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):
February 26, 1996
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
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 612-667-1234
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Form 8-K
NORWEST CORPORATION
ITEM 5. Other Events
On February 26, 1996, Norwest Corporation filed with the Delaware Secretary of
State a Certificate of Designations with respect to its 1996 ESOP Cumulative
Convertible Preferred Stock.
ITEM 7. Exhibits
Filed herewith as Exhibit 3 is the Certificate of Designations with respect to
the 1996 ESOP Cumulative Convertible Preferred Stock.
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Exhibit
The following exhibit is filed in response to Item 601 of Regulation S-K.
Exhibit No. Exhibit
3 Certificate of Designations with respect to the 1996
ESOP Cumulative Convertible Preferred Stock.
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 thereunto duly authorized.
NORWEST CORPORATION
March 13, 1996 By_/s/Laurel A. Holschuh
Senior Vice President
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Exhibit 3
NORWEST CORPORATION
___________________________________
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
___________________________________
1996 ESOP CUMULATIVE CONVERTIBLE 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 resolution was duly adopted by the Board of
Directors of the Corporation (the "Board"), pursuant to authority conferred
upon the Board by the provisions of the Restated Certificate of
Incorporation of the Corporation, as amended, which authorizes the
issuance of up to 5,000,000 shares of Preferred Stock, without par value
(the "Preferred Stock"), at a meeting of the Board duly held on February 26,
1996:
RESOLVED that the issuance of a series of Preferred Stock, without
par value, of the Corporation is hereby authorized and the designation,
voting powers, 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 Incorporation of the
Corporation, as amended, are hereby fixed as follows:
1996 ESOP CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. Designation and Number of Shares; Restricted Issue. (a) The
designation of the series of Preferred Stock, without par value, provided for
herein shall be "1996 ESOP Cumulative Convertible Preferred Stock"
(hereinafter referred to as the "1996 ESOP Preferred Stock") and the
number of authorized shares constituting the 1996 ESOP Preferred Stock is
59,000, based on an offering price for the 1996 ESOP Preferred Stock of
$1,040.00 per share. Each share of 1996 ESOP Preferred Stock shall have
a stated value of $1,000.00 per share. The number of authorized shares of
1996 ESOP Preferred Stock may be reduced 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,
provided, however, that the authorized number of shares of 1996 ESOP
Preferred Stock shall not be decreased below the then outstanding number
of such shares, and provided further that the number of authorized shares of
1996 ESOP Preferred Stock shall not be increased. All shares of the 1996
ESOP Preferred Stock purchased, redeemed, or converted by the
Corporation shall be retired and canceled and shall be
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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 1996 ESOP Preferred Stock.
(b) Shares of 1996 ESOP Preferred Stock shall be issued only to a
trustee (the "Trustee") acting on behalf of the Norwest Corporation Savings
Investment Plan and Master Savings Trust, or any successor to such plan
(the "Plan"). All references to the holder of shares of 1996 ESOP Preferred
Stock shall mean the Trustee or any company with which or into which the
Trustee may merge or any successor trustee under the trust agreement with
respect to the Plan. In the event of any transfer of record ownership of
shares of 1996 ESOP Preferred Stock to any person other than any
successor trustee under the Plan, the shares of 1996 ESOP Preferred Stock
so transferred, upon such transfer and without any further action by the
Corporation or the holder thereof, shall be automatically converted into
shares of the common stock, par value $1-2/3 per share, of the Corporation
(the "Common Stock") on the terms otherwise provided for the conversion
of the shares of 1996 ESOP Preferred Stock into shares of Common Stock
pursuant to paragraph (a) of Section 4 hereof and no such transferee shall
have any of the voting powers, preferences, and relative, participating,
optional or special rights ascribed to shares of 1996 ESOP Preferred Stock
hereunder but, rather, only the powers and rights pertaining to the Common
Stock into which such shares of 1996 ESOP Preferred Stock shall be so
converted. In the event of such a conversion, the transferee of the shares of
1996 ESOP Preferred Stock shall be treated for all purposes as the record
holder of the shares of Common Stock into which such shares of 1996
ESOP Preferred Stock have been automatically converted as of the date of
such transfer. Certificates representing shares of 1996 ESOP Preferred
Stock shall bear a legend to reflect the foregoing provisions.
Notwithstanding the foregoing provisions of this paragraph (b) of Section 1,
shares of 1996 ESOP Preferred Stock (i)(A) shall be converted into shares
of Common Stock as provided in paragraph (a) of Section 4 hereof, and (B)
may be converted into shares of Common Stock as provided by paragraph
(b) of Section 4 hereof and the shares of Common Stock issued upon such
conversion may be transferred by the holder thereof as permitted by law and
(ii) shall be redeemable by the Corporation upon the terms and conditions
provided in Sections 5 and 6(c) hereof.
2. Voting Rights. No shares of 1996 ESOP Preferred Stock shall have
voting rights except such voting rights as may from time to time be required
by law and as set forth in this Section 2, as follows:
(a) Whenever, at any time or times, dividends payable on shares of
1996 ESOP Preferred Stock 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 1996 ESOP Preferred Stock shall have
the exclusive right, voting together as a class with holders of shares of any
one or more other series of Preferred Stock ranking on a parity with the
shares of 1996 ESOP Preferred Stock, 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
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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 1996 ESOP Preferred Stock 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 Preferred 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 1996 ESOP Preferred Stock
(together with the holders of shares of any one or more other series of
Preferred Stock ranking on such a parity and upon which like voting rights
have been conferred and are exercisable) as herein set forth. The right of
such holders of such shares of 1996 ESOP Preferred Stock (voting together
as a class with the holders of shares of any one or more other series of
Preferred Stock ranking on such a parity and upon which like voting rights
have been conferred and are exercisable) to elect members of the Board as
aforesaid shall continue until such time as all dividends accumulated on such
shares of 1996 ESOP Preferred Stock shall have been paid in full, at which
time such right with respect to such shares of 1996 ESOP Preferred Stock
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.
(b) Upon any termination of the right of the holders of all shares
of Preferred Stock entitled 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 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 may choose a successor to fill such
vacancy, which such successor 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.
(c) So long as any shares of 1996 ESOP Preferred Stock remain
outstanding, the consent of the holders of the outstanding shares of 1996
ESOP Preferred Stock and outstanding shares of all other series of
Preferred Stock ranking on a parity with such shares of 1996 ESOP
Preferred Stock 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, by a vote of at least two-thirds of
all such outstanding shares of 1996 ESOP Preferred Stock and such other
series of Preferred Stock voting together as a class, 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:
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(i) the authorization, creation or issuance, or any increase
in the authorized or issued amount, of any class or series of stock ranking
prior to shares of 1996 ESOP Preferred Stock with respect to payment of
dividends or the distribution of assets on liquidation, dissolution or
winding up, or
(ii) 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 Designations designating shares of 1996 ESOP Preferred Stock 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 of 1996 ESOP Preferred Stock 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 of Preferred Stock, in each
case ranking on a parity with or junior to the shares of 1996 ESOP
Preferred Stock 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.
(d) 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 of 1996 ESOP Preferred
Stock shall have been redeemed or sufficient funds shall have been
deposited in trust to effect such redemption.
3. Dividends. (a)(i) Holders of shares of 1996 ESOP 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 of $85.00 (the "Base
Dividend") per share, which Base Dividend shall be subject to adjustment
from time to time as provided in this Section 3.
(ii) The Base Dividend shall be adjusted, effective on
December 1, 1997 and on each December 1 thereafter until December 1, 2005, as
follows:
(1) If the Current Market Price (as hereinafter
defined) of one share of Common Stock on November 30 (or the next preceding
Trading Day (as hereinafter defined) if November 30 is not a Trading Day)
of any year listed in the Dividend Adjustment Table below is equal to the
First Target Price but less than the Second Target Price shown opposite
that year in such table, then holders of shares of the 1996 ESOP Preferred
Stock will be entitled to receive a cash dividend for the immediately
following twelve month period equal to $90.00 per share (the "First
Adjusted Dividend").
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(2) If the Current Market Price of one share of Common
Stock on November 30 (or the next preceding Trading Day if
November 30 is not a Trading Day) of any year listed in the
Dividend Adjustment Table below is equal to or greater than the
Second Target Price shown opposite that year in such table, then
holders of shares of 1996 ESOP Preferred Stock will be entitled to
receive a cash dividend for the immediately following twelve month
period equal to $95.00 per share (the "Second Adjusted Dividend").
(3) If the Current Market Price of one share of Common
Stock on November 30 (or next preceding Trading Day if November
30 is not a Trading Day) of any year listed in the Dividend
Adjustment Table below is less than the First Target Price shown
opposite that year in such table, then the holders of shares of 1996
ESOP Preferred Stock will be entitled to receive a cash dividend for
the immediately following twelve month period equal to the Base
Dividend.
Dividend Adjustment Table
Closing Price on 11/30 First Target Price Second Target Price
1997 $ 40.324 $ 45.365
1998 44.759 53.531
1999 49.683 63.166
2000 55.148 74.536
2001 61.214 87.953
2002 67.947 103.784
2003 75.422 122.466
2004 83.718 144.509
2005 92.927 170.521
(4) As an example of the adjustments described in
subparagraphs (1) through (3) above, if on November 30, 2000, the
Current Market Price of one share of Common Stock is $70.00, then
the cash dividend payable for the immediately following twelve
month period per share of 1996 ESOP Preferred Stock would equal
$90.00. If on November 30, 2001, the Current Market Price of one
share of Common Stock is $100.00, then the cash dividend payable
for the immediately following twelve month period per share of 1996
ESOP Preferred Stock would equal $95.00. If on November 30,
2002, the Current Market Price of one share of Common Stock is
$65.00, then the cash dividend payable for the immediately following
twelve month period per share of 1996 ESOP Preferred Stock
would equal $85.00.
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(5) For purposes of this Section 3, the terms "First
Adjusted Dividend" and "Second Adjusted Dividend" are sometimes referred
to as an "Adjusted Dividend;" the term "Current Market Price" shall
have the meaning given to it in Section 4(c)(iv); and the term
"Trading Day" shall have the meaning given to it in Section 4(c)(vi).
(iv) If one share of Common Stock in any year listed in the
Dividend Adjustment Table 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, then the First Target Price and the Second Target Price listed
in such table for that year and each subsequent year will be appropriately
and proportionately adjusted.
(v) Dividends payable on shares of the 1996 ESOP Preferred
Stock (whether such dividends are equal to the Base Dividend or to an
Adjusted Dividend) shall be payable quarterly on March 1, June 1,
September 1, and December 1 of each year, commencing June 1, 1996.
Dividends on shares of the 1996 ESOP Preferred Stock will be cumulative
from the date of initial issuance of such shares of 1996 ESOP Preferred
Stock. Dividends will be payable, in arrears, 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. The amount of dividends payable per share for each dividend
period shall be computed by dividing by four the Base Dividend or the
Adjusted Dividend, whichever is then applicable. The amount of dividends
payable for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of actual days elapsed in a
360-day year of twelve 30-day months.
(b)(i) 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 the 1996 ESOP Preferred Stock for any period
unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof
has been set apart for such payment on shares of 1996 ESOP Preferred
Stock for all dividend payment periods terminating on or prior to the date of
payment of such full cumulative dividends. When dividends are not paid in
full, as aforesaid, upon the shares of 1996 ESOP Preferred Stock and any
other series of Preferred Stock ranking on a parity as to dividends with 1996
ESOP Preferred Stock, all dividends declared upon shares of 1996 ESOP
Preferred Stock and any other series of Preferred Stock ranking on a parity
as to dividends with 1996 ESOP Preferred Stock shall be declared pro rata
so that the amount of dividends declared per share on 1996 ESOP Preferred
Stock and such other series of Preferred Stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the shares of 1996
ESOP Preferred Stock and such other series of Preferred Stock bear to each
other. Holders of shares of 1996 ESOP Preferred Stock shall not be entitled
to any dividend, whether payable in cash, property, or stock, in excess of
full cumulative dividends, as herein provided, on 1996 ESOP Preferred
Stock. No interest, or
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sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on 1996 ESOP Preferred Stock which may be in
arrears.
(ii) So long as any shares of 1996 ESOP 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
Common Stock, or any other stock ranking junior to 1996 ESOP Preferred
Stock as to dividends or upon liquidation and other than as provided in
paragraph (b)(i) of this Section 3), shall be declared or paid or set aside for
payment or other distribution declared or made upon Common Stock or any
other capital stock of the Corporation ranking junior to or on a parity with
1996 ESOP 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 1996 ESOP
Preferred Stock as to dividends or upon liquidation), unless, in each case,
the full cumulative dividends on all outstanding shares of 1996 ESOP
Preferred Stock shall have been paid or declared and set aside for payment
of the then current dividend payment period and all past dividend payment
periods.
4. Conversion. Shares of 1996 ESOP Preferred Stock are convertible
from time to time hereafter pursuant to the provisions of paragraphs (a) or
(b) of this Section 4 into that number of shares of Common Stock
determined by dividing the stated value of each share of 1996 ESOP
Preferred Stock by the then applicable Conversion Price, (as determined in
accordance with the provisions of paragraph (c)(iii) of this Section 4), as
follows:
(a) Each share of 1996 ESOP Preferred Stock released from the
unallocated reserve of the Plan in accordance with the terms thereof shall be
automatically converted, without any further action by the Corporation or
the holder thereof, as of the date such release occurs (the "Release Date"),
into fully paid and nonassessable shares of Common Stock at the then
applicable Conversion Price for the 1996 ESOP Preferred Stock provided
for in paragraph (c) of this Section 4.
(b) Subject to and upon compliance with the provisions of this
Section 4, a holder of 1996 ESOP Preferred Stock shall be entitled at any
time, prior to the close of business on the date fixed for redemption of such
shares pursuant to Sections 5 or 6 hereof, to cause any or all of the shares of
1996 ESOP Preferred Stock held by such holder to be converted into fully
paid and nonassessable shares of Common Stock at the then applicable
Conversion Price for 1996 ESOP Preferred Stock provided for in paragraph
(c) of this Section 4.
(c) For purposes of these resolutions, the following terms shall
have the meanings set forth below:
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(i) The "Average Current Market Price" per share of
Common Stock on any date shall be deemed to be the average of the
Current Market Price for one share of Common Stock for the twenty (20)
consecutive Trading Days ending on the Trading Day occurring prior to
the date the "Purchase Offer" is made (as that term is defined in Section
6(d) hereof).
(ii) A "Business Day" means each day that is not a Saturday,
Sunday, or a day on which state or federally chartered banking institutions
in the State of New York are not required to be open.
(iii)(A) For purposes of a mandatory conversion of shares of
1996 ESOP Preferred Stock into shares of Common Stock pursuant to the
provisions of paragraph (a) of this Section 4, the "Conversion Price" for
such shares of 1996 ESOP Preferred Stock shall be the Current Market
Price of one share of Common Stock on the date immediately preceding the
relevant Release Date.
(B) For purposes of an optional conversion of shares
of 1996 ESOP Preferred Stock into shares of Common Stock pursuant to the
provisions of paragraph (b) of this Section 4, the "Conversion Price" for
such shares of 1996 ESOP Preferred Stock shall be the Current Market
Price of one share of Common Stock on the date the Conversion Notice (as
that term is defined in paragraph (d) of this Section 4) is received by the
Corporation, by the transfer agent for the 1996 ESOP Preferred Stock or by
any agent for conversion of the 1996 ESOP Preferred Stock designated as
such pursuant to paragraph (d) of this Section 4.
(C) For purposes of a conversion of shares of 1996
ESOP Preferred Stock into shares of Common Stock in connection with a
"Purchase Offer" (as defined in Section 6(d) hereof), the "Conversion Price"
for such shares of 1996 ESOP Preferred Stock shall be the Average Current
Market Price of one share of Common Stock.
Each share of 1996 ESOP Preferred Stock shall be valued at its stated value
of $1,000.00 for purposes of computing, based on the applicable
Conversion Price, the number of shares of Common Stock into which the
shares of 1996 ESOP Preferred Stock will be converted.
(iv) The "Current Market Price" of publicly traded shares
of Common Stock or any other class of capital stock or other security of the
Corporation or any other issuer for any day shall mean the reported last sale
price, regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape
or, if the Common Stock is not listed or admitted to trading on the New
York Stock Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the
National Market System of the National Association of
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Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or,
if the Common Stock is not quoted on such National Market System, the
average of the closing bid and asked prices on such day in the over-the-
counter market as reported by NASDAQ or, if bid and asked prices for
the Common Stock on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the
Board or a committee thereof or, if no such quotations are available, the
fair market value of the Common Stock as determined by a New York
Stock Exchange member firm regularly making a market in the Common
Stock selected for such purpose by the Board or a committee thereof.
(v) "Common Stock" shall mean the Common Stock of the
Corporation as the same exists at the date of this Certificate of Designations
or as such stock may be constituted from time to time.
(vi) "Trading Day" with respect to Common Stock means
(x) if the Common Stock is listed or admitted for trading on the New
York Stock Exchange or another national securities exchange, a day on
which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if the Common Stock is quoted on
the National Market System of NASDAQ, a day on which trades may be
made on such National Market System or (z) otherwise, any Business
Day.
(d) In connection with any conversion of 1996 ESOP Preferred
Stock pursuant to this Section 4, the certificate or certificates representing
the shares of 1996 ESOP Preferred Stock being converted pursuant to this
Section 4, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto), shall be
surrendered at the principal executive office of the Corporation or the
offices of the transfer agent for the 1996 ESOP Preferred Stock or such
office or offices in the continental United States of an agent for conversion
as may from time to time be designated by notice to the holders of the 1996
ESOP Preferred Stock by the Corporation or the transfer agent for the 1996
ESOP Preferred Stock, accompanied by a written notice of conversion (the
"Conversion Notice"). Such Conversion Notice shall specify (i)(y) in the
case of a mandatory conversion pursuant to paragraph (a) of this Section 4,
the number of shares of 1996 ESOP Preferred Stock released from the
unallocated reserve of the Plan on the Release Date or (z) in the case of an
optional conversion pursuant to paragraph (b) of this Section 4, the number
of shares of 1996 ESOP Preferred Stock being converted, and (ii) in
connection with any conversion hereunder, (x) the name or names in which
such holder wishes the certificate or certificates for Common Stock and for
any shares of 1996 ESOP Preferred Stock not to be so converted to be
issued, (y) the address to which such holder wishes delivery to be made of
such new certificates to be issued upon such conversion, and (z) such other
information as the Corporation or its agents may reasonably request.
(e) Upon surrender of a certificate representing a share or shares
of 1996 ESOP Preferred Stock for conversion, the Corporation shall issue and
send by hand delivery, by courier or by first-class mail (postage prepaid) to
the holder thereof or to such
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holder's designee, at the address designated by such holder, a certificate or
certificates for the number of shares of Common Stock to which such holder
shall be entitled upon conversion. If there shall have been surrendered a
certificate or certificates representing shares of 1996 ESOP Preferred Stock
only part of which are to be converted, the Corporation shall issue and
deliver to such holder or such holder's designee, in the manner set forth in
the preceding sentence, a new certificate or certificates representing the
number of shares of 1996 ESOP Preferred Stock which shall not have been
converted.
(f) The issuance by the Corporation of shares of Common Stock
upon a conversion of shares of 1996 ESOP Preferred Stock into shares of
Common Stock made pursuant to this Section 4 shall be effective (i) in the
case of a mandatory conversion of shares of 1996 ESOP Preferred Stock
pursuant to paragraph (a) of this Section 4, as of the Release Date; and (ii)
in the case of an optional conversion of such shares pursuant to paragraph
(b) of this Section 4, as of the earlier of (A) the delivery to such holder or
such holder's designee of the certificates representing the shares of Common
Stock issued upon conversion thereof or (B) the commencement of business
on the second Business Day after the surrender of the certificate or
certificates for the shares of 1996 ESOP Preferred Stock to be converted,
duly assigned or endorsed for transfer to the Corporation (or accompanied
by duly executed stock powers relating thereto) and accompanied by all
documentation required to effect the conversion, as provided by these
resolutions. On and after the effective date of conversion, the person or
persons entitled to receive the Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders
of such shares of Common Stock, but no allowance or adjustment shall be
made in respect of dividends payable to holders of Common Stock in
respect of any period prior to such effective date. The Corporation shall not
be obligated to pay any dividends which shall have accrued or have been
declared and shall be payable to holders of shares of 1996 ESOP Preferred
Stock if the date on which such dividends are paid is on or after the effective
date of conversion of such shares.
(g) The Corporation shall not be obligated to deliver to holders
of 1996 ESOP Preferred Stock any fractional share or shares of Common
Stock issuable upon any conversion of such shares of 1996 ESOP Preferred
Stock, but in lieu thereof may make a cash payment in respect thereof in any
manner permitted by law.
(h) The Corporation shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for issuance upon the
conversion of shares of 1996 ESOP Preferred Stock as herein provided, free
from any preemptive rights, such number of shares of Common Stock as
shall from time to time be issuable upon the conversion of all the shares of
1996 ESOP Preferred Stock then outstanding.
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(i) The Corporation will use its best efforts to cause the listing
of the shares of Common Stock required to be delivered upon conversion of
the 1996 ESOP Preferred Stock prior to distribution to Plan participants on
the national securities exchange, if any, upon which the outstanding
Common Stock is listed at the time of such delivery.
(j) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversions of the 1996 ESOP Preferred Stock
pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock in a name other
than that of the holder of the 1996 ESOP Preferred Stock to be converted
and no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Corporation the amount of
any such tax or has established, to the satisfaction of the Corporation, that
such tax has been paid.
(k) Upon the issuance of shares of Common Stock following
conversion of shares of 1996 ESOP Preferred Stock as contemplated by this
Section 4, the Corporation shall, to the extent provided for, and subject to
the limitations set forth in the Rights Agreement hereafter described, issue
together with each such share of Common Stock one right to purchase
Series A Junior Participating Preferred Stock of the Corporation (or other
securities in lieu thereof) pursuant to the Rights Agreement dated as of
November 22, 1988 between the Corporation and Citibank, N.A., as Rights
Agent, as such agreement may from time to time be amended, or any rights
issued to holders of Common Stock of the Corporation in addition thereto
or in replacement therefor, whether or not such rights shall be exercisable at
such time, but only if such rights are issued and outstanding and held by
other holders of Common Stock of the Corporation at such time and have
not expired.
5. Redemption At the Option of the Corporation. (a) The 1996 ESOP
Preferred Stock shall be redeemable, in whole or in part, at the option of the
Corporation at any time, at a redemption price per share of 1996 ESOP
Preferred Stock equal to the higher of (x) $1,000.00 per share, plus an
amount equal to all accrued and unpaid dividends thereon to the date fixed
for redemption, and (y) the Fair Market Value (as that term is defined in
paragraph (d) of this Section 5) per share of 1996 ESOP Preferred Stock on
the date fixed for redemption. Payment of the redemption price shall be
made by the Corporation in cash or shares of Common Stock, or a
combination thereof, as permitted by paragraph (c) of this Section 5. From
and after the date fixed for redemption, dividends on shares of 1996 ESOP
Preferred Stock called for redemption will cease to accrue and all rights in
respect of such shares of the Corporation shall cease, except the right to
receive the redemption price. Upon payment of the redemption price, such
shares shall be deemed to have been transferred to the Corporation, to be
retired as provided in paragraph (a) of Section 1. If the full cumulative
dividends have not been paid, or contemporaneously declared and set aside
for payment, on all outstanding shares of 1996 ESOP Preferred Stock, the
Company may not redeem fewer than all the outstanding shares of 1996
ESOP Preferred Stock pursuant to this Section 5.
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(b) Unless otherwise required by law, notice of any redemption
pursuant to this Section 5 will be sent to the holders of 1996 ESOP
Preferred Stock at the address shown on the books of the Corporation or
any transfer agent for the 1996 ESOP Preferred Stock by hand delivery, by
courier, by standard form of telecommunication or by first-class mail
(postage prepaid) delivered, sent or mailed, as the case may be, not less than
twenty (20) days nor more than sixty (60) days prior to the redemption date.
ach such notice shall state: (i) the redemption date; (ii) the total number
of shares of the 1996 ESOP Preferred Stock to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price; (iv)
whether the redemption price shall be paid in cash or in shares of Common
Stock, or in a combination of such Common Stock and cash; (v) the place
or places where certificates for such shares are to be surrendered for
payment of the redemption price; (vi) that dividends on the shares to be
redeemed will cease to accrue on such redemption date; and (vii) the
conversion rights of the shares to be redeemed, the period within which
conversion rights may be exercised and the manner in which the number of
shares of Common Stock issuable upon conversion of a share of 1996
ESOP Preferred Stock will be determined. Upon surrender of the certificate
for any shares so called for redemption and not previously converted
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares shall
be redeemed by the Corporation at the date fixed for redemption and at the
redemption price set forth in this Section 5.
(c) The Corporation, at its option, may make payment of the
redemption price required upon redemption of shares of 1996 ESOP
Preferred Stock in cash or in shares of Common Stock, or in a combination
of such Common Stock and cash, any such shares of Common Stock to be
valued for such purposes at their Fair Market Value (as defined in paragraph
(d)(ii) of this Section 5) or their Current Market Value, in either case as of
the date fixed for redemption of the 1996 ESOP Preferred Stock, whichever
value will result in the issuance of the greater number of shares of Common
Stock to the holder of the 1996 ESOP Preferred Stock then being
redeemed.
(d) For purposes of these resolutions, the following terms shall
have the meanings set forth below:
(i) "Adjustment Period" shall mean the period of five (5)
consecutive Trading Days preceding the date as of which the Fair Market
Value of a security is to be determined.
(ii) "Fair Market Value" shall mean, as to shares of Common
Stock or any other class of capital stock or securities of the Corporation or
any other issue which are publicly traded, the average of the Current Market
Prices of such shares or securities for each day of the Adjustment Period.
The "Fair Market Value" of any security which is not publicly traded (other
than the 1996 ESOP Preferred Stock) or of any other property shall mean
the fair value thereof on the date as of which the Fair Market Value of the
security is to be determined, as determined by an independent investment
banking or appraisal firm experienced in the valuation of such securities or
property selected in good faith by the
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Board or a committee thereof. The "Fair Market Value" of the 1996 ESOP
Preferred Stock for purposes of paragraph (a) of Section 5, and for
purposes of paragraph (c) of Section 6 shall mean the fair market value
thereof determined by an independent appraiser, appointed by the Trustee of
the Plan in accordance with the provisions of the Plan, as of the date fixed
for redemption of the 1996 ESOP Preferred Stock (in the case of a
redemption pursuant to Section 5) or as of the date specified in paragraph
(c) of Section 6 (in the case of a redemption under that section). For
purposes of determining the Fair Market Value of the 1996 ESOP Preferred
Stock, the independent appraiser shall assume (i) that all dividends on the
1996 ESOP Preferred Stock would have been paid when due, and (ii) that
the mandatory conversion of shares of 1996 ESOP Preferred Stock held by
the Plan into shares of Common Stock pursuant to Section 4(a) hereof
would have occurred when and as payments of principal (together with
accrued interest thereon) would have been made by the Trustee of the Plan
in accordance with the terms of that certain 1996 ESOP Convertible
Preferred Stock Note Agreement dated March 29, 1996 between the
Corporation and the Plan (including any amendments or modifications
thereto).
6. Consolidation, Merger, etc. (a) If the Corporation consummates
any consolidation or merger or similar business combination, pursuant to
which the outstanding shares of Common Stock are by operation of law
exchanged solely for or changed, reclassified or converted solely into stock
of any successor or resulting corporation (including the Corporation) that
constitutes "qualifying employer securities" with respect to a holder of 1996
ESOP Preferred Stock within the meaning of Section 409(1) of the Internal
Revenue Code of 1986, as amended, and Section 407(d)(5) of the Employee
Retirement Income Security Act of 1974, as amended, or any successor
provisions of law, and, if applicable, for a cash payment in lieu of fractional
shares, if any, the shares of 1996 ESOP Preferred Stock of such holder
shall, in connection with such consolidation, merger or similar business
combination, be assumed by and shall become Preferred Stock of such
successor or resulting corporation, having in respect of such corporation,
insofar as possible, the same powers, preferences and relative, participating,
optional or other special rights (including the redemption rights provided by
Sections 5 and 6 hereof), and the qualifications, limitations or restrictions
thereon, that the 1996 ESOP Preferred Stock had immediately prior to such
transaction, subject to the following:
(1) After such transaction each share of the 1996 ESOP Preferred
Stock shall be convertible, otherwise on the terms and conditions provided
by Section 4 hereof, into the number and kind of qualifying employer
securities so receivable by a holder of the number of shares of Common
Stock into which such shares of 1996 ESOP Preferred Stock could have
been converted immediately prior to such transaction.
(2) The Corporation shall not consummate any such merger,
consolidation or similar transaction unless all then outstanding shares of
1996 ESOP Preferred Stock shall be assumed and authorized by the
successor or resulting corporation as aforesaid.
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(b) If the Corporation consummates any consolidation or merger or
similar business combination, pursuant to which the outstanding shares of
Common Stock are by operation of law exchanged for or changed,
reclassified or converted into other stock or securities or cash or any other
property, or any combination thereof, other than any such consideration
which is constituted solely of qualifying employer securities (as referred to
in paragraph (a) of this Section 6) and cash payments, if applicable, in lieu
of fractional shares, outstanding shares of 1996 ESOP Preferred Stock shall,
without any action on the part of the Corporation or any holder thereof (but
subject to paragraph (c) of this Section 6), be automatically converted by
virtue of such merger, consolidation or similar transaction immediately prior
to such consummation into the number of shares of Common Stock into
which such shares of 1996 ESOP Preferred Stock could have been
converted at such time so that each share of 1996 ESOP Preferred Stock
shall, by virtue of such transaction and on the same terms as apply to the
holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property (payable in
like kind) receivable by a holder of the number of shares of Common Stock
into which such shares of 1996 ESOP Preferred Stock could have been
converted immediately prior to such transaction. However, if by virtue of
the structure of such transaction, a holder of Common Stock is required to
make an election with respect to the nature and kind of consideration to be
received in such transaction, which election cannot practicably be made by
the holders of the 1996 ESOP Preferred Stock, then the shares of 1996
ESOP Preferred Stock shall, by virtue of such transaction and on the same
terms as apply to the holders of Common Stock, be converted into or
exchanged for the aggregate amount of stock, securities, cash or other
property (payable in kind) receivable by a holder of the number of shares of
Common Stock into which such shares of 1996 ESOP Preferred Stock
could have been converted immediately prior to such transaction if such
holder of Common Stock failed to exercise any rights of election as to the
kind or amount of stock, securities, cash or other property receivable upon
such transaction. If the kind or amount of stock, securities, cash or other
property receivable upon such transaction is not the same for each non-
electing share, then the kind and amount of stock, securities, cash or other
property receivable upon such transaction for each non-electing share shall
be the kind and amount so receivable per share by a plurality of the non-
electing shares.
(c) In the event the Corporation shall enter into any agreement
providing for any consolidation or merger or similar business combination
described in paragraph (b) of this Section 6 (a "Business Combination"),
then the Corporation shall as soon as practicable thereafter (and in any event
at least fifteen (15) Business Days before consummation of such
transaction) give notice of such agreement and the material terms thereof to
each holder of 1996 ESOP Preferred Stock and each such holder shall have
the right to elect, by written notice to the Corporation, to receive, upon
consummation of such transaction (if and when such transaction is
consummated), from the Corporation or the successor of the Corporation,
in redemption and retirement of such 1996 ESOP Preferred Stock, a cash
payment per share of 1996 ESOP Preferred Stock equal to the higher of (x)
$1,000.00, plus accrued and unpaid dividends thereon to the date of
consummation of such transaction or (y) the Fair Market Value per share of
1996 ESOP Preferred Stock, as of the last Business Day (as defined in
paragraph (c) of Section 4 hereof) immediately
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preceding the date the Business Combination is consummated. No such
notice of redemption shall be effective unless given to the Corporation prior
to the close of business on the last Business Day prior to consummation of
such transaction, unless the Corporation or the successor of the Corporation
shall waive such prior notice, but any notice of redemption so given prior to
such time may be withdrawn by notice of withdrawal given to the
Corporation prior to the close of business on the last Business Day prior to
consummation of such transaction.
(d) In the event that a Purchase Offer (as defined below) shall
have been made and shall be continuing, each holder of 1996 ESOP Preferred
Stock shall have the right to convert shares of 1996 ESOP Preferred Stock
into shares of Common Stock at the Conversion Price specified in Section
4(c)(iii)(C) hereof until the date the Purchase Offer is terminated, including
without limitation because the original Purchase Offer is withdrawn or
because the Purchase Offer has expired and is not renewed, upon notice of
such conversion given to the Corporation not later than the close of business
on the date the Purchase Offer terminates (the "Purchase Offer Conversion
Period"), unless the Corporation or any successor of the Corporation shall
waive such prior notice, but any notice of conversion so given may be
withdrawn by notice of withdrawal given to the Corporation prior to the end
of the Purchase Offer Conversion Period.
For purposes of this paragraph (d), the following terms shall have
the meanings set forth below:
(i) "Beneficial Ownership" shall have the meaning ascribed to
it in Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange
Act") and "person" shall have the meanings specified in Sections 3(a)(9) and
13(d)(3) of the Exchange Act.
(ii) A "Purchase Offer" shall have been made when any person
(other than the Corporation or any affiliate of the Corporation) shall have
"commenced" (as such term is defined in Rule 14d-2 under the Exchange
Act) a tender offer or exchange offer to purchase shares of Common Stock,
such that, upon consummation of such offer, such person would have
Beneficial Ownership (as defined herein) or the right to acquire Beneficial
Ownership, of twenty percent (20%) or more of the voting power of the
Corporation.
7. Liquidation Rights. (a) Upon the dissolution, liquidation, or
winding up of the Corporation, the holders of the shares of 1996 ESOP
Preferred Stock shall be entitled to receive and to be paid out of the assets
of the Corporation available for distribution to its stockholders, before any
payment or distribution shall be made on the Common Stock or any other
class of stock ranking junior to 1996 ESOP Preferred Stock upon
liquidation, the amount of $1,000.00 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and
unpaid thereon to the date of final distribution.
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(b) 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 corporation, nor the merger or consolidation of any
other corporation into or with the Corporation shall be deemed to be a
dissolution, liquidation, or winding up, voluntary or involuntary, for the
purposes of this Section 7.
(c) After the payment to the holders of the shares of 1996 ESOP
Preferred Stock of the full preferential amounts provided for in this Section
7, the holders of 1996 ESOP Preferred Stock, as such, shall have no right or
claim to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of shares of 1996 ESOP 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 7,
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 1996 ESOP Preferred Stock upon such
dissolution, liquidation, or winding up unless proportionate distributive
amounts shall be paid on account of the shares of 1996 ESOP 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.
(e) 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 1996 ESOP 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 1996
ESOP Preferred Stock as provided in this Section 7, but not prior thereto,
any other series or class or classes of stock ranking junior to the shares of
1996 ESOP 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 1996 ESOP Preferred Stock shall not be entitled to share therein.
8. Ranking. For the purposes of these resolutions, any stock of any
series or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of 1996 ESOP Preferred Stock, either as to
dividends or upon liquidation, 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 1996 ESOP Preferred Stock;
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(b) on a parity with shares of 1996 ESOP Preferred Stock, either
as to dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates, or redemption or liquidation prices per share, or
sinking fund provisions, if any, be different from those of 1996 ESOP
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 1996 ESOP Preferred Stock; and
(c) junior to shares of 1996 ESOP Preferred Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of 1996 ESOP 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.
9. Priority of 1996 ESOP Preferred Stock. The shares of 1996 ESOP
Preferred Stock will rank on a parity, both as to payment of dividends and
the distribution of assets upon liquidation, with the Corporation's ESOP
Cumulative Convertible Preferred Stock, its 1995 ESOP Cumulative
Convertible Preferred Stock, and its Cumulative Tracking Preferred Stock.
The 1996 ESOP 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.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Designations to be signed by John T. Thornton, its Executive Vice
President and Chief Financial Officer, and attested by Laurel A. Holschuh,
its Secretary, whereby such Executive Vice President and Chief Financial
Officer affirms, 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 26th day of February, 1996.
NORWEST CORPORATION
By /s/ John T. Thornton
John T. Thornton
Executive Vice President and
Chief Financial Officer
Attest:
/s/ Laurel A. Holschuh
Laurel A. Holschuh
Secretary
[Filed in the Office of the Delaware Secretary of State on February 26,
1996]
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