<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 30, 1994
NORWEST CORPORATION
-------------------
(Exact name of registrant as specified in its charter)
Delaware 1-2979 41-0449260
- ---------------------------- ------------ -------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-1026
---------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 612-667-1234
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibits:
3. Certificate of Designations of Powers, Preferences, and Rights relating to
the Registrant's Cumulative Tracking Preferred Stock.
2
<PAGE>
SIGNATURES
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.
NORWEST CORPORATION
(Registrant)
Dated: January 9, 1995 By: /s/ Laurel A. Holschuh
-----------------------------------
Laurel A. Holschuh
Senior Vice President and Secretary
3
<PAGE>
EXHIBIT 3
NORWEST CORPORATION
___________________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
___________________
CUMULATIVE TRACKING PREFERRED STOCK
(Without Par Value)
___________________
NORWEST CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation (the "Board") and by the Securities Committee of the Board (the
"Securities Committee"), pursuant to authority conferred upon the Board by the
provisions of the Restated Certificate of Incorporation of the Corporation,
which authorizes the issuance of up to 5,000,000 shares of preferred stock,
without par value (the "Preferred Stock"), and pursuant to authority conferred
upon the Securities Committee in accordance with Section 141(c) of the General
Corporation Law of the State of Delaware and by the resolutions of the Board set
forth herein, at a meeting of the Board duly held on July 26, 1994, and by the
resolutions of the Securities Committee set forth herein, at a meeting of the
Securities Committee duly held on December 21, 1994:
1. The Board on July 26, 1994, adopted the following resolutions
delegating certain powers to the Securities Committee and fixing the voting
rights of certain series of the Preferred Stock:
"RESOLVED that the Corporation is authorized to issue and sell, at any
time, or from time to time, securities in the form or forms of one or more of
the following (all of which are referred to herein as "Securities"): (i) one or
more series of preferred stock of the Corporation (the "Preferred Stock") and
other related securities, including without limitation depositary instruments
evidencing interests in Preferred Stock ("Depositary Shares"); (ii) unsecured
debentures, notes or other evidences of indebtedness which, when issued, may
rank on a parity with or be subordinated to all other unsecured and
unsubordinated indebtedness of the Corporation (collectively, the "Debt
Securities"); (iii) Securities directly or indirectly convertible into, or
exchangeable for, and warrants (the "Stock Warrants") for the purchase of,
Preferred Stock, Depositary Shares, common stock of the Corporation (the "Common
Stock") or other capital securities of the Corporation (the Securities described
in clauses (i), (iii) and (vi) hereof, together with any Securities related
thereto, are referred to collectively herein as "Equity Related Securities");
(iv) warrants for the purchase of Debt Securities ("Debt Warrants") (the Stock
Warrants and Debt Warrants being collectively referred to herein as "Securities
Warrants"); (v) shares of Common Stock issuable upon the conversion of or in
exchange for Preferred Stock or Debt Securities, or upon the exercise of Stock
Warrants; and (vi) other capital securities of the Corporation issuable in
exchange for or upon conversion of Preferred Stock or Debt Securities, all of
such Securities to be issuable in an aggregate dollar amount not to exceed
$2,000,000,000 (the "Issuance Limit"), which Issuance Limit shall be determined
(1) with respect to the issuance of Debt Securities, whether or not
<PAGE>
convertible into or exchangeable for other Securities, by reference to the
original dollar offering price thereof upon issuance (or, if denominated in any
other currency or currencies, by reference to the approximate equivalent value
thereof in U.S. dollars, as determined by an Authorized Officer hereinafter
referred to); (2) with respect to the issuance of Preferred Stock or Depositary
Shares, whether or not convertible into or exchangeable for other Securities, by
reference to the original offering price thereof upon issuance; and (3) with
respect to the issuance of Securities Warrants, by reference to the original
offering price thereof upon issuance plus the aggregate exercise price (if any)
of such Securities Warrants."
* * * *
"RESOLVED that the Securities Committee, exclusively, shall have and
may exercise, subject to the Issuance Limit and these resolutions, the full
powers of the Board, on behalf of the Corporation, to authorize the issuance of
Equity Related Securities, to establish all terms and conditions with respect
thereto, and to take any and all actions the Securities Committee deems
necessary or appropriate in connection therewith; provided, however, that any
shares of Preferred Stock thus authorized for issuance [(referred to below as
the "Shares")] shall have the voting rights set forth in Appendix A to these
resolutions."
* * * *
"APPENDIX A - VOTING RIGHTS
RESOLVED that no series of the Shares, except as hereinafter set forth
in this resolution or as otherwise from time to time required by law, shall have
voting rights. Whenever, at any time or times, dividends payable on any series
of the Shares shall be in arrears for such number of dividend periods which
shall in the aggregate contain not less than 540 days, the holders of the
outstanding Shares of such series shall have the exclusive right, voting
separately as a class with holders of shares of any one or more other series of
Preferred Stock ranking on a parity with the Shares either as to dividends, or
on the distribution of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are exercisable, to elect
two directors of the Corporation at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders. At
elections for such directors, each holder of the Shares of such series shall be
entitled to one vote for each share held (the holders of shares of any other
series of Preferred Stock ranking on such a parity being entitled to such number
of votes, if any, for each share of stock held as may be granted to them). Upon
the vesting of such right of such holders, the maximum authorized number of
members of the Board shall automatically be increased by two and the two
vacancies so created shall be filled by vote of the holders of such outstanding
Shares of such series (either alone or together with the holders of shares of
any one or more other series of Preferred Stock ranking on such a parity) as
hereinafter set forth. The right of such holders of such Shares of such series,
voting separately as a class, to elect (together with the holders of shares of
any one or more other series of Preferred Stock ranking on such a parity)
members of the Board as aforesaid shall continue until such time as all
dividends accumulated on such Shares shall have been paid in full, at which time
such right shall terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent default of the
character above mentioned.
Upon any termination of the right of the holders of the Shares of any
series as a class to vote for directors as herein provided, the term of office
of all directors then in office elected by such holders voting as a class shall
terminate immediately. If the office of
2
<PAGE>
any director elected by such holders voting as a class becomes vacant by reason
of death, resignation, retirement, disqualification, removal from office or
otherwise, the remaining director elected by such holders voting as a class may
choose a successor who shall hold office for the unexpired term in respect of
which such vacancy occurred. Whenever the term of office of the directors
elected by such holders voting as a class shall end and the special voting
powers vested in such holders as provided in this resolution shall have expired,
the number of directors shall be such number as may be provided for in the
By-Laws of the Corporation irrespective of any increase made pursuant to the
provisions of this resolution.
So long as any Shares remain outstanding, the consent of the holders
of at least two-thirds of the Shares of each series outstanding at the time
(voting separately as a class together with all other series of Preferred Stock
ranking on a parity with such series either as to dividends or the distribution
of assets upon liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable) given in person or by proxy,
either in writing or at any special or annual meeting called for the purpose,
shall be necessary to permit, effect or validate any one or more of the
following:
(a) the authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior
to the Shares with respect to payment of dividends or the distribution of
assets on liquidation, dissolution or winding up, or
(b) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Restated
Certificate of Incorporation or of the resolutions set forth in a
Certificate of Designation for any series of the Shares designating such
series of the Shares and the preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions thereof which would materially and adversely affect any right,
preference, privilege or voting power of the Shares or of the holders
thereof; provided, however, that any increase in the amount of authorized
Preferred Stock or the creation and issuance of other series of Preferred
Stock, or any increase in the amount of authorized Shares of any series, in
each case ranking on a parity with or junior to the Shares with respect to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Shares shall have been redeemed or sufficient
funds shall have been deposited in trust to effect such redemption."
2. The Securities Committee on December 21, 1994, adopted the
following resolution pursuant to the authority conferred upon the Securities
Committee by the resolutions of the Board set forth in paragraph 1 above adopted
pursuant to Section 141(c) of the General Corporation Law of the State of
Delaware:
"RESOLVED that the issuance of a series of Preferred Stock, without
par value, of the Corporation is hereby authorized and the designation,
preferences and relative, participating, optional, and other special rights, and
qualifications, limitations and restrictions thereof, in addition to those set
forth in the Restated Certificate of
3
<PAGE>
Incorporation of the Corporation, as amended, and those established by the
resolutions of the Board adopted on July 26, 1994, are hereby fixed as follows:
CUMULATIVE TRACKING PREFERRED STOCK
1. Designation and Number of Shares. (a) The designation of the
series of preferred stock, without par value, provided for herein shall be
"Cumulative Tracking Preferred Stock" (hereinafter referred to as the "Tracking
Preferred Stock") and the number of authorized shares constituting the Tracking
Preferred Stock is 980,000. The number of authorized shares of Tracking
Preferred Stock may be reduced (but not below the number of shares then
outstanding) by further resolution duly adopted by the Board or the Securities
Committee and by the filing of a certificate pursuant to the provisions of the
General Corporation Law of the State of Delaware stating that such reduction has
been so authorized, but the number of authorized shares of Tracking Preferred
Stock shall not be increased.
(b) All shares of Tracking Preferred Stock purchased or redeemed by
the Corporation shall be retired and cancelled and shall be restored to the
status of authorized but unissued shares of preferred stock, without designation
as to series, and may thereafter be issued, but not as shares of Tracking
Preferred Stock.
2. Dividends. (a)(i) Holders of shares of Tracking Preferred Stock
will be entitled to receive, when and as declared by the Board or a duly
authorized committee thereof, out of assets of the Corporation legally available
for payment, an annual cash dividend (subject to adjustment as set forth in
paragraph (a)(ii) of this Section 2) per share (the "Annual Dividend") equal to
the product of the Dividend Rate (as defined below) and $200, payable quarterly
in arrears on March 31, June 30, September 30, and December 31 of each year,
commencing March 31, 1995. The cash dividends described in this Section 2 are
hereinafter referred to as "Base Dividends", March 31, June 30, September 30 and
December 31 are referred to herein as "Dividend Payment Dates", and each period
beginning on the day following each Dividend Payment Date (or, with respect to
the Dividend Payment Date on March 31, 1995, beginning on the date of issuance
of the Tracking Preferred Stock) and ending on (and including) the following
Dividend Payment Date shall be referred to as a "Dividend Period". Base
Dividends on shares of Tracking Preferred Stock will accrue and be cumulative
from the date of initial issuance of such shares of Tracking Preferred Stock,
whether or not earned or declared. Base Dividends will be payable to holders of
record as they appear on the stock books of the Corporation on such record
dates, not more than 30 days nor less than 15 days preceding the payment dates
thereof, as shall be fixed by the Board or a duly authorized committee thereof.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time to holders of record on such date, not exceeding 30 days
preceding the payment date thereof, as may be fixed by the Board or a duly
authorized committee thereof. The amount of Base Dividends payable per share
for each Dividend Period shall be computed by dividing the Annual Dividend by
four. The amount of Base Dividends payable for the initial Dividend Period and
any period shorter than a full Dividend Period shall be calculated on the basis
of a 360-day year of twelve 30-day months. If any regular Dividend Payment Date
is not a Market Day (as defined below), the dividend due on such Dividend
Payment Date shall be paid on the first succeeding day that is a Market Day.
(ii) The initial Dividend Rate shall be 9.30%. The Dividend Rate
shall be reset on January 1, 2000, and on January 1 of each fifth year
thereafter (i.e., January 1, 2005, 2010, etc.) (each such reset date being
hereinafter referred to as a "Dividend Reset Date"). The Dividend Rate for the
five-year period commencing on a Dividend Reset
4
<PAGE>
Date shall be the greatest of (A) the sum of (1) the 5-Year Treasury Rate (as
hereinafter defined) with respect to the Dividend Determination Date (as
hereinafter defined) for such Dividend Reset Date, plus (2) 2.5%; (B) the sum of
(1) the 10-Year Treasury Rate (as hereinafter defined) with respect to the
Dividend Determination Date for such Dividend Reset Date, plus (2) 2.5%; (C) the
sum of (1) the 30-Year Treasury Rate (as hereinafter defined) with respect to
the Dividend Determination Date for such Dividend Reset Date, plus (2) 2.5%; and
(D) the sum of (1) the three-month LIBOR rate (as hereinafter defined) with
respect to the Dividend Determination Date for such Dividend Reset Date, plus
(2) 2.5%. For purposes of this Section 2(a)(ii):
"Dividend Determination Date" shall mean the date as of which a new
Dividend Rate is to be calculated, to be effective as of the following Dividend
Reset Date. The "Dividend Determination Date" pertaining to any Dividend Reset
Date shall mean the third Wednesday of the December immediately preceding such
Dividend Reset Date, provided that if such day is not a Market Day, the Dividend
Determination Date shall be the next succeeding day that is a Market Day.
"5-Year Treasury Rate", "10-Year Treasury Rate" or "30-Year Treasury
Rate" shall mean, with respect to any Dividend Determination Date, the yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of 3:30 p.m., New York City time, on such
Dividend Determination Date, of three leading primary United States government
securities dealers selected by the Corporation ("primary dealers") for the issue
of direct obligations of the United States ("Treasury bills") with a remaining
maturity closest to five, ten or 30 years, as the case may be.
In the event that a Treasury bill rate described above cannot be
obtained from three primary dealers, such rate shall be determined on the basis
of rates obtained from two primary dealers, and if such rate cannot be obtained
from two primary dealers then on the basis of the rate obtained from one primary
dealer. In the event that a Treasury bill rate cannot be obtained from any
primary dealers, such rate shall be determined with reference to the rate for
the most recent auction of Treasury bills of similar maturity, as such rate is
published in the most recent publication preceding the Dividend Determination
Date of Federal Reserve Board "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Federal Reserve Board under the
heading "United States Government Securities--Treasury Bills--auction average
(investment)".
"Three-month LIBOR Rate" shall mean the arithmetic mean of the London
interbank offered rates for three-month U.S. dollar deposits quoted as of 3:30
p.m., New York City time, on such Dividend Determination Date, by three leading
banks selected by the Corporation engaged in transactions in Eurodollar deposits
in the international Eurocurrency market (i) with an established place of
business in London and (ii) whose quotations appear on the Reuters Screen LIBO
Page. "Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank offered
quotations of major banks).
In the event that the Three-month LIBOR Rate cannot be obtained from
three leading banks, such rate shall be determined on the basis of rates
obtained from two leading banks, and if such rate cannot be obtained from two
leading banks then on the basis of the rate obtained from one leading bank.
5
<PAGE>
In the event that no rate on any of the aforesaid three constant
maturities of Treasury bills or the Three-month LIBOR Rate is reported or can be
calculated as described in the preceding two sentences, the Dividend Rate on the
Dividend Reset Date pertaining to such Dividend Determination Date will be the
Dividend Rate for the preceding five-year period plus 1.0%.
(iii) The Corporation shall send notice of the new Dividend Rate to
each holder of Tracking Preferred Stock prior to the Dividend Reset Date as of
which such Dividend Rate applies, which notice shall also set forth the primary
dealers and reference banks used to determine the new Dividend Rate.
(iv) "Market Day" shall mean any day that is not a Saturday or Sunday
and that is not a day on which banking institutions generally are authorized or
obligated by law or executive order to close in the City of Minneapolis,
Minnesota or the City of New York, New York.
(b)(i) So long as any shares of the Tracking Preferred Stock are
outstanding, no full dividends shall be declared or paid or set apart for
payment on any stock of the Corporation ranking, as to dividends, on a parity
with or junior to Tracking Preferred Stock for any period unless full cumulative
Base Dividends for all Dividend Periods terminating on or prior to the date of
payment of such full cumulative Base Dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on shares of Tracking Preferred Stock. When
dividends are not paid in full, as aforesaid, upon the shares of Tracking
Preferred Stock and any other series of preferred stock ranking on a parity as
to dividends with Tracking Preferred Stock, all dividends declared upon shares
of Tracking Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with Tracking Preferred Stock shall be declared pro rata
so that the amount of Base Dividends declared per share on Tracking Preferred
Stock and the amount of dividends declared per share of such other series of
preferred stock shall in all cases bear to each other the same ratio that
accrued Base Dividends per share on the shares of Tracking Preferred Stock and
accrued dividends per share on such other series of preferred stock bear to each
other. Holders of shares of Tracking Preferred Stock shall not be entitled to
any dividend, whether payable in cash, property, or stock, in excess of full
cumulative Base Dividends, as herein provided, on Tracking Preferred Stock
(although holders of Tracking Preferred Stock may be entitled to certain special
tracking distributions, as provided in Section 3 hereof). No interest, or sum
of money in lieu of interest, shall be payable in respect of any Base Dividend
payment or payments on Tracking Preferred Stock which may be in arrears.
(ii) So long as any shares of Tracking Preferred Stock are
outstanding, no dividend (other than dividends or distributions paid in shares
of, or options, warrants, or rights to subscribe for or purchase shares of, the
common stock, par value $1 2/3 per share, of the Corporation (the "Common
Stock") or any other stock ranking junior to Tracking Preferred Stock as to
dividends and upon liquidation and other than as provided in paragraph (b)(i) of
this Section 2) shall be declared or paid or set aside for payment and no other
distribution shall be declared or made upon the Common Stock or upon any other
capital stock of the Corporation ranking junior to or on a parity with Tracking
Preferred Stock as to dividends or upon liquidation, nor shall the Common Stock
or any other capital stock of the Corporation ranking junior to or on a parity
with Tracking Preferred Stock as to dividends or upon liquidation be redeemed,
purchased, or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for stock
of the Corporation ranking junior to Tracking
6
<PAGE>
Preferred Stock as to dividends and upon liquidation) unless, in each case, the
full cumulative Base Dividends on all outstanding shares of Tracking Preferred
Stock for the then-current Dividend Period and all past Dividend Periods shall
have been paid or declared and set aside for payment.
(c) At the time of initial issuance of shares of Tracking Preferred
Stock, the holder or holders thereof will collectively be the assignees of the
Corporation's entire beneficial ownership interest in an equivalent number of
Class A preferred limited liability company interests (the "Class A Preferred
Securities") of Residential Home Mortgage, L.L.C. (the "Limited Liability
Company"). Section 2 of the Action dated December 29, 1994, establishing the
terms of the Class A Preferred Securities (the "Action") provides for certain
dividends to its members. If, with respect to any Dividend Payment Date for any
Dividend Period, the Limited Liability Company makes a dividend distribution to
a holder of Tracking Preferred Stock, as an assignee of the Corporation's
interest in the Limited Liability Company, pursuant to Section 2 of the Action,
the amount of the Base Dividend on each share of Tracking Preferred Stock that
would otherwise accrue and to which such holder of Tracking Preferred Stock
would otherwise be entitled from the Corporation in respect of such Dividend
Period pursuant to this Section 2 shall be reduced, dollar for dollar on a per
share basis (but not below zero), by the amount of such Limited Liability
Company dividends thus distributed on one share of Class A Preferred Securities
to such holder.
3. Special Tracking Distributions. (a) Holders of shares of Tracking
Preferred Stock will be entitled to receive from the Corporation, in addition to
the Base Dividends provided for in Section 2 hereof, certain additional cash
distributions (the "Tracking Distributions") that are based on the results of
operations of the Limited Liability Company, as set forth in this Section 3.
(b) Tracking Distributions shall be payable to the holders of Tracking
Preferred Stock, out of assets of the Corporation legally available for payment,
on December 31, 1999, and on December 31 of each fifth year thereafter (i.e.,
December 31, 2004, December 31, 2009, etc.) (each such payment date being
hereinafter referred to as a "Tracking Distribution Payment Date").
(c) The amount of each Tracking Distribution per share of Tracking
Preferred Stock shall be equal to the excess, if any, of a Class A Preferred
Security's pro rata share of the amount described in Section 5.1(b)(1) of the
Amended and Restated Limited Liability Company Agreement, dated December 29,
1994, of the Limited Liability Company over the amount with respect to such Unit
described in Section 5.1(b)(2) of such Agreement, as each section is set forth
in Section 11 of the Action. If the result of the foregoing calculation is zero
or a negative number, no Tracking Distribution shall be payable with respect to
the relevant Tracking Distribution Payment Date. Tracking Distributions will be
payable to holders of record of Tracking Preferred Stock as they appear on the
stock books of the Corporation on such record dates, not more than 30 days nor
less than 15 days preceding the relevant Tracking Distribution Payment Date, as
shall be fixed by the Board or a duly authorized committee thereof.
(d) Section 3 of the Action provides for certain special distributions
to the members of the Limited Liability Company every five years, with the first
such payment being due on December 31, 1999. If with respect to a Tracking
Distribution Payment Date, the Limited Liability Company distributes such a
special distribution pursuant to Section 3 of the Action to a holder of Tracking
Preferred Stock, as an assignee of the Corporation's interest in the Limited
Liability Company, the amount of the Tracking Distribution on each share of
Tracking Preferred Stock that would otherwise be
7
<PAGE>
payable to such holder by the Corporation on such Tracking Distribution Payment
Date pursuant to this Section 3 shall be reduced, dollar for dollar on a per
share basis (but not below zero), by the amount of such Limited Liability
Company distributions thus paid on one share of Class A Preferred Securities to
such holder.
4. Optional Redemption. (a) The shares of Tracking Preferred Stock
may be redeemed at the option of the Corporation, in whole or in part, out of
assets legally available for such purpose, at any time or from time to time,
upon not less than 30 nor more than 60 days' prior notice delivered by overnight
courier to the holders of the shares to be redeemed at their addresses as shown
on the stock books of the Corporation and, if such holders have provided telex
or telecopy instructions to the Corporation, by telex or telecopy, as the case
may be; provided, however, that, except as otherwise redeemable in accordance
with Section 10.3 of the Stock Purchase Agreement dated as of December 29, 1994
among the Corporation and the Purchasers named therein, regarding certain early
redemptions that might occur as a result of certain indemnification obligations
of the Corporation, shares of Tracking Preferred Stock shall not be redeemable
prior to December 31, 1999. The redemption price per share of Tracking
Preferred Stock shall be equal to the greater of (i) $200 per share, plus an
amount equal to all Base Dividends (whether or not declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption (the
"Redemption Date"), and (ii) the Fair Market Value of a Per Share Tracking
Interest in the Limited Liability Company. For purposes of this Section 4 and
for purposes of Section 5 hereof, the Fair Market Value of a Per Share Tracking
Interest shall equal the fair market value of one Unit of the Limited Liability
Company calculated as of a day ten days preceding the Redemption Date or the
date specified in Section 5, as the case may be (the "Calculation Date"), and
paid on such Redemption Date, as determined by an independent appraiser
appointed by the Corporation. Such independent appraiser shall be an investment
banking firm having at least $250,000,000 of consolidated assets and of
recognized national standing with respect to securities valuation which has not
had any material business relationship with the Corporation in the three
calendar years preceding the valuation. Determination by such appraiser of the
value of any securities held by the Limited Liability Company then listed on an
exchange or traded on the NASDAQ National Market System shall be based solely on
closing sale quotations as reported, on the Composite Tape or by NASDAQ, and any
securities otherwise traded in the over-the-counter market shall be valued based
solely on closing bid price quotations as reported by NASDAQ. Determination by
such appraiser of the fair market value of Government National Mortgage
Association pass through securities or other mortgage backed securities issued
or guaranteed by any federal agency shall be based on the arithmetic mean of the
secondary market bid price quotations, as of 3:30 p.m., New York City time, on
such Calculation Date, of three leading dealers in mortgage backed securities
selected by the Corporation. In the event that such quotations cannot be
obtained from three such dealers, such quotations shall be determined on the
basis of quotations obtained from two such dealers, and if such quotations
cannot be obtained from two such dealers then on the basis of the quotations
obtained from one such dealer. In the event that no quotation on any of the
aforesaid securities is reported or can be calculated as described in the
preceding two sentences, the Fair Market Value on the Calculation Date
pertaining to such Redemption Date will be determined as provided in the
succeeding sentence.
Determination by such appraiser of the value of any other assets held
by the Limited Liability Company shall be based on all relevant factors
including, without limitation, type of security, marketability, restrictions on
disposition, subsequent purchases of the same or similar securities by other
investors, pending mergers or acquisitions, and current financial position and
operating results. In determining the Fair Market Value of a Per Share Tracking
Interest, no value shall be placed on the goodwill or name of the Limited
Liability Company, or the office records, files, statistical data or any similar
8
<PAGE>
intangible assets of the Limited Liability Company not normally reflected in the
Limited Liability Company's accounting records, but there shall be taken into
consideration any related items of income earned but not received, expenses
incurred but not yet paid, liabilities fixed or contingent, prepaid expenses to
the extent not otherwise reflected in the books of account, unrealized
appreciation or depreciation of portfolio securities, and the value of options
or commitments to purchase securities pursuant to agreements entered into on or
prior to such valuation date. The Fair Market Value of a Per Share Tracking
Interest determined by such appraiser pursuant to this Section 4 or Section 5,
as the case may be, shall be conclusive and binding on the Corporation, and on
the holders of shares of Tracking Preferred Stock. The cost of any such
appraisal shall be borne by the Corporation. The Corporation shall pay or cause
to be paid the redemption payments on the Tracking Preferred Stock by wire
transfer of immediately available funds to the account of any holder of Tracking
Preferred Shares (as specified in a notice provided to the Corporation by such
holder).
(b) Section 4 of the Action provides that interests in the Class A
Preferred Securities may be redeemed at the option of the Limited Liability
Company at any time on or after December 31, 1999. If, with respect to any
Redemption Date, the Limited Liability Company pays redemption payments pursuant
to Section 4 of the Action to a holder of Tracking Preferred Stock, as an
assignee of the Corporation's interest in the Class A Preferred Securities, the
amount of redemption payments on each share of Tracking Preferred Stock that
would otherwise be payable to such holder by the Corporation on such Redemption
Date pursuant to this Section 4 shall be reduced, dollar for dollar on a per
share basis (but not below zero), by the amount of such Limited Liability
Company redemption payments thus paid on one share of Class A Preferred
Securities to such holder.
(c) If fewer than all of the outstanding shares of Tracking Preferred
Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and such shares shall be redeemed pro rata from all
holders of shares of Tracking Preferred Stock in proportion to the number of
such shares held by such holders (with adjustments to avoid redemption of
fractional shares).
(d) If the Corporation shall redeem shares of Tracking Preferred
Stock, notice of such redemption shall be in writing and delivered by overnight
courier to each holder of the shares to be redeemed, at such holder's address as
the same appears on the stock books of the Corporation and, if such holders have
provided telex or telecopy instructions to the Corporation, by telex or
telecopy, as the case may be. Such notice shall be so given not less than 30
nor more than 60 days prior to the date fixed for redemption. Each such notice
shall state (i) the Redemption Date, (ii) the number of shares of Tracking
Preferred Stock to be redeemed, (iii) a brief summary of the manner in which the
redemption price is to be determined and a calculation of the redemption price
pursuant to paragraph (a)(i) of this Section 4 (assuming, for the purpose of the
notice only, that no change in the Dividend Rate will occur between the initial
notice date and the Redemption Date), (iv) the place or places where
certificates for such shares of Tracking Preferred Stock are to be surrendered
for payment of the redemption price, (v) that Base Dividends on the shares to be
redeemed shall cease to accrue on such redemption date, and (vi) that holders
who provide appropriate instructions will be paid by wire transfer. If fewer
than all shares held by any holder are to be redeemed, the notice given to such
holder shall also specify the number of shares to be redeemed from such holder.
A separate notice shall also be given by the Corporation on the Redemption Date
(contemporaneously with the payment of the redemption price) stating the manner
in which the redemption price was determined, together with supporting
information in reasonable detail setting forth the basis for the determination.
9
<PAGE>
(e) Notwithstanding the foregoing provisions of paragraph (a) of this
Section 4, if any Base Dividends on shares of Tracking Preferred Stock are in
arrears, no shares of Tracking Preferred Stock shall be redeemed unless all
outstanding shares of Tracking Preferred Stock are simultaneously redeemed, and
the Corporation shall not purchase or otherwise acquire any shares of Tracking
Preferred Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Tracking Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Tracking Preferred Stock.
(f) If notice of redemption has been given under paragraph (d) of this
Section 4, from and after the Redemption Date for the shares of Tracking
Preferred Stock called for redemption (unless default shall be made by the
Corporation in providing money for the payment of the redemption price of the
shares so called for redemption), Base Dividends on the shares of Tracking
Preferred Stock so called for redemption shall cease to accrue and such shares
shall no longer be deemed to be outstanding, and all rights of the holders
thereof as stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance
with such notice of the certificates for any shares so called for redemption
(properly endorsed or signed for transfer, if the Board or a duly authorized
committee thereof shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation on the Redemption Date at the redemption
price aforesaid. If fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
5. Liquidation Rights. (a) Upon the dissolution, liquidation, or
winding up of the Corporation, whether voluntary or involuntary, the Corporation
shall pay or cause to be paid to the holders of the shares of Tracking Preferred
Stock, out of the assets of the Corporation (whether capital or surplus)
available for distribution to its stockholders, before any payment or
distribution shall be made on the Common Stock or any other class or series of
stock ranking junior to Tracking Preferred Stock upon liquidation, dissolution
or winding up, an amount equal to the greater of (i) $200 per share, plus an
amount equal to all Base Dividends (whether or not earned or declared) accrued
and unpaid thereon to the date of final distribution, and (ii) the Fair Market
Value of a Per Share Tracking Interest in the Limited Liability Company,
determined to the extent practicable as of the date of final distribution (but,
in a voluntary dissolution, liquidation or winding up, not more than ten days
prior to such date) in the manner set forth in Section 4(a) hereof.
(b) Section 5 of the Action provides that the Limited Liability
Company shall pay holders of interests in the Limited Liability Company
liquidating distributions upon dissolution of the Limited Liability Company. If
the Limited Liability Company makes dissolution payments pursuant to Section 5
of the Action to a holder of Tracking Preferred Stock, as an assignee of the
Corporation's interest in the Limited Liability Company, the amount of the
payments on each share of Tracking Preferred Stock that would otherwise be
payable to such holder by the Corporation pursuant to this Section 5 shall be
reduced, dollar for dollar on a per share basis (but not below zero), by the
amount of such Limited Liability Company dissolution payments thus distributed
on one share of Class A Preferred Securities to such holder, provided, that no
such reduction shall result from a payment made prior to December 31, 1999 in
connection with the voluntary dissolution of the Limited Liability Company.
(c) Neither the sale of all or substantially all the property and
assets of the Corporation, nor the merger or consolidation of the Corporation
into or with any other
10
<PAGE>
corporation, nor the merger or consolidation of any other corporation into or
with the Corporation (each, an "Event") shall be deemed to be a dissolution,
liquidation, or winding up, voluntary or involuntary, of the Corporation, for
the purposes of this Section 5. Written notice of any such Event shall be given
by telex or telecopy, with a copy delivered by overnight courier, not less than
20 days prior to such Event, to each holder of Tracking Preferred Stock, at the
telex or telecopier number provided to the Corporation by such holder and to the
address shown on the books of the Corporation or any transfer agent for the
Tracking Preferred Stock.
(d) After the payment to the holders of the shares of Tracking
Preferred Stock of the full preferential amounts provided for in this Section 5,
the holders of Tracking Preferred Stock, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
(e) In the event the assets of the Corporation, or proceeds thereof,
available for distribution to the holders of shares of Tracking Preferred Stock
upon any dissolution, liquidation, or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all amounts to
which such holders are entitled pursuant to paragraph (a) of this Section 5, no
such distribution shall be made on account of any shares of any other series of
preferred stock or other capital stock of the Corporation ranking on a parity
with the shares of Tracking Preferred Stock upon such dissolution, liquidation,
or winding up unless proportionate distributive amounts shall be paid on account
of the shares of Tracking Preferred Stock, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation, or winding up.
(f) Subject to the rights of the holders of the shares of any series
or class or classes of stock ranking on a parity with or prior to the shares of
Tracking Preferred Stock upon liquidation, dissolution, or winding up, upon any
liquidation, dissolution, or winding up of the Corporation, after payment shall
have been made in full to the holders of the shares of Tracking Preferred Stock
as provided in this Section 5, but not prior thereto, any other series or class
or classes of stock ranking junior to the shares of Tracking Preferred Stock
upon liquidation shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be paid
or distributed, and the holders of the shares of Tracking Preferred Stock shall
not be entitled to share therein.
(g) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, stating the payment date or dates
when, and the place or places where, the amounts distributable to each holder of
Tracking Preferred Stock in such circumstances shall be payable shall be given
by telex or telecopy, with a copy delivered by overnight courier, not less than
20 days prior to any payment date stated therein, to each holder of Tracking
Preferred Stock, at the telex or telecopier number provided to the Corporation
by such holder and to the address shown on the books of the Corporation or any
transfer agent for the Tracking Preferred Stock.
6. Ranking. For the purposes of this resolution, any stock of any
series or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of Tracking Preferred Stock, as to dividends
or as to distribution of assets upon liquidation, dissolution or winding up if
the holders of such series or class or classes shall be entitled to the receipt
of dividends or of amounts distributable upon dissolution, liquidation, or
winding up of the Corporation, as the case may be, in preference or priority to
the holders of shares of Tracking Preferred Stock;
11
<PAGE>
(b) on a parity with shares of Tracking Preferred Stock, as to
dividends or as to distribution of assets upon liquidation, dissolution or
winding up whether or not the dividend rates, dividend payment dates, or
redemption or liquidation prices per share thereof, or sinking fund provisions,
if any, be different from those of Tracking Preferred Stock, if the holders of
such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation, or winding up of the Corporation,
as the case may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of Tracking
Preferred Stock; and
(c) junior to shares of Tracking Preferred Stock, as to dividends or
as to distribution of assets upon liquidation, dissolution or winding up if such
class shall be Common Stock or if the holders of shares of Tracking Preferred
Stock shall be entitled to receipt of dividends or of amounts distributable upon
dissolution, liquidation, or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of such series or class or
classes.
7. Priority of Tracking Preferred Stock. The shares of Tracking
Preferred Stock will rank on a parity, both as to payment of dividends and the
distribution of assets upon liquidation, with the Corporation's 10.24%
Cumulative Preferred Stock, Cumulative Convertible Preferred Stock, Series B,
and ESOP Cumulative Convertible Preferred Stock. The Tracking Preferred Stock
will rank prior, both as to payment of dividends and the distribution of assets
upon liquidation, to the Common Stock and the Corporation's Series A Junior
Participating Preferred Stock.
8. Purchase of Shares by the Corporation. The Corporation, directly
or indirectly, may not purchase shares of Tracking Preferred Stock from any
holder thereof except in connection with a general offer to purchase shares,
either in whole or in part pro rata in proportion to the number of shares held
by such holders (with adjustments to avoid the purchase of fractional shares),
made to all holders of Tracking Preferred Stock.
9. Obligation of the Corporation. (a) The obligation to pay
dividends on and the liquidation preference of the Tracking Preferred Stock
shall be an absolute obligation of the Corporation and shall be unaffected by
the status or actions of the Limited Liability Company, including without
limitation the bankruptcy, dissolution or other adverse development affecting
the Limited Liability Company; provided, that the amounts payable by the
Corporation in satisfaction of such obligation are subject to reduction in the
manner and to the extent set forth in Sections 2(c), 3(d), 4(b) and 5(b) hereof.
(b) To the extent that any amount paid to a holder of Tracking
Preferred Stock by the Limited Liability Company, pursuant to Sections 2(c),
3(d), 4(b), 5(b) or otherwise, results in a reduction in the amount of
dividends, amounts paid upon redemption or liquidation preference payable to
such holder by the Corporation and a court or other governmental authority, body
or agency determines that such payment by the Limited Liability Company
constitutes a preference, fraudulent transfer, fraudulent conveyance or similar
payment under any applicable law and shall be returned (or paid to a trustee,
receiver or other third party) by such holder, the obligation of the Corporation
to pay such amount shall be reinstated and shall be treated hereunder as though
it was never paid and such amount shall be promptly paid by the Corporation to
such holder to the fullest extent permitted by law."
12
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations to be signed by John T. Thornton, its Executive Vice President, and
attested by Laurel A. Holschuh, its Secretary, whereby such Executive Vice
President and Secretary affirm, under penalties of perjury, that this
Certificate of Designations is the act and deed of the Corporation and that the
facts stated herein are true, this 30th day of December, 1994.
NORWEST CORPORATION
By /s/ John T. Thornton
----------------------------
John T. Thornton
Executive Vice President
Attest:
/s/ Laurel A. Holschuh
- ----------------------
Laurel A. Holschuh, Secretary
13
