of Company's knowledge,
there is no reasonable basis for any such proceeding, claim or action; and to
the best of Company's knowledge neither Company nor any Company Subsidiary is
subject to any agreement, order, judgment, or decree by or with any court,
governmental authority or third party imposing any such environmental liability.
Company has provided Wells Fargo with copies of all environmental assessments,
reports, studies and other related information in its possession with respect to
each bank facility and each non-residential OREO property.
<PAGE>
(w) Compliance with Year 2000 Requirements. Except as set forth in
Schedule 2(w), Company is in compliance with its Year 2000 project management
process as set forth in the May 5, 1997 Federal Financial Institutions
Examination Council ("FFIEC") Interagency Statement on the Year 2000 and
subsequent guidance documents (the "FFIEC Requirements"). Company has made its
Year 2000 project assessment and remediation plan available to Wells Fargo for
review.
3. Representations and Warranties of Wells Fargo. Wells Fargo
represents and warrants to Company as follows:
(a) Organization and Authority. Wells Fargo is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, is duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and failure to be so qualified would
have a material adverse effect on Wells Fargo and its subsidiaries taken as a
whole and has corporate power and authority to own its properties and assets and
to carry on its business as it is now being conducted. Wells Fargo is registered
as a bank holding company with the Federal Reserve Board under the BHC Act.
(b) Wells Fargo Subsidiaries. Schedule 3(b) sets forth a complete and
correct list as of December 31, 1998, of Wells Fargo's Significant Subsidiaries
(as defined in Regulation S-X promulgated by the SEC) (individually a "Wells
Fargo Subsidiary" and collectively the "Wells Fargo Subsidiaries"), all shares
of the outstanding capital stock of each of which, except as set forth in
Schedule 3(b), are owned directly or indirectly by Wells Fargo. No equity
security of any Wells Fargo Subsidiary is or may be required to be issued to any
person or entity other than Wells Fargo by reason of any option, warrant, scrip,
preemptive right, right to subscribe to, call or commitment of any character
whatsoever relating to, or security or right convertible into, shares of any
capital stock of such subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Wells Fargo Subsidiary is bound to
issue additional shares of its capital stock, or options, warrants or rights to
purchase or acquire any additional shares of its capital stock. Subject to 12
U.S.C. ss. 55 (1982), all of such shares so owned by Wells Fargo are fully paid
and nonassessable and are owned by it free and clear of any lien, claim, charge,
option, encumbrance or agreement with respect thereto. Each Wells Fargo
Subsidiary is a corporation or national banking association duly organized,
validly existing, duly qualified to do business and in good standing under the
laws of its jurisdiction of incorporation, and has corporate power and authority
to own or lease its properties and assets and to carry on its business as it is
now being conducted.
(c) Wells Fargo Capitalization. As of September 30, 1999, the
authorized capital stock of Wells Fargo consists of (i) 20,000,000 shares of
Preferred Stock, without par value, of which as of the close of business on
September 30, 1999, 980,000 shares of Cumulative Tracking Preferred Stock, at
$200 stated value, 9,532 shares of ESOP Cumulative Convertible Preferred Stock,
at $1,000 stated value, 19,790 shares of 1995 ESOP Cumulative Convertible
Preferred Stock, at $1,000 stated value, 21,111 shares of 1996 ESOP Cumulative
Convertible Preferred Stock, at $1,000 stated value, 13,639 shares of 1997 ESOP
Cumulative Convertible Preferred Stock, at $1,000 stated value, 8,472 shares of
1998 ESOP Cumulative Convertible Preferred Stock, $1,000 stated value, 22,653
shares of 1999 ESOP Cumulative Convertible Preferred Stock, $1,000 stated value,
1,500,000 shares of Adjustable-Rate Cumulative Preferred Stock, Series B, $50
stated value, and 4,000,000 shares of 6.59% Adjustable Rate Noncumulative
Preferred Stock, Series H, $50 stated value, were outstanding; (ii) 4,000,000
shares of Preference Stock, without par value, of which as of the close of
business on September 30, 1999, no shares were outstanding; and (iii)
4,000,000,000 shares of Common Stock, $1-2/3 par value, of which as of the close
of business on September 30, 1999, 1,649,763,637 shares were outstanding and
16,331,628 shares were held in the treasury. All of the outstanding shares of
capital stock of Wells Fargo have been duly and validly authorized and issued
and are fully paid and nonassessable.
(d) Authorization. Wells Fargo has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution, delivery and performance of this Agreement by Wells Fargo and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Wells Fargo. No approval or consent by the
stockholders of Wells Fargo is necessary for the execution and delivery of this
Agreement and the Merger Agreement and the consummation of the transactions
contemplated hereby and thereby. Subject to such approvals of government
agencies and other governing boards having regulatory authority
<PAGE>
over Wells Fargo as may be required by statute or regulation, this Agreement is
a valid and binding obligation of Wells Fargo enforceable against Wells Fargo in
accordance with its terms.
Neither the execution, delivery and performance by Wells Fargo of this
Agreement or the Merger Agreement, nor the consummation of the transactions
contemplated hereby and thereby, nor compliance by Wells Fargo with any of the
provisions hereof or thereof, will (i) violate, conflict with, or result in a
breach of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result in
the termination of, or accelerate the performance required by, or result in a
right of termination or acceleration of, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
Wells Fargo or any Wells Fargo Subsidiary under any of the terms, conditions or
provisions of, (x) its certificate of incorporation or by-laws or (y) any
material note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation to which Wells Fargo or any Wells
Fargo Subsidiary is a party or by which it may be bound, or to which Wells Fargo
or any Wells Fargo Subsidiary or any of the properties or assets of Wells Fargo
or any Wells Fargo Subsidiary may be subject, or (ii) subject to compliance with
the statutes and regulations referred to in the next paragraph, violate any
statute, rule or regulation or, to the best knowledge of Wells Fargo, violate
any judgment, ruling, order, writ, injunction or decree applicable to Wells
Fargo or any Wells Fargo Subsidiary or any of their respective properties or
assets.
Other than in connection with or in compliance with the provisions of
the Securities Act, the Exchange Act, the securities or blue sky laws of the
various states or filings, consents, reviews, authorizations, approvals or
exemptions required under the BHC Act or the HSR Act, and filings required to
effect the Merger under Delaware law, no notice to, filing with, exemption or
review by, or authorization, consent or approval of, any public body or
authority is necessary for the consummation by Wells Fargo of the transactions
contemplated by this Agreement and the Merger Agreement.
(e) Wells Fargo Financial Statements. The consolidated balance sheets
of Wells Fargo and Wells Fargo's subsidiaries as of December 31, 1998 and 1997
and related consolidated statements of income, changes in stockholders' equity
and comprehensive income, and cash flows for the three years ended December 31,
1998, together with the notes thereto, audited by KPMG LLP and included in Wells
Fargo's Annual Report on Form 10-K for the fiscal year ended December 31, 1998
(the "Wells Fargo 10-K") as filed with the SEC, and the unaudited consolidated
balance sheets of Wells Fargo and its subsidiaries as of September 30, 1999 and
the related unaudited consolidated statements of income, changes in
stockholders' equity and comprehensive income, and cash flows for the nine (9)
months then ended included in Wells Fargo's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1999, as filed with the SEC
(collectively, the "Wells Fargo Financial Statements"), have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis and present fairly (subject, in the case of financial statements for
interim periods, to normal recurring adjustments) the consolidated financial
position of Wells Fargo and its subsidiaries at the dates and the consolidated
results of operations, changes in financial position and cash flows of Wells
Fargo and its subsidiaries for the periods stated therein. The Year 2000
disclosure contained in Wells Fargo's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999, as filed with the SEC and designated as the
Year 2000 Readiness Disclosures related to the Year 2000 Information and
Readiness Disclosure Act, is true and correct in all material respects as of the
date hereof.
(f) Reports. Since December 31, 1995, Wells Fargo and each Wells Fargo
Subsidiary has filed all reports, registrations and statements, together with
any required amendments thereto, that it was required to file with (i) the SEC,
including, but not limited to, Forms 10-K, Forms 10-Q and proxy statements, (ii)
the Federal Reserve Board, (iii) the FDIC, (iv) the Comptroller and (v) any
applicable state securities or banking authorities. All such reports and
statements filed with any such regulatory body or authority are collectively
referred to herein as the "Wells Fargo Reports." As of their respective dates,
the Wells Fargo Reports complied in all material respects with all the rules and
regulations promulgated by the SEC, the Federal Reserve Board, the FDIC, the
Comptroller and any applicable state securities or banking authorities, as the
case may be, and did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(g) Properties and Leases. Except as may be reflected in the Wells
Fargo Financial Statements and except for any lien for current taxes not yet
delinquent, Wells Fargo and each Wells Fargo Subsidiary has good title free and
<PAGE>
clear of any material liens, claims, charges, options, encumbrances or similar
restrictions to all the real and personal property reflected in Wells Fargo's
consolidated balance sheet as of September 30, 1999 included in Wells Fargo's
Quarterly Report on Form 10-Q, and all real and personal property acquired since
such date, except such real and personal property that has been disposed of in
the ordinary course of business. All leases of real property and all other
leases material to Wells Fargo or any Wells Fargo Subsidiary pursuant to which
Wells Fargo or such Wells Fargo Subsidiary, as lessee, leases real or personal
property, are valid and effective in accordance with their respective terms, and
there is not, under any such lease, any material existing default by Wells Fargo
or such Wells Fargo Subsidiary or any event which, with notice or lapse of time
or both, would constitute such a material default. Substantially all Wells
Fargo's and each Wells Fargo Subsidiary's buildings and equipment in regular use
have been well maintained and are in good and serviceable condition, reasonable
wear and tear excepted.
(h) Taxes. Each of Wells Fargo and the Wells Fargo Subsidiaries has
filed all material federal, state, county, local and foreign tax returns,
including information returns, required to be filed by it, and paid or made
adequate provision for the payment of all taxes owed by it, including those with
respect to income, withholding, social security, unemployment, workers
compensation, franchise, ad valorem, premium, excise and sales taxes, and no
taxes shown on such returns to be owed by it or assessments received by it are
delinquent. The federal income tax returns of Wells Fargo and the Wells Fargo
Subsidiaries for the fiscal year ended December 31, 1982, and for all fiscal
years prior thereto, are for the purposes of routine audit by the Internal
Revenue Service closed because of the statute of limitations, and no claims for
additional taxes for such fiscal years are pending. Except only as set forth on
Schedule 3(h), (i) neither Wells Fargo nor any Wells Fargo Subsidiary is a party
to any pending action or proceeding, nor to Wells Fargo's knowledge is any such
action or proceeding threatened by any governmental authority, for the
assessment or collection of taxes, interest, penalties, assessments or
deficiencies that could reasonably be expected to have any material adverse
effect on Wells Fargo and its subsidiaries taken as a whole, and (ii) no issue
has been raised by any federal, state, local or foreign taxing authority in
connection with an audit or examination of the tax returns, business or
properties of Wells Fargo or any Wells Fargo Subsidiary that has not been
settled, resolved and fully satisfied, or adequately reserved for. Each of Wells
Fargo and the Wells Fargo Subsidiaries has paid all taxes owed or which it is
required to withhold from amounts owing to employees, creditors or other third
parties.
(i) Absence of Certain Changes. Since December 31, 1998, there has been
no change in the business, financial condition or results of operations of Wells
Fargo or any Wells Fargo Subsidiary which has had, or may reasonably be expected
to have, a material adverse effect on the business, financial condition or
results of operations of Wells Fargo and its subsidiaries taken as a whole
(other than changes in banking laws or regulations, or interpretations thereof,
that affect the banking industry generally or changes in generally accepted
accounting principles or regulatory account requirements applicable to banks or
their holding companies generally or changes to the general level of interest
rates or other economic changes affecting banks generally).
(j) Commitments and Contracts. Except as set forth on Schedule 3(j), as
of December 31, 1998 neither Wells Fargo nor any Wells Fargo Subsidiary is a
party or subject to any of the following (whether written or oral, express or
implied):
(i) any labor contract or agreement with any labor union;
(ii) any contract not made in the ordinary course of business
containing covenants which materially limit the ability of Wells Fargo or any
Wells Fargo Subsidiary to compete in any line of business or with any person or
which involve any material restriction of the geographical area in which, or
method by which, Wells Fargo or any Wells Fargo Subsidiary may carry on its
business (other than as may be required by law or applicable regulatory
authorities);
(iii) any other contract or agreement which is a "material
contract" within the meaning of Item 601(b)(10) of Regulation S-K.
(k) Litigation and Other Proceedings. There is no pending or, to the
best knowledge of Wells Fargo, threatened, claim, action, suit, investigation or
proceeding, against Wells Fargo or any Wells Fargo Subsidiary nor is Wells Fargo
or any Wells Fargo Subsidiary subject to any order, judgment or decree, except
for matters which, in the
<PAGE>
aggregate, will not have, or cannot reasonably be expected to have, a material
adverse effect on the business, financial condition or results of operations of
Wells Fargo and its subsidiaries taken as a whole.
(l) Insurance. Wells Fargo and each Wells Fargo Subsidiary is presently
insured or self insured, and during each of the past five calendar years (or
during such lesser period of time as Wells Fargo has owned such Wells Fargo
Subsidiary) has been insured or self-insured, for reasonable amounts with
financially sound and reputable insurance companies against such risks as
companies engaged in a similar business would, in accordance with good business
practice, customarily be insured and has maintained all insurance required by
applicable law and regulation.
(m) Compliance with Laws. Wells Fargo and each Wells Fargo Subsidiary
has all permits, licenses, authorizations, orders and approvals of, and has made
all filings, applications and registrations with, federal, state, local or
foreign governmental or regulatory bodies that are required in order to permit
it to own or lease its properties or assets and to carry on its business as
presently conducted and that are material to the business of Wells Fargo or such
Wells Fargo Subsidiary; all such permits, licenses, certificates of authority,
orders and approvals are in full force and effect, and to the best knowledge of
Wells Fargo, no suspension or cancellation of any of them is threatened; and all
such filings, applications and registrations are current. The conduct by Wells
Fargo and each Wells Fargo Subsidiary of its business and the condition and use
of its properties does not violate or infringe, in any respect material to any
such business, any applicable domestic (federal, state or local) or foreign law,
statute, ordinance, license or regulation. Neither Wells Fargo nor any Wells
Fargo Subsidiary is in default under any order, license, regulation or demand of
any federal, state, municipal or other governmental agency or with respect to
any order, writ, injunction or decree of any court. Except for statutory or
regulatory restrictions of general application, no federal, state, municipal or
other governmental authority has placed any restrictions on the business or
properties of Wells Fargo or any Wells Fargo Subsidiary which reasonably could
be expected to have a material adverse effect on the business or properties of
Wells Fargo and its subsidiaries taken as a whole.
(n) Labor. No work stoppage involving Wells Fargo or any Wells Fargo
Subsidiary is pending or, to the best knowledge of Wells Fargo, threatened.
Neither Wells Fargo nor any Wells Fargo Subsidiary is involved in, or threatened
with or affected by, any labor dispute, arbitration, lawsuit or administrative
proceeding that could materially and adversely affect the business of Wells
Fargo or such Wells Fargo Subsidiary. Except as set forth on Schedule 3(j),
employees of Wells Fargo and the Wells Fargo Subsidiaries are not represented by
any labor union nor are any collective bargaining agreements otherwise in effect
with respect to such employees.
(o) Wells Fargo Benefit Plans.
(i) For purposes of this Section 3(o), the term "Wells Fargo
Plan" or "Wells Fargo Plans" means all employee benefit plans as defined in
Section 3(3) of ERISA, to which Wells Fargo contributes, sponsors, or otherwise
has any obligations.
(ii) No Wells Fargo Plan is a "multiemployer plan" within the
meaning of Section 3(37) of ERISA.
(iii) Each Wells Fargo Plan is and has been in all material
respects operated and administered in accordance with its provisions and
applicable law, including, if applicable, ERISA and the Code.
(iv) Each Wells Fargo Plan intended to be qualified under
Section 401(a) of the Code has received a favorable determination letter from
the Internal Revenue Service stating that the Wells Fargo Plan (including all
amendments) is tax qualified under Section 401(a) of the Code and Wells Fargo
knows of no reason that any such Wells Fargo Plan is not qualified within the
meaning of Section 401(a) of the Code and knows of no reason that each related
Wells Fargo Plan trust is not exempt from taxation under Section 501(a) of the
Code.
(v) All contributions, premium payments, and other payments
required to be made in connection with the Wells Fargo Plans as of the date of
this Agreement have been made.
<PAGE>
(vi) With respect to each Wells Fargo Plan that is subject to
Section 301 of ERISA or Section 412 of the Code, neither Wells Fargo nor any
Wells Fargo Subsidiary is liable for any accumulated funding deficiency as that
term is defined in Section 412 of the Code.
(vii) The present value of all benefits vested and all
benefits accrued under each Wells Fargo Plan that is subject to Title IV of
ERISA does not, in each case, exceed the value of the assets of the Wells Fargo
Plans allocable to such vested or accrued benefits as of the end of the most
recent Plan Year.
(p) Registration Statement, etc. None of the information regarding
Wells Fargo and its subsidiaries supplied or to be supplied by Wells Fargo for
inclusion in (i) the Registration Statement, (ii) the Proxy Statement, or (iii)
any other documents to be filed with the SEC or any regulatory authority in
connection with the transactions contemplated hereby or by the Merger Agreement
will, at the respective times such Registration Statement, Proxy Statement and
other documents are filed with the SEC or any regulatory authority and, in the
case of the Registration Statement, when it becomes effective and, with respect
to the Proxy Statement, when mailed, and, in the case of the Proxy Statement or
any amendment thereof or supplement thereto, at the time of the meeting of
stockholders referred to in paragraph 4(c), and at the Effective Time of the
Merger 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 statements
contained therein, in light of the circumstances under which they were made, not
misleading. All documents which Wells Fargo and the Wells Fargo Subsidiaries are
responsible for filing with the SEC and any other regulatory authority in
connection with the Merger will comply as to form in all material respects with
the provisions of applicable law.
(q) Brokers and Finders. Neither Wells Fargo nor any Wells Fargo
Subsidiary nor any of their respective officers, directors or employees has
employed any broker or finder or incurred any liability for any financial
advisory fees, brokerage fees, commissions or finder's fees, and no broker or
finder has acted directly or indirectly for Wells Fargo or any Wells Fargo
Subsidiary in connection with this Agreement and the Merger Agreement or the
transactions contemplated hereby and thereby.
(r) No Defaults. Neither Wells Fargo nor any Wells Fargo Subsidiary is
in default, nor has any event occurred that, with the passage of time or the
giving of notice, or both, would constitute a default under any material
agreement, indenture, loan agreement or other instrument to which it is a party
or by which it or any of its assets is bound or to which any of its assets is
subject, the result of which has had or could reasonably be expected to have a
material adverse effect upon Wells Fargo and its subsidiaries taken as a whole.
To the best of Wells Fargo's knowledge, all parties with whom Wells Fargo or any
Wells Fargo Subsidiary has material leases, agreements or contracts or who owe
to Wells Fargo or any Wells Fargo Subsidiary material obligations, other than
those arising in the ordinary course of the banking business of the Wells Fargo
Subsidiaries are in compliance therewith in all material respects.
(s) Environmental Liability. There is no legal, administrative, or
other proceeding, claim, or action of any nature seeking to impose, or that
could result in the imposition, on Wells Fargo or any Wells Fargo Subsidiary of
any liability relating to the release of hazardous substances as defined under
any local, state or federal environmental statute, regulation or ordinance
including, without limitation, CERCLA, pending or to the best of Wells Fargo's
knowledge, threatened against Wells Fargo or any Wells Fargo Subsidiary, the
result of which has had or could reasonably be expected to have a material
adverse effect upon Wells Fargo and its subsidiaries taken as a whole; to the
best of Wells Fargo's knowledge, there is no reasonable basis for any such
proceeding, claim or action; and to the best of Wells Fargo's knowledge, neither
Wells Fargo nor any Wells Fargo Subsidiary is subject to any agreement, order,
judgment, or decree by or with any court, governmental authority or third party
imposing any such environmental liability.
(t) Merger Co. As of the Closing Date, Merger Co. will be a corporation
duly organized, validly existing, duly qualified to do business and in good
standing under the laws of its jurisdiction of incorporation, and will have
corporate power and authority to own or lease its properties and assets and to
carry on its business. As of the Closing Date, the execution, delivery and
performance by Merger Co. of the Merger Agreement will have been duly authorized
by Merger Co.'s Board of Directors and stockholders, and the Merger Agreement
will be a valid and binding obligation of Merger Co., enforceable against Merger
Co. in accordance with its terms.
<PAGE>
4. Covenants of Company. Company covenants and agrees with Wells Fargo
as follows:
(a) Affirmative Covenants. Except as (i) otherwise permitted or
required by this Agreement, (ii) Wells Fargo shall otherwise agree in writing,
which agreement shall not be unreasonably withheld or delayed, or (iii) as set
forth in Schedule 4(a), from the date hereof until the Effective Time of the
Merger, Company, and each Company Subsidiary will: maintain its corporate
existence in good standing; maintain the general character of its business and
conduct its business in its ordinary and usual manner; extend credit in
accordance with existing lending policies and provide Wells Fargo access to its
loan files (including credits extended after the date hereof), except that it
shall not, without the prior written consent of Wells Fargo (which shall be
deemed to be waived if Wells Fargo has made no response by the end of the second
complete business day following the receipt, as evidenced by confirmed
facsimile, of the request by John Nelson or the Wells Fargo representative
designated by John Nelson in writing), (A) make any new loan or modify,
restructure or renew any existing loan (except pursuant to commitments made
prior to the date of this Agreement) to any borrower if the amount of the
resulting loan, when aggregated with all other loans or extensions of credit to
such person (other than consumer-purpose loans and loans which are for less than
$100,000), would be in excess of $2,500,000, or (B) make any extensions of
credit aggregating in excess of $1,000,000 to a person or entity that is not a
borrower as of the date hereof or that has not been a borrower within twelve
months prior to the date hereof; maintain proper business and accounting records
in accordance with generally accepted principles; maintain its properties in
good repair and condition, ordinary wear and tear excepted; maintain in all
material respects presently existing insurance coverage or its commercial
equivalent; use its commercially reasonable efforts to preserve its business
organization intact, to keep the services of its present principal employees and
to preserve its good will and the good will of its suppliers, customers and
others having business relationships with it; use its commercially reasonable
efforts to obtain any approvals or consents required to maintain existing leases
and other contracts in effect following the Merger; comply in all material
respects with all laws, regulations, ordinances, codes, orders, licenses and
permits applicable to the properties and operations of Company and each Company
Subsidiary the non-compliance with which reasonably could be expected to have a
material adverse effect on Company and the Company Subsidiaries taken as a
whole; and permit Wells Fargo and its representatives (including KPMG LLP) to
examine its and its subsidiaries books, records and properties and to interview
officers, employees and agents at all reasonable times when it is open for
business. No such examination by Wells Fargo or its representatives either
before or after the date of this Agreement shall in any way affect, diminish or
terminate any of the representations, warranties or covenants of Company herein
expressed.
(b) Negative Covenants. Except as (i) otherwise contemplated or
required by this Agreement, (ii) Wells Fargo shall otherwise agree in writing,
which agreement shall not be unreasonably withheld or delayed, or (iii) as set
forth in Schedule 4(b), from the date hereof until the Effective Time of the
Merger, Company and each Company Subsidiary will not (without the prior written
consent of Wells Fargo): amend or otherwise change its certificate of
incorporation or association or by-laws; issue or sell or authorize for issuance
or sale, or grant any options or make other agreements with respect to the
issuance or sale or conversion of, any shares of its capital stock, phantom
shares or other share-equivalents, or any other of its securities; authorize or
incur any long-term debt (other than deposit liabilities); mortgage, pledge or
subject to lien or other encumbrance any of its properties, except in the
ordinary course of business; enter into any material agreement, contract or
commitment which (i) is for a term of one (1) year or more and is in excess of
$100,000, (ii) contains any covenant that limits the ability of Company or any
Company Subsidiary to compete in any line of business or with any person or
which involves any restriction of the geographical area in which, or method by
which, Company or any Company Subsidiary may carry on its business, (iii) is
related to data processing, ATMs or related technology and is in excess of
$100,000, or (iv) is in excess of $250,000 except banking transactions in the
ordinary course of business and in accordance with policies and procedures in
effect on the date hereof; make any investments except U. S. Treasury and
federal agency securities made by the Company's bank subsidiary in the ordinary
course of business for terms of up to three (3) years and in amounts of
$1,000,000 or less provided, however, that to accommodate the collateral
requirements of secured depositors such bank subsidiary may make investments in
U.S. Treasury and federal agency securities for terms of up to one (1) year and
in amounts of $50,000,000 or less; amend or terminate any Plan except as
required by law or by paragraph 4(j) hereof or by the proviso in the following
clause; make any contributions to any Plan except as required by the terms of
such Plan in effect as of the date hereof, provided, however, that the Company
401(k) Profit Sharing Plan may be amended to permit, and the Company may make, a
profit sharing contribution for the year 1999 not to exceed $7,600,000 and a
profit sharing contribution for the year 2000 not to exceed an aggregate
annualized sum of $7,600,000, which sum shall be prorated for the period between
January 1, 2000 and the Effective Time of
<PAGE>
the Merger, and provided, further, that such profit sharing contribution may be
calculated in accordance with past practice and without regard to the effect of
the accruals and reserves to be taken by the Company pursuant to paragraph 4(m)
hereof; declare, set aside, make or pay any dividend or other distribution with
respect to its capital stock except any dividend declared by a Company
Subsidiary's Board of Directors in accordance with applicable law and
regulation, provided, however, that the Board of Directors of Company may
declare and pay cash dividends to the Company stockholders out of the net
earnings of the Company between the date of this Agreement and the Effective
Time of the Merger in accordance with applicable law and regulation and in
accordance with past practice in an amount not to exceed an annualized rate of
$0.60 per share and provided, further, that Company stockholders shall be
entitled to have a cash dividend declared on Company Common Stock in the event
the Closing Date does not occur prior to the record date for the cash dividend,
if any, payable on Wells Fargo Common Stock in the calendar quarter in which the
Closing shall occur but not in the event that the Closing Date occurs prior to
such record date (it being the intention of the parties that holders of shares
of Company Common Stock shall not receive more than one dividend or fail to
receive one dividend, for any single calendar quarter on their shares of Company
Common Stock or shares of Wells Fargo Common Stock received in the Merger, as
the case may be), and provided, further, that if Wells Fargo declares a dividend
(other than its regular cash dividend) on Wells Fargo Common Stock with an
ex-dividend date after the date on which the Board of Governors of the Federal
Reserve System approves the Merger but prior to the Effective Date, the Board of
Directors of the Company may also declare and pay cash dividends to the Company
stockholders in an amount per share of Company Common Stock equal to the fair
market value per share of Wells Fargo Common Stock of such dividend multiplied
by the number of shares of Wells Fargo Common stock each share of Company Common
Stock is exchanged for in the Merger; redeem, purchase or otherwise acquire,
directly or indirectly, any of the capital stock of Company; increase the
compensation of any officers, directors or executive employees, except pursuant
to existing compensation plans and practices; sell or otherwise dispose of any
shares of the capital stock of any Company Subsidiary; or sell or otherwise
dispose of any of its assets or properties other than in the ordinary course of
business.
(c) Stockholder Meeting. The Board of Directors of Company will duly
call, and will cause to be held not later than thirty (30) business days
following the effective date of the Registration Statement (or on such other
date as may be agreed to by the parties), a meeting of its stockholders and will
direct that this Agreement and the Merger Agreement be submitted to a vote at
such meeting. The Board of Directors of Company will (i) cause proper notice of
such meeting to be given to its stockholders in compliance with the Delaware
General Corporation Law and other applicable law and regulation, and (ii) except
to the extent that the Board of Directors of Company shall conclude in good
faith, after taking into account the advice of its outside counsel, that to do
so would violate its fiduciary obligations under applicable law, (A) recommend
by the affirmative vote of the Board of Directors a vote in favor of approval of
this Agreement and the Merger Agreement, and (B) use its best efforts to obtain
stockholder approval thereof. Nothing contained in this Agreement shall prevent
the Board of Directors of the Company from complying with Rules 14e-2 and 14d-9
under the Exchange Act with respect to a Takeover Proposal (as defined in
Section 9(a)(iv)) or making any disclosure required by applicable law.
(d) Information Furnished by Company. Company will furnish or cause to
be furnished to Wells Fargo all the information concerning Company and the
Company Subsidiaries required for inclusion in the Registration Statement, or
any statement or application made by Wells Fargo to any governmental body in
connection with the transactions contemplated by this Agreement. Any financial
statement for any fiscal year provided under this paragraph must include the
audit opinion and the consent of Deloitte & Touche LLP to use such opinion in
such Registration Statement.
(e) Approvals. Company will take all necessary corporate and other
action and use its commercially reasonable efforts to obtain all approvals of
regulatory authorities, consents and other approvals required of Company to
carry out the transactions contemplated by this Agreement and will cooperate
with Wells Fargo to obtain all such approvals and consents required of Wells
Fargo.
(f) Delivery of Closing Documents. Company will use its best efforts to
deliver to the Closing all opinions, certificates and other documents required
to be delivered by it at the Closing.
(g) Confidential Information. Company will hold in confidence all
documents and information concerning Wells Fargo and its subsidiaries furnished
to Company and its representatives in connection with the transactions
<PAGE>
contemplated by this Agreement and will not release or disclose such information
to any other person, except as required by law and except to Company's outside
professional advisers in connection with this Agreement, with the same
undertaking from such professional advisers. If the transactions contemplated by
this Agreement shall not be consummated, such confidence shall be maintained and
such information shall not be used in competition with Wells Fargo (except to
the extent that such information can be shown to be previously known to Company,
in the public domain, or later acquired by Company from other legitimate
sources) and, upon request, all such documents, any copies thereof and extracts
therefrom shall immediately thereafter be returned to Wells Fargo.
(h) Competing Transactions. Neither Company, nor any Company
Subsidiary, nor any director, officer, representative or agent thereof, will,
directly or indirectly, solicit, authorize the solicitation of or except to the
extent that the Board of Directors of Company shall conclude in good faith,
after taking into account the written advice of its outside counsel, that to
fail to do so could reasonably be determined to violate its fiduciary
obligations under applicable law, enter into any discussions with any
corporation, partnership, person or other entity or group (other than Wells
Fargo) concerning any offer or possible offer (i) to purchase any shares of
common stock, any option or warrant to purchase any shares of common stock, any
securities convertible into any shares of such common stock, or any other equity
security of Company or any Company Subsidiary, (ii) to make a tender or exchange
offer for any shares of such common stock or other equity security, (iii) to
purchase, lease or otherwise acquire the assets of Company or any Company
Subsidiary except in the ordinary course of business, or (iv) to merge,
consolidate or otherwise combine with Company or any Company Subsidiary. If any
corporation, partnership, person or other entity or group makes an offer or
inquiry to Company or any Company Subsidiary concerning any of the foregoing,
Company or such Company Subsidiary will promptly disclose such offer or inquiry,
including the terms thereof, to Wells Fargo.
(i) Public Disclosure. Company shall consult with Wells Fargo as to the
form and substance of any proposed press release or other proposed public
disclosure of matters related to this Agreement or any of the transactions
contemplated hereby.
(j) Benefit Plans. Company and each Company Subsidiary will take all
action necessary or required (i) to terminate or amend as of the Effective Date
of the Merger, if requested by Wells Fargo, all qualified retirement and welfare
benefit plans and all non-qualified benefit plans and compensation arrangements
to facilitate the merger of such plans with Wells Fargo plans without gaps in
coverage for participants in the plans and without duplication of costs caused
by the continuation of such plans after coverage is available under Wells Fargo
plans, and (ii) to submit application to the Internal Revenue Service for a
favorable determination letter for each of the Plans that is subject to the
qualification requirements of Section 401(a) of the Code prior to the Effective
Date of the Merger if a new determination letter is required for any Plan which
is to be amended pursuant to paragraph 4(b) or terminated or amended pursuant to
subparagraph 4(j)(i).
(k) [Intentionally left blank].
(l) Affiliate Letters. Company shall use its commercially reasonable
efforts to obtain and deliver prior to the Effective Date of the Merger signed
representations substantially in the form attached hereto as Exhibit B to Wells
Fargo by each executive officer, director or stockholder of Company who may
reasonably be deemed an "affiliate" of Company within the meaning of such term
as used in Rule 145 under the Securities Act.
(m) Accruals and Reserves. Company shall establish, immediately prior
to the Effective Time of the Merger, such additional accruals and reserves as
may be necessary (i) to conform Company's accounting and credit loss reserve
practices and methods to those of Wells Fargo, consistent with Wells Fargo's
plans with respect to the conduct of Company's business following the Merger and
(ii) to the extent permitted by generally accepted accounting principles, to
provide for the costs and expenses relating to the consummation by Company of
the Merger and the other transactions contemplated by this Agreement.
(n) Environmental Assessments. Company shall obtain, at its sole
expense, Phase I environmental assessments for each owned bank facility and each
non-residential OREO property (other than those listed in Schedule 4(n)). Oral
reports of such environmental assessments shall be delivered to Wells Fargo no
later than four (4) weeks and written reports shall be delivered to Wells Fargo
no later than eight (8) weeks from the date of this
<PAGE>
Agreement. Company shall obtain, at its sole expense, Phase II environmental
assessments for properties identified by Wells Fargo on the basis of the results
of such Phase I environmental assessments. Company shall obtain a survey and
assessment of all potential asbestos containing material in owned or leased real
properties (other than OREO property) and a written report of the results shall
be delivered to Wells Fargo within four (4) weeks of execution of this
Agreement.
(o) Title Commitments and Boundary Surveys. Company shall obtain, at
its sole expense, commitments for title insurance and boundary surveys for each
owned bank facility which shall be delivered to Wells Fargo no later than four
(4) weeks from the date of this Agreement.
(p) Year 2000. Company will comply with the FFIEC Requirements and will
not rely on the consummation of the transactions contemplated by this Agreement
to satisfy its FFIEC requirements. Company will provide Wells Fargo with access
to its Year 2000 project and remediation plan documentation and permit Wells
Fargo to review and investigate Company's continuing Year 2000 compliance
efforts and the results thereof.
5. Covenants of Wells Fargo. Wells Fargo covenants and agrees with
Company as follows:
(a) Affirmative Covenants. From the date hereof until the Effective
Time of the Merger, Wells Fargo will maintain its corporate existence in good
standing; conduct, and cause the Wells Fargo Subsidiaries to conduct, their
respective businesses in compliance with all material obligations and duties
imposed on them by all laws, governmental regulations, rules and ordinances, and
judicial orders, judgments and decrees applicable to Wells Fargo or the Wells
Fargo Subsidiaries, their businesses or their properties; maintain all books and
records of it and the Wells Fargo Subsidiaries, including all financial
statements, in accordance with the accounting principles and practices
consistent with those used for the Wells Fargo Financial Statements, except for
changes in such principles and practices required under generally accepted
accounting principles.
(b) Information Provided by Wells Fargo. Wells Fargo will furnish to
Company all the information concerning Wells Fargo required for inclusion in a
proxy statement or statements to be sent to the stockholders of Company, or in
any statement or application made by Company to any governmental body in
connection with the transactions contemplated by this Agreement. Any financial
statement for any fiscal year provided under this paragraph must include the
audit opinion and the consent of KPMG LLP to use such opinion in the proxy
statement.
(c) Registration Statement. As promptly as practicable after the
execution of this Agreement, Wells Fargo will file with the SEC the Registration
Statement and any other applicable documents, relating to the shares of Wells
Fargo Common Stock to be delivered to the stockholders of Company pursuant to
the Merger Agreement, and will use its best efforts to cause the Registration
Statement to become effective. At the time the Registration Statement becomes
effective, the Registration Statement will comply in all material respects with
the provisions of the Securities Act and the published rules and regulations
thereunder, and 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
statements therein not false or misleading, and at the time of mailing thereof
to the Company stockholders, at the time of the Company stockholders' meeting
referred to in paragraph 4(c) hereof and at the Effective Time of the Merger the
prospectus included as part of the Registration Statement, as amended or
supplemented by any amendment or supplement filed by Wells Fargo (hereinafter
the "Prospectus"), will not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
false or misleading; provided, however, that none of the provisions of this
subparagraph shall apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished by Company or any Company Subsidiary for use in the
Registration Statement or the Prospectus.
(d) Stock Exchange Listings. Wells Fargo will file all documents
required to be filed to list the Wells Fargo Common Stock to be issued pursuant
to the Merger Agreement on the New York Stock Exchange and the Chicago Stock
Exchange and use its best efforts to effect said listings.
(e) Wells Fargo Shares. The shares of Wells Fargo Common Stock to be
issued by Wells Fargo to the stockholders of Company pursuant to this Agreement
and the Merger Agreement will, upon such issuance and delivery to said
stockholders pursuant to the Merger Agreement, be duly authorized, validly
issued, fully paid and
<PAGE>
nonassessable. The shares of Wells Fargo Common Stock to be delivered to the
stockholders of Company pursuant to the Merger Agreement are and will be free of
any preemptive rights of the stockholders of Wells Fargo.
(f) Blue Sky Approvals. Wells Fargo will file all documents required to
obtain, prior to the Effective Time of the Merger, all necessary Blue Sky
permits and approvals, if any, required to carry out the transactions
contemplated by this Agreement, will pay all expenses incident thereto and will
use its best efforts to obtain such permits and approvals.
(g) Approvals. As promptly as practicable after the execution of this
Agreement, Wells Fargo will take all necessary corporate and other action and
file all documents required to obtain and will use its best efforts to obtain
all approvals of regulatory authorities, consents and approvals required of it
to carry out the transactions contemplated by this Agreement and will cooperate
with Company to obtain all such approvals and consents required by Company.
(h) Confidential Information. Wells Fargo will hold in confidence all
documents and information concerning Company and Company's Subsidiaries
furnished to it and its representatives in connection with the transactions
contemplated by this Agreement and will not release or disclose such information
to any other person, except as required by law and except to its outside
professional advisers in connection with this Agreement, with the same
undertaking from such professional advisers. If the transactions contemplated by
this Agreement shall not be consummated, such confidence shall be maintained and
such information shall not be used in competition with Company (except to the
extent that such information can be shown to be previously known to Wells Fargo,
in the public domain, or later acquired by Wells Fargo from other legitimate
sources) and, upon request, all such documents, copies thereof or extracts
therefrom shall immediately thereafter be returned to Company.
(i) Merger Filings. Wells Fargo will file any documents or agreements
required to be filed in connection with the Merger under the Delaware General
Corporation Law.
(j) Delivery of Closing Documents. Wells Fargo will use its best
efforts to deliver to the Closing all opinions, certificates and other documents
required to be delivered by it at the Closing.
(k) Public Disclosure. Wells Fargo shall consult with Company as to the
form and substance of any proposed press release or other proposed public
disclosure of matters related to this Agreement or any of the transactions
contemplated hereby.
(l) Notice of Regulatory Approvals. Wells Fargo shall give Company
notice of receipt of the regulatory approvals referred to in paragraph 7(e).
(m) Indemnification of Directors and Officers. With respect to the
indemnification of directors and officers, Wells Fargo agrees as follows:
(i) Wells Fargo shall ensure that all rights to
indemnification and all limitations of liability existing in favor of any person
who is now, or has been at any time prior to the date hereof, or who becomes
prior to the Effective Time of the Merger, a director or officer of Company or
any Company Subsidiary, (an "Indemnified Party" and, collectively, the
"Indemnified Parties") in Company's Certificate of Incorporation or By-laws or
similar governing documents of any Company Subsidiary, as applicable in the
particular case and as in effect on the date hereof, shall, with respect to
claims arising from (A) facts or events that occurred before the Effective Time
of the Merger, or (B) this Agreement or any of the transactions contemplated by
this Agreement, whether in any case asserted or arising before or after the
Effective Time of the Merger, survive the Merger and shall continue in full
force and effect. Nothing contained in this paragraph 5(m)(i) shall be deemed to
preclude the liquidation, consolidation or merger of Company or any Company
Subsidiary, in which case all of such rights to indemnification and limitations
on liability shall be deemed to survive and continue as contractual rights
notwithstanding any such liquidation or consolidation or merger; provided,
however, that in the event of liquidation or sale of substantially all of the
assets of Company, Wells Fargo shall guarantee, to the extent of the greater of
the net asset value of Company as of the Effective Date of the Merger or as of
the date of such liquidation or sale, the indemnification obligations of Company
or any Company Subsidiary to the extent of indemnification obligations of
Company and the Company
<PAGE>
Subsidiaries described above. Each Indemnified Party shall have the right to
assert claims for indemnification directly against Wells Fargo without first
having to assert such claim against Company or any Company Subsidiary.
Notwithstanding anything to the contrary contained in this paragraph 5(m)(i),
nothing contained herein shall require Wells Fargo to indemnify any person who
was a director or officer of Company or any Company Subsidiary to a greater
extent than Company or any Company Subsidiary is, as of the date of this
Agreement, required to indemnify any such person;
(ii) any Indemnified Party wishing to claim indemnification
under paragraph 5(m)(i), upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify Wells Fargo thereof, but the
failure to so notify shall not relieve Wells Fargo of any liability it may have
to such Indemnified Party. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective Time
of the Merger), (A) Wells Fargo shall have the right to assume the defense
thereof and Wells Fargo shall not be liable to any Indemnified Party for any
legal expenses of other counsel or any other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof, except that if
Wells Fargo elects not to assume such defense or counsel for the Indemnified
Party advises that there are issues which raise conflicts of interest between
Wells Fargo and the Indemnified Party, the Indemnified Party may retain counsel
satisfactory to them, and Wells Fargo shall pay the reasonable fees and expenses
of such counsel for the Indemnified Party promptly as statements therefor are
received; provided, however, that Wells Fargo shall be obligated pursuant to
this subparagraph (ii) to pay for only one firm of counsel for all Indemnified
Parties in any jurisdiction unless the use of one counsel for such Indemnified
Parties would present such counsel with a conflict of interest and (B) such
Indemnified Party shall cooperate in the defense of any such matter;
(iii) if Wells Fargo or any of its successors or assigns (A)
shall consolidate with or merge into any other corporation or entity and shall
not be the continuing or surviving corporation or entity of such consolidation
or merger or (B) shall transfer all or substantially all of its properties and
assets to any individual, corporation or other entity, then and in each such
case, proper provision shall be made so that the successors and assigns of Wells
Fargo shall assume the obligations set forth in this paragraph 5(m); and
(iv) the provisions of this paragraph 5(m) are intended to be
for the benefit of, and shall be enforceable by, each Indemnified Party and his
or her heirs and representatives.
6. Conditions Precedent to Obligation of Company. The obligation of
Company to effect the Merger shall be subject to the satisfaction at or before
the Time of Filing of the following further conditions, which may be waived in
writing by Company:
(a) Representations and Warranties. Except as they may be affected by
transactions contemplated hereby and except for activities or transactions after
the date of this Agreement made in the ordinary course of business and not
expressly prohibited by this Agreement, the representations and warranties
contained in paragraph 3 hereof shall be true and correct in all respects as of
the Time of Filing as if made as of the Time of Filing (except to the extent
such representations and warranties are by their express provisions made as of
an earlier date, in which case as of such date), except where the failure to be
so true and correct would not have, individually or in the aggregate, a material
adverse effect on the business, financial condition or results of operations of
Wells Fargo and its subsidiaries taken as a whole.
(b) Performance of Wells Fargo Obligations. Wells Fargo shall have, or
shall have caused to be, performed and observed in all material respects all
covenants, agreements and conditions hereof to be performed or observed by it
and Merger Co. at or before the Time of Filing.
(c) Wells Fargo Compliance Certificate. Company shall have received a
favorable certificate, dated as of the Effective Date of the Merger, signed by
the Chairman, the President or any Executive Vice President or Senior Vice
President and by the Secretary or Assistant Secretary of Wells Fargo, as to the
matters set forth in subparagraphs (a) and (b) of this paragraph 6.
(d) Stockholder Approvals. This Agreement and the Merger Agreement
shall have been approved by the affirmative vote of the holders of the
percentage of the outstanding shares of Company required for approval of a
<PAGE>
plan of merger in accordance with the provisions of Company's Certificate of
Incorporation and the Delaware General Corporation Law.
(e) Governmental Approvals. Wells Fargo shall have received approval by
the Federal Reserve Board and by such state banking, insurance and finance
company authorities as may be required by law of the transactions contemplated
by this Agreement and the Merger Agreement, and all waiting and appeal periods
prescribed by applicable law or regulation shall have expired.
(f) No Restraining Order, Etc. No court or governmental authority of
competent jurisdiction shall have issued an order which is then in effect
restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement.
(g) Shares Authorized for Listing. The shares of Wells Fargo Common
Stock to be delivered to the stockholders of Company pursuant to this Agreement
and the Merger Agreement shall have been authorized for listing on the New York
Stock Exchange and the Chicago Stock Exchange.
(h) Tax Opinion. Company shall have received an opinion, dated the
Closing Date, of counsel to Company, substantially to the effect that, for
federal income tax purposes: (i) the Merger will constitute a reorganization
within the meaning of Sections 368 of the Code; (ii) no gain or loss will be
recognized by the holders of Company Common Stock upon receipt of Wells Fargo
Common Stock except for cash received in lieu of fractional shares; (iii) the
basis of the Wells Fargo Common Stock received by the stockholders of Company
will be the same as the basis of Company Common Stock exchanged therefor; and
(iv) the holding period of the shares of Wells Fargo Common Stock received by
the stockholders of Company will include the holding period of the Company
Common Stock, provided such shares of Company Common Stock were held as a
capital asset as of the Effective Time of the Merger. In rendering such opinion,
counsel to Company may require and rely upon representations contained in
certificates of officers of Wells Fargo, Company or others. Wells Fargo shall
provide such certificates, in form and substance reasonably acceptable to Wells
Fargo, as counsel may reasonably require.
(i) Registration Statement Effective; No Stop Order, Etc.; Blue Sky
Authorizations Received. The Registration Statement (as amended or supplemented)
shall have become effective under the Securities Act and shall not be subject to
any stop order, and no action, suit, proceeding or investigation by the SEC to
suspend the effectiveness of the Registration Statement shall have been
initiated and be continuing, or have been threatened and be unresolved. Wells
Fargo shall have received all state securities law or blue sky authorizations
necessary to carry out the transactions contemplated by this Agreement.
(j) Fairness Opinion. Prior to the mailing of the Proxy Statement
referred to in paragraph 4(c), the Board of Directors of Company shall have
received an opinion of CIBC World Markets Corp. addressed to the Board of
Directors of Company, and for its exclusive benefit, for inclusion in said Proxy
Statement and dated effective as of the date of mailing of such Proxy Statement,
based on such matters as CIBC World Markets Corp. deems appropriate or
necessary, to the effect that the consideration to be received by stockholders
of Company pursuant to the Merger is fair from a financial point of view.
Company shall promptly provide a copy of such opinion to Wells Fargo upon
receipt.
(k) No Material Adverse Change. Since September 30, 1999, no change
shall have occurred and no circumstances shall exist which has had or could
reasonably be expected to have a material adverse effect on the financial
condition, results of operations, business or prospects of Wells Fargo and the
Wells Fargo Subsidiaries taken as a whole (other than changes in banking laws or
regulations, or interpretations thereof, that affect the banking industry
generally or changes in generally accepted accounting principles or regulatory
accounting requirements applicable to banks or their holding companies generally
or changes in the general level of interest rates or other economic changes
affecting banks generally).
7. Conditions Precedent to Obligation of Wells Fargo. The obligation of
Wells Fargo to effect the Merger shall be subject to the satisfaction at or
before the Time of Filing of the following conditions, which may be waived in
writing by Wells Fargo:
<PAGE>
(a) Representations and Warranties. Except as they may be affected by
transactions contemplated hereby for activities or transactions after the date
of this Agreement made in the ordinary course of business and not expressly
prohibited by this Agreement, the representations and warranties contained in
paragraph 2 hereof shall be true and correct in all respects as of the Time of
Filing as if made as of the Time of Filing (except to the extent such
representations and warranties are by their express provisions made as of an
earlier date, in which case as of such date), except where the failure to be so
true and correct would not have, individually or in the aggregate, a material
adverse effect on the business, financial condition or results of operations of
Company and the Company Subsidiaries taken as a whole.
(b) Performance of Company Obligations. Company shall have, or shall
have caused to be, performed and observed in all material respects all
covenants, agreements and conditions hereof to be performed or observed by it at
or before the Time of Filing.
(c) Stockholder Approvals. This Agreement and the Merger Agreement
shall have been approved by the affirmative vote of the holders of the
percentage of the outstanding shares of Company required for approval of a plan
of merger in accordance with the provisions of Company's Certificate of
Incorporation and the Delaware General Corporation Law.
(d) Company's Compliance Certificate. Wells Fargo shall have received a
favorable certificate dated as of the Effective Date of the Merger signed by the
Chairman or President and by the Secretary or Assistant Secretary of Company, as
to the matters set forth in subparagraphs (a) through (c) of this paragraph 7.
(e) Governmental Approvals. Wells Fargo shall have received approval by
all governmental agencies as may be required by law of the transactions
contemplated by this Agreement and the Merger Agreement and all waiting and
appeal periods prescribed by applicable law or regulation shall have expired. No
approvals, licenses or consents granted by any regulatory authority shall
contain any condition or requirement relating to Company or any Company
Subsidiary that, in the good faith judgment of Wells Fargo, is unreasonably
burdensome to Wells Fargo.
(f) Consents, Authorizations, Etc. Obtained. Company and each Company
Subsidiary (other than any Company Subsidiary which is not actively engaged in
an aviation, banking, insurance, mortgage, finance company, leasing or
international banking business) shall have obtained any and all material
consents or waivers from other parties to loan agreements, leases or other
contracts material to Company's or such Company Subsidiary's business required
for the consummation of the Merger, and Company and each such Company Subsidiary
shall have obtained any and all material permits, authorizations, consents,
waivers and approvals required for the lawful consummation by it of the Merger.
(g) No Restraining Order, etc. No court or governmental authority of
competent jurisdiction shall have issued an order which is then in effect
restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement.
(h) [Intentionally left blank].
(i) Number of Outstanding Shares. At any time since the date hereof the
total number of shares of Company Common Stock outstanding and subject to
issuance upon exercise (assuming for this purpose that phantom shares and other
share-equivalents constitute Company Common Stock) of all warrants, options,
conversion rights, phantom shares or other share-equivalents shall not have
exceeded 30,224,180.
(j) Registration Statement Effective; No Stop Order, etc.; Blue Sky
Authorizations Received. The Registration Statement (as amended or supplemented)
shall have become effective under the Securities Act and shall not be subject to
any stop order, and no action, suit, proceeding or investigation by the SEC to
suspend the effectiveness of the Registration Statement shall be pending or
threatened.
(k) Comfort Certificate. Wells Fargo shall have received from the Chief
Executive Officer and Chief Financial Officer of Company a letter, dated as of
the effective date of the Registration Statement and updated through the Closing
Date, in form and substance reasonably satisfactory to Wells Fargo, to the
effect that:
<PAGE>
(i) the interim quarterly consolidated financial statements of
Company included or incorporated by reference in the Registration Statement are
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with the audited consolidated financial statements of Company
(except as may be indicated in the notes thereto);
(ii) the amounts reported in the interim quarterly
consolidated financial statements of Company agree in all material respects with
the general ledger of Company;
(iii) the annual and quarterly consolidated financial
statements of Company and the Company Subsidiaries included in, or incorporated
by reference in, the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the published rules and regulations thereunder;
(iv) from the date of the most recent unaudited consolidated
financial statements of Company and the Company Subsidiaries as may be included
in the Registration Statement to a date 5 days prior to the effective date of
the Registration Statement and to a date 5 days prior to the Closing, there are
no increases in long-term debt, changes in the capital stock or decreases in
stockholders' equity of Company and the Company Subsidiaries, except in each
case for changes, increases or decreases which the Registration Statement
discloses have occurred or may occur or which are described in such letters. For
the same period, there have been no decreases in consolidated net interest
income, consolidated net interest income after provision for credit losses,
consolidated income before income taxes, consolidated net income and net income
per share amounts of Company and the Company Subsidiaries, or in income before
equity in undistributed income of subsidiaries, in each case as compared with
the comparable period of the preceding year, except in each case for changes,
increases or decreases which the Registration Statement discloses have occurred
or may occur or which are described in such letters; and
(v) they have compared certain amounts, percentages, numbers
of shares and financial information which are derived from the general
accounting records of Company and the Company Subsidiaries and which appear in
the Registration Statement under the certain captions to be specified by Wells
Fargo, with such general accounting records of Company and the Company
Subsidiaries, and have found them to be in agreement in all material respects,
except as disclosed in such letters.
(l) No Casualty Losses, Etc. Company and the Company Subsidiaries
considered as a whole shall not have sustained since December 31, 1998 any
material loss or interference with their business from any civil disturbance or
any fire, explosion, flood or other calamity, whether or not covered by
insurance, except for such loss or interference that would not have,
individually or in the aggregate, a material adverse effect on the business,
financial condition or results of operations of Company and the Company
Subsidiaries taken as a whole.
(m) No Environmental Liability. Except with respect to matters listed
on Schedule 2(v), there shall be no reasonable basis for any proceeding, claim
or action of any nature seeking to impose, or that could result in the
imposition on Company or any Company Subsidiary of, any liability relating to
the release of hazardous substances as defined under any local, state or federal
environmental statute, regulation or ordinance including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
as amended, which has had or could reasonably be expected to have a material
adverse effect upon Company and its subsidiaries taken as a whole.
(n) No Material Adverse Change. Since September 30, 1999, no change
shall have occurred and no circumstances shall exist which has had or could
reasonably be expected to have a material adverse effect on the financial
condition, results of operations, business or prospects of Company and the
Company Subsidiaries taken as a whole (other than changes in banking laws or
regulations, or interpretations thereof, that affect the banking industry
generally or changes in generally accepted accounting principles or regulatory
accounting requirements applicable to banks or their holding companies generally
or changes in the general level of interest rates or other economic changes
affecting banks generally).
(o) Year 2000. Company shall be in full compliance with current FFIEC
Requirements. There shall be no feature of Company data processing, operating or
platform systems that would prevent those systems from
<PAGE>
continuing to run independently after December 31, 1999 until such time as a
subsequent conversion to Wells Fargo systems can be completed. Company's
computer hardware and software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission, or other utilization of data
or in the operation of mechanical or electrical systems of any kind will
function at least as effectively in all material respects after December 31,
1999 as in the case of dates or time periods occurring prior to January 1, 2000;
except for such failure to be in compliance, feature, or failure to so function
that would not have, individually or in the aggregate, a material adverse effect
on the business, financial condition or results of operations of Company and the
Company Subsidiaries taken as a whole.
8. Employee Benefit Plans: Company Employees. Each person who is an
employee of Company or any Company Subsidiary (except any person who is an
employee of the Company or any Company Subsidiary and who is offered and accepts
employment with Norwest Financial, Inc. prior to the Effective Date of the
Merger) as of the Effective Date of the Merger ("Company Employees") shall be
eligible for participation in the employee welfare and retirement plans of Wells
Fargo, as in effect from time to time, as follows:
(a) Employee Welfare Benefit Plans. Each Company Employee shall be
eligible for participation in the employee welfare benefit plans of Wells Fargo
listed below subject to any eligibility requirements applicable to such plans
(and not subject to pre-existing condition exclusions, except with respect to
the Wells Fargo Long Term Care Plan and Wells Fargo Long Term Disability Plan)
and shall enter each plan not later than the later of: (i) July 1, 2000, and
(ii) the first day of the calendar month which begins after the month in which
Effective Date of the Merger occurs (the "Benefits Conversion Date"):
Medical Plan
Dental Plan
Vision Plan
Short Term Disability Plan
Long Term Disability Plan
Long Term Care Plan
Flexible Benefits Plan
Basic Group Life Insurance Plan
Group Universal Life Insurance Plan
Dependent Group Life Insurance Plan
Business Travel Accident Insurance Plan
Accidental Death and Dismemberment Plan
Salary Continuation Pay Plan
Paid Time Off Program
It is intended that the transition from Company's Plans to the Wells
Fargo Plans will be facilitated without gaps in coverage to the participants
without duplication of costs to Wells Fargo. Company Employees shall receive
credit for years of service to Company, the Company Subsidiaries and any
predecessors of Company or the Company Subsidiaries (to the extent credited
under the vacation and short-term disability programs of Company) for the
purpose of determining benefits under the Wells Fargo Paid Time Off Program,
Salary Continuation Pay Plan and Short Term Disability Plan. Company Employees
shall be eligible for participation in the Wells Fargo Salary Continuation Pay
Plan subject to any eligibility requirements applicable to such plans
immediately following the Effective Time of the Merger; provided, however, that
no Company Employee who is a participant in any Company severance or salary
continuation plan or who has an employment agreement with Company or any Company
Subsidiary at the Effective Time of the Merger shall be eligible to participate
in the Wells Fargo Salary Continuation Pay Plan until such Company Employee is
no longer covered by such Company severance or salary continuation plan or
employment agreement.
Although participation in the Wells Fargo Long Term Disability Plan by
Company Employees is subject to pre-existing condition exclusions, Wells Fargo
will offer a long-term disability benefit for Company Employees who have
pre-existing conditions on terms substantially similar to those available under
the Wells Fargo Long Term Disability Plan.
<PAGE>
(b) Employee Retirement Benefit Plans. Each Company Employee shall be
eligible to participate in the Wells Fargo 401(k) Plan (the "401(k) Plan"),
subject to any eligibility requirements applicable to the 401(k) Plan (with full
credit for years of past service to Company and the Company Subsidiaries, to the
extent credited under the Company's defined contribution Plan, for the purpose
of satisfying any eligibility and vesting periods applicable to the 401(k)
Plan), and shall enter the 401(k) Plan as of the Benefits Conversion Date.
Each Company Employee shall be eligible to participate in the Wells
Fargo Cash Balance Plan ("Cash Balance Plan") under, subject to any eligibility
requirements applicable to the Cash Balance Plan (with full credit for years of
past service to Company and the Company Subsidiaries, to the extent credited
under the Company's defined contribution plan, for the purpose of satisfying any
eligibility and vesting periods applicable to the Cash Balance Plan and with
respect to calculating compensation credits under the Cash Balance Plan), and
shall enter the Cash Balance Plan as of the Benefits Conversion Date.
Each Company Employee shall be eligible for access to Wells Fargo's
retiree medical benefit, subject to any eligibility requirements applicable to
such benefit. Wells Fargo shall recognize years of past service with Company and
the Company Subsidiaries for the purpose of eligibility to access Wells Fargo's
retiree medical benefit.
8.1 Employee Benefit Plans: NFI Company Employees. Each person who is
an employee of the Company or any Company Subsidiary as of the Effective Date of
the Merger and who is offered and accepts employment with Norwest Financial,
Inc. prior to the Effective Date of the Merger ("NFI Company Employee") will be
eligible for participation in the payroll practices, employee welfare benefit
plans and employee retirement benefit plans of Norwest Financial, as in effect
from time to time, as follows:
(a) NFI Payroll Practices and Employee Welfare Benefit Plans. Each NFI
Company Employee shall be given credit for service with the Company and the
Company Subsidiaries for purposes of meeting the service eligibility
requirements applicable to Norwest Financial's payroll practices and employee
welfare benefit plans and, subject to any eligibility requirements (but not
subject to pre-existing condition exclusions, except to the extent such
exclusions were in effect under the Company Benefit Plans), shall be entitled to
enter the following plans or programs on the Effective Date of the Merger or as
soon thereafter as administratively feasible:
Medical and Dental Plan (including Vision)
Excusable Absence Plan
Basic, Additional, Spouse and Dependent Life Insurance Plan
Accidental Death and Dismemberment Plan
Business Travel Accident Plan
Holiday
Vacation
Long Term Disability Plan
(b) NFI Employee Retirement Benefit Plans. Each NFI Company Employee
shall be eligible to participate in the Norwest Financial Pension Plan (the
"Pension Plan"), subject to any eligibility requirements applicable to the
Pension Plan. Service with the Company and the Company Subsidiaries, to the
extent credited under the Company's defined contribution Plan, will be
recognized for participation and vesting purposes under the Pension Plan.
Benefit accrual will begin under the Pension Plan as of the first day of Norwest
Financial employment.
Each NFI Company Employee shall be eligible to participate in the
Norwest Financial Thrift and Profit Sharing Plan (the "Profit Sharing Plan"),
subject to any eligibility requirements applicable to the Profit Sharing Plan.
Service with the Company and the Company Subsidiaries, to the extent credited
under the Company's defined contribution Plan, will be recognized for
participation and vesting purposes under the Profit Sharing Plan. Each such
employee may enroll in the Profit Sharing Plan, if eligible, during the first
enrollment period following the Effective Date of the Merger.
9. Termination of Agreement.
(a) This Agreement may be terminated at any time prior to the Time of
Filing:
<PAGE>
(i) by mutual written consent of the parties hereto;
(ii) by either of the parties hereto upon written notice to
the other party if the Merger shall not have been consummated by September 30,
2000 unless such failure of consummation shall be due to the failure of the
party seeking to terminate to perform or observe in all material respects the
covenants and agreements hereof to be performed or observed by such party; or
(iii) by Company or Wells Fargo upon written notice to the
other party if any court or governmental authority of competent jurisdiction
shall have issued a final and nonappealable order permanently restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement; or
(iv) by either Wells Fargo or Company upon written notice to
the other party if the Board of Directors of Company shall in good faith
determine that a Takeover Proposal constitutes a Superior Proposal; provided,
however, that Company shall not be permitted to terminate this Agreement
pursuant to this paragraph (a)(iv) unless it has not breached any covenant
contained in paragraph 4(h). As used in this Agreement: (i) "Takeover Proposal"
means a bona fide proposal or offer by a person to make a tender or exchange
offer, or to engage in a merger, consolidation or other business combination
involving Company or to acquire in any manner a substantial equity interest in,
or all or substantially all of the assets of, Company, and (ii) "Superior
Proposal" means a Takeover Proposal with terms which the Board of Directors of
Company shall determine in good faith, after taking into account the advice of
its financial advisor, to be more favorable to Company and its stockholders than
the transactions contemplated hereby; or
(v) by Wells Fargo upon written notice to Company if (A) the
Board of Directors of Company fails to recommend, withdraws, or modifies in a
manner materially adverse to Wells Fargo, its approval or recommendation of this
Agreement, or the transactions contemplated hereby, (B) after an agreement to
engage in or the occurrence of an Acquisition Event (as defined below) or after
a third party shall have made a proposal to Company or Company's stockholders to
engage in an Acquisition Event, the transactions contemplated hereby are not
approved at the meeting of Company stockholders contemplated by paragraph 4(c),
or (C) the meeting of Company stockholders contemplated by paragraph 4(c) is not
held prior to May 15, 2000, and Company has failed to comply with its
obligations under paragraph 4(c). "Acquisition Event" means any of the
following: (i) a merger, consolidation or similar transaction involving Company,
its bank subsidiary (the "Bank") or any successor to Company or the Bank, (ii) a
purchase, lease or other acquisition in one or a series of related transactions
of assets of Company or any of the Company Subsidiaries representing 25% or more
of the consolidated assets of Company and the Company Subsidiaries or (iii) a
purchase or other acquisition (including by way of merger, consolidation, share
exchange or any similar transaction) in one or a series of related transactions
of beneficial ownership of securities representing 25% or more of the voting
power of Company or the Bank in each case with or by a person or entity other
than Wells Fargo or an affiliate of Wells Fargo.
(b) In the event of termination of this Agreement pursuant to paragraph
9(a), this Agreement shall forthwith become null and void, there shall be no
liability under this Agreement on the part of Wells Fargo or Company or any of
their respective officers or directors, and all rights and obligations of each
party hereto shall cease; provided, however, that paragraphs 4(g), 5(h) and 10
shall survive such termination, and (ii) nothing herein shall release, or be
construed as so releasing, either party hereto from any liability or damage to
the other party hereto arising out of the breaching party's willful and material
breach of the warranties and representations made by it, or willful and material
failure in performance of any of its covenants, agreements, duties or
obligations arising hereunder.
10. Expenses. All expenses in connection with this Agreement and the
transactions contemplated hereby, including without limitation legal and
accounting fees, incurred by Company and Company Subsidiaries shall be borne by
Company, and all such expenses incurred by Wells Fargo shall be borne by Wells
Fargo; provided, however, that if Wells Fargo exercises its right to revise the
structure of the Merger pursuant to paragraph 1(e) hereof, Wells Fargo agrees to
reimburse Company for its actual expenses in connection with such restructuring,
and provided, further, that if this Agreement is terminated by Wells Fargo,
Wells Fargo agrees to reimburse Company for its actual expenses in connection
with obtaining the environmental assessments required by paragraph 4(n) hereof.
<PAGE>
11. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, but shall not be assignable by either party hereto without the prior
written consent of the other party hereto.
12. Third Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto except that the Indemnified
Parties shall have the right to enforce their rights under Section 5(m).
13. Notices. Any notice or other communication provided for herein or
given hereunder to a party hereto shall be in writing and shall be (i) delivered
in person, or (ii) shall be mailed by first class registered or certified mail,
postage prepaid, or (iii) shall be sent by facsimile, or (iv) shall be sent by
reputable overnight courier service addressed as follows:
If to Wells Fargo:
Wells Fargo & Company
MAC N9305-173
Sixth and Marquette
Minneapolis, Minnesota 55479
Attention: Corporate Secretary
If to Company:
National Bancorp of Alaska, Inc.
301 East Northern Lights Boulevard
Anchorage, AK 99503
Attention: Edward B. Rasmuson
with a copy to:
Duane, Morris & Heckscher LLP
1667 K Street N. W., Suite 700
Washington, DC 20006-1608
Attention: Brian D. Alprin, Esq.
or to such other address with respect to a party as such party shall notify the
other in writing as above provided.
14. Complete Agreement. This Agreement, including the Exhibits and
Schedules hereto, the Merger Agreement and any other agreements or documents
executed and delivered with this Agreement contain the complete agreement
between the parties hereto with respect to the Merger and other transactions
contemplated hereby and supersede all prior agreements and understandings
between the parties hereto with respect thereto.
15. Captions. The captions contained in this Agreement and the Exhibits
and Schedules hereto are for convenience of reference only and do not form a
part of this Agreement or the Exhibits or Schedules.
16. Waiver and Other Action. Either party hereto may, by a signed
writing, give any consent, take any action pursuant to paragraph 9 hereof or
otherwise, or waive any inaccuracies in the representations and warranties by
the other party and compliance by the other party with any of the covenants and
conditions herein.
17. Amendment. At any time before the Time of Filing, the parties
hereto, by action taken by their respective Boards of Directors or pursuant to
authority delegated by their respective Boards of Directors, may amend this
Agreement; provided, however, that no amendment after approval by the
stockholders of Company shall be made which changes in a manner adverse to such
stockholders the consideration to be provided to said stockholders pursuant to
this Agreement and the Merger Agreement.
<PAGE>
18. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware without regard to the conflict
of laws provisions thereof.
19. Non-Survival of Representations and Warranties. No representation
or warranty contained in the Agreement or the Merger Agreement shall survive the
Merger or, except as set forth in paragraph 9(b), the termination of this
Agreement.
20. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but both which shall constitute but one
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WELLS FARGO & COMPANY NATIONAL BANCORP OF ALASKA, INC.
By: /s/ John E. Ganoe By: /s/ Edward B. Rasmuson
------------------------- -------------------------
Its: Executive Vice President Its: Chairman of the Board of Directors
EXHIBIT 2.2
VOTING AGREEMENT BETWEEN ELMER E. RASMUSON AND WELLS FARGO & COMPANY
January 12, 2000
Wells Fargo & Company
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479
Ladies and Gentlemen:
We understand that Wells Fargo & Company ("Wells Fargo") and National
Bancorp of Alaska, Inc. (the "Company") intend to enter into an Agreement and
Plan of Reorganization (the "Reorganization Agreement") providing for a business
combination between the Company and a wholly-owned subsidiary of Wells Fargo
(the "Business Combination"), in which all of the outstanding shares of capital
stock of the Company will be exchanged for shares of common stock of Wells
Fargo.
The undersigned is a stockholder of the Company and is entering into
this letter agreement to induce Wells Fargo to enter into the Reorganization
Agreement and consummate the proposed transaction.
The undersigned confirms its agreement with you as follows:
1. The undersigned represents, warrants and agrees that Schedule I
attached hereto sets forth the shares of the Company's capital stock of which
the undersigned is the record or beneficial owner and that the undersigned is on
the date hereof the lawful owner of the number of shares set forth therein, free
and clear of all voting agreements and commitments of any kind and free and
clear of all liens and encumbrances except as set forth in Schedule I. Except as
set forth in Schedule I, the undersigned does not own or hold any rights to
acquire any additional shares of the Company's capital stock (by exercise of
stock options, warrants or otherwise) or any interest therein or any voting
rights with respect to any additional shares.
2. The undersigned agrees that until the consummation of the Business
Combination or the termination of the Reorganization Agreement in accordance
with its terms, the undersigned will not contract to sell, or otherwise transfer
or dispose of any shares of the Company's capital stock or any interest therein
or securities convertible thereinto or any voting rights with respect thereto,
other than (i) pursuant to the Business Combination, (ii) with the prior written
consent of Wells Fargo, or (iii) by operation of law.
3. The undersigned agrees that all shares of the Company's capital
stock beneficially owned by the undersigned at the record date for any meeting
of stockholders of the Company called to consider and vote on the Business
Combination will be voted by the undersigned in favor of the Business
Combination.
4. The undersigned agrees to cooperate fully with Wells Fargo in
connection with the Business Combination. The undersigned agrees that the
undersigned will not, directly or indirectly, solicit any inquiries or proposals
from, or enter into, or continue any discussions, negotiations or agreements
relating to the business combination, merger or consolidation of the Company
with, or to the acquisition of its voting securities by, or to the direct or
indirect acquisition or disposition of a significant amount of assets otherwise
than in the ordinary course of business of the Company from or to, any person
other than Wells Fargo or vote in favor of any such proposal or transaction.
5. Nothing in this agreement shall limit or otherwise interfere with
the undersigned's actions as a director or officer of the Company. Without
limiting the generality of the foregoing, the undersigned may, in his capacity
as a director of the Company, vote in the manner determined by him in his sole
discretion on any matter submitted to the vote of directors.
<PAGE>
This letter agreement may be terminated at the option of either party
at any time after termination of the Reorganization Agreement.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
/s/ Elmer E. Rasmuson
-----------------------
Elmer E. Rasmuson
Confirmed: , 2000
---------
WELLS FARGO & COMPANY
By:
-----------------------
Its:
-----------------------
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
- ------------------------------------------------------------------------------------------------------------------------------
NAME SHARES SHARES OWNED SHARES WITH SHARES WITH LIENS RIGHTS TO ACQUIRE
OWNED INDIRECTLY POWER TO VOTE SHARED POWER ADDITIONAL SHARES OR
DIRECTLY TO VOTE VOTING RIGHTS
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Elmer E. Rasmuson 12,511,472 3,243,092 15,628,112 None None None
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
EXHIBIT 2.3
VOTING AGREEMENT BETWEEN EDWARD B. RASMUSON AND WELLS FARGO & COMPANY
January 12, 2000
Wells Fargo & Company
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479
Ladies and Gentlemen:
We understand that Wells Fargo & Company ("Wells Fargo") and National
Bancorp of Alaska, Inc. (the "Company") intend to enter into an Agreement and
Plan of Reorganization (the "Reorganization Agreement") providing for a business
combination between the Company and a wholly-owned subsidiary of Wells Fargo
(the "Business Combination"), in which all of the outstanding shares of capital
stock of the Company will be exchanged for shares of common stock of Wells
Fargo.
The undersigned is a stockholder of the Company and is entering into
this letter agreement to induce Wells Fargo to enter into the Reorganization
Agreement and consummate the proposed transaction.
The undersigned confirms its agreement with you as follows:
1. The undersigned represents, warrants and agrees that Schedule I
attached hereto sets forth the shares of the Company's capital stock of which
the undersigned is the record or beneficial owner and that the undersigned is on
the date hereof the lawful owner of the number of shares set forth therein, free
and clear of all voting agreements and commitments of any kind and free and
clear of all liens and encumbrances except as set forth in Schedule I. Except as
set forth in Schedule I, the undersigned does not own or hold any rights to
acquire any additional shares of the Company's capital stock (by exercise of
stock options, warrants or otherwise) or any interest therein or any voting
rights with respect to any additional shares.
2. The undersigned agrees that until the consummation of the Business
Combination or the termination of the Reorganization Agreement in accordance
with its terms, the undersigned will not contract to sell, or otherwise transfer
or dispose of any shares of the Company's capital stock or any interest therein
or securities convertible thereinto or any voting rights with respect thereto,
other than (i) pursuant to the Business Combination, (ii) with the prior written
consent of Wells Fargo, or (iii) by operation of law.
3. The undersigned agrees that all shares of the Company's capital
stock beneficially owned by the undersigned at the record date for any meeting
of stockholders of the Company called to consider and vote on the Business
Combination will be voted by the undersigned in favor of the Business
Combination.
4. The undersigned agrees to cooperate fully with Wells Fargo in
connection with the Business Combination. The undersigned agrees that the
undersigned will not, directly or indirectly, solicit any inquiries or proposals
from, or enter into, or continue any discussions, negotiations or agreements
relating to the business combination, merger or consolidation of the Company
with, or to the acquisition of its voting securities by, or to the direct or
indirect acquisition or disposition of a significant amount of assets otherwise
than in the ordinary course of business of the Company from or to, any person
other than Wells Fargo or vote in favor of any such proposal or transaction.
5. Nothing in this agreement shall limit or otherwise interfere with
the undersigned's actions as a director or officer of the Company. Without
limiting the generality of the foregoing, the undersigned may, in his capacity
as a director of the Company, vote in the manner determined by him in his sole
discretion on any matter submitted to the vote of directors.
<PAGE>
This letter agreement may be terminated at the option of either party
at any time after termination of the Reorganization Agreement.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
/s/ Edward B. Rasmuson
-----------------------
Edward B. Rasmuson
Confirmed: , 2000
--------
WELLS FARGO & COMPANY
By:
-----------------------
Its:
-----------------------
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
- ---------------------------------------------------------------------------------------------------------------------------------
NAME SHARES SHARES OWNED SHARES WITH SHARES WITH LIENS RIGHTS TO ACQUIRE
OWNED INDIRECTLY POWER TO VOTE SHARED POWER ADDITIONAL SHARES OR
DIRECTLY TO VOTE VOTING RIGHTS
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Edward B. Rasmuson 1,364,150 1,088,572 1,364,150 None None None
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
