<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 15, 1999
REGISTRATION NO. 333-79493
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
WELLS FARGO & COMPANY
(Exact name of Registrant as specified in its charter)
-----------------------
Delaware 41-0449260
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
420 Montgomery Street
San Francisco, California 94163
1-800-411-4932
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Stanley S. Stroup
Executive Vice President and General Counsel
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
415-396-6019
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
-----------------------
With a copy to:
Mary E. Schaffner Sonia A. Shewchuk Douglas D. Smith
Wells Fargo & Company Faegre & Benson LLP Gibson, Dunn & Crutcher
Norwest Center, 17th 2200 Norwest Center LLP
Floor 90 South Seventh Street One Montgomery Street
Sixth and Marquette Minneapolis, Minnesota Telesis Tower, 26th
Minneapolis, Minnesota 55402-3901 Floor
55479-1026
----------------------- San Francisco,
California 94104
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
<PAGE>
CALCULATION OF REGISTRATION FEE (1)
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED TO BE PRICE PER OFFERING REGISTRATION
(2) REGISTERED (3) UNIT (4) PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities (5),
Preferred Stock,
Depositary Shares,
Common Stock, par
value $1-2/3 per share
(6), and Securities
Warrants.............. $10,000,000,000 $10,000,000,000(7)(8) $2,780,000
</TABLE>
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(1) Estimated in accordance with Rule 457 solely for the purpose of
calculating the registration fee.
(2) Any securities registered hereunder may be sold separately or as units
with other securities registered hereunder.
(3) Includes such indeterminate number of shares of Preferred Stock, but with
an aggregate initial offering price not to exceed $10,000,000,000, plus
such indeterminate number of shares of Preferred Stock as may be issued
upon exercise of Securities Warrants or in exchange for, or upon
conversion of, Debt Securities or other Preferred Stock registered
hereunder, such indeterminate number of Depositary Shares as may be
issued in the event the Registrant elects to offer fractional interests
in shares of Preferred Stock registered hereunder, and such indeterminate
number of shares of Common Stock as may be issued upon exercise of
Securities Warrants or in exchange for, or upon conversion of, Debt
Securities or Preferred Stock registered hereunder. Also includes such
additional principal amount as may be necessary such that, if Debt
Securities are issued with an original issue discount, the aggregate
initial offering price of all Debt Securities will equal $10,000,000,000
less the dollar amount of other securities previously issued. There
remains $125,000,000 aggregate principal amount of Debt Securities,
Preferred Stock. Depositary Shares, Common Stock and Securities Warrants
previously registered on Form S-3, Registration Statement No. 33-61045
that was filed with the Commission on July 14, 1995 at which time a
filing fee of $43,103.75 was paid in connection with such securities and
$25,000,000 aggregate principal amount of Debt Securities, Preferred
Stock, Depositary Shares, Common Stock, Capital Securities and Securities
Warrants previously registered on Form S-3, Registration Statement No.
33-50435 that was filed with the Commission on September 29, 1993, at
which time a filing fee of $7,812.50 was paid in connection with such
securities.
(4) Omitted pursuant to General Instruction II.D of Form S-3.
(5) The Debt Securities to be offered hereunder will consist of one or more
series of Senior Debt Securities or Subordinated Debt Securities, or any
thereof, as more fully described herein.
(6) Common Stock will be issued only upon conversion, exchange or exercise of
Debt Securities, Preferred Stock, Depositary Shares or Securities
Warrants. Associated with the Common Stock are preferred share purchase
rights that will not be exercisable or evidenced separately from the
Common Stock prior to the occurrence of certain events.
(7) No separate consideration will be received for Debt Securities, Common
Stock, Preferred Stock or Depositary Shares that are issued upon
conversion of Debt Securities, Preferred Shares or Depositary Shares.
(8) In U.S. dollars or the equivalent thereof in one or more foreign
currencies or composite currencies.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined prospectus relating also
to Debt Securities, Preferred Stock, Depositary Shares, Common Stock and
Securities Warrants registered on Form S-3, Registration Statement No. 33-
61045, previously filed by the Registrant (formerly Norwest Corporation) and
declared effective on September 1, 1995 and on Form S-3, Registration
Statement No. 33-50435, previously filed by the Registrant (formerly Norwest
Corporation) and declared effective on October 28, 1993. This Registration
Statement, which is a new Registration Statement, also constitutes Post-
Effective Amendment No. 1 to each of Registration Statement No. 33-61045 and
Registration Statement No. 33-50435, and such Post-Effective Amendments No. 1
shall hereafter become effective concurrently with the effectiveness of this
Registration Statement.
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<PAGE>
PROSPECTUS
WELLS FARGO & COMPANY
420 Montgomery Street
San Francisco, California 94163
1-800-411-4932
$10,150,000,000
Debt Securities
Preferred Stock
Depositary Shares
Securities Warrants
----------------------------
We may also issue common stock upon conversion, exchange or exercise of any of
the securities listed above. We will provide the specific terms of these
securities in supplements to this prospectus. You should read this prospectus
and the applicable supplement carefully before you invest.
----------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
----------------------------
These securities are our unsecured obligations and are not savings accounts,
deposits or other obligations of any of our bank or nonbank subsidiaries and
are not insured by the Federal Deposit Insurance Corporation, the Bank
Insurance Fund or any other governmental agency.
----------------------------
This prospectus is dated June , 1999
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf process, we may sell debt securities, preferred stock,
depositary shares and securities warrants in one or more offerings up to a
total dollar amount of $10,150,000,000. We may sell these securities either
separately or in units. We may also issue common stock upon conversion,
exchange or exercise of any of the securities mentioned above.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. Such prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus and the
applicable prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus, including the
exhibits to the registration statement, contains additional information about
us and the securities offered under this prospectus. That registration
statement can be read at the Securities and Exchange Commission, or SEC, web
site or at the SEC offices mentioned under the heading "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at
450 Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center,
Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of
the documents at prescribed rates by writing to the Public Reference Section of
the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC
at 1-800-SEC-0330 for further information on the operation of the public
reference facilities. Our SEC filings are also available at the offices of the
New York Stock Exchange and Chicago Stock Exchange. For further information on
obtaining copies of our public filings at the New York Stock Exchange, you
should call (212) 656-5060, and for further information on obtaining copies of
our public filings at the Chicago Stock Exchange, you should call (312) 663-
2423.
We "incorporate by reference" into this prospectus the information we
file with the SEC, which means that we can disclose important information to
you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus. Some information contained
in this prospectus updates the information incorporated by reference, and
information that we file subsequently with the SEC will automatically update
this prospectus. In other words, in the case of a conflict or inconsistency
between information set forth in this prospectus and information incorporated
by reference into this prospectus, you should rely on the information contained
in the document that was filed later. We incorporate by reference the documents
listed below and any filings we make with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange
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Act of 1934 after the initial filing of the registration statement that
contains this prospectus and prior to the time that we sell all the securities
offered by this prospectus:
. Annual Report on Form 10-K for the year ended December 31, 1998,
including information specifically incorporated by reference into our
Form 10-K from our 1998 Annual Report to Stockholders and our
definitive Notice and Proxy Statement for our 1999 Annual Meeting of
Stockholders;
. Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
. Current Reports on Form 8-K filed January 29, 1999, April 21, 1999
and April 28, 1999;
. the description of our preferred share purchase rights contained in
the Registration Statement on Form 8-A dated October 21, 1998; and
. the description of our common stock contained in the Current Report
on Form 8-K filed October 14, 1997.
You may request a copy of these filings, other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing, at no cost, by writing to or telephoning us at the following address:
Laurel A. Holschuh
Corporate Secretary
Wells Fargo & Company
Norwest Center, 17th Floor
Sixth and Marquette
Minneapolis, Minnesota 55479
Phone: (612) 667-8655
You should rely only on the information incorporated by reference or
presented in this prospectus or the applicable prospectus supplement. Neither
we, nor any underwriters or agents, have authorized anyone else to provide you
with different information. We may only use this prospectus to sell securities
if it is accompanied by a prospectus supplement. We are only offering these
securities in states where the offer is permitted. You should not assume that
the information in this prospectus or the applicable prospectus supplement is
accurate as of any date other than the dates on the front of those documents.
3
<PAGE>
THE COMPANY
Wells Fargo & Company, formerly Norwest Corporation, is a diversified
financial services company registered under the Bank Holding Company Act of
1956.
We provide retail, commercial and corporate banking services through our
banks located in Arizona, California, Colorado, Idaho, Illinois, Indiana, Iowa,
Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oregon,
South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming. We provide
additional financial services through subsidiaries engaged in wholesale
banking, mortgage banking, consumer finance, equipment leasing, agricultural
finance, commercial finance, securities brokerage and investment banking,
insurance agency services, computer and data processing services, trust
services, mortgage-backed securities processing and venture capital investment.
Our significant subsidiaries are Norwest Bank Minnesota, N.A. and its
consolidated subsidiaries and WFC Holdings Corporation and its consolidated
subsidiaries, including its principal subsidiary, Wells Fargo Bank, N.A.
On November 2, 1998, we changed our name to Wells Fargo & Company
following the merger of the former Wells Fargo & Company into one of our
wholly-owned subsidiaries. At March 31, 1999, we had $201 billion in assets,
seventh largest among U.S. bank holding companies.
We are a separate and distinct legal entity from our banking and other
subsidiaries. Our principal source of funds to pay dividends on our common and
preferred stock and debt service on our debt is dividends from our
subsidiaries. Various federal and state statutes and regulations limit the
amount of dividends that our banking and other subsidiaries may pay to us
without regulatory approval.
When we refer to "our company," "we," "our" and "us" in this prospectus
under the headings "The Company" and "Ratios of Earnings to Fixed Charges and
to Fixed Charges and Preferred Stock Dividends," we mean Wells Fargo & Company
and its subsidiaries unless the context indicates otherwise. When such terms
are used elsewhere in this prospectus, we refer only to Wells Fargo & Company
unless the context indicates otherwise.
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USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net
proceeds from the sale of the offered securities will be added to our general
funds and will be available for general corporate purposes, including:
. investments in or advances to our existing or future subsidiaries;
. repayment of obligations that have matured; and
. reducing our outstanding commercial paper and other debt.
Until the net proceeds have been used, they will be invested in short-term
marketable securities.
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RATIOS OF EARNINGS TO FIXED CHARGES AND TO FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
QUARTER ENDED
FISCAL YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------------- -------------
1994 1995 1996 1997 1998 1998 1999
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges:
Excluding interest on
deposits..................... 3.32x 2.73 2.98 3.10 2.56 3.22 3.58
Including interest on
deposits..................... 1.92x 1.80 1.78 1.81 1.63 1.88 2.10
Ratio of Earnings to Fixed
Charges and
Preferred Stock Dividends:
Excluding interest on
deposits..................... 3.02x 2.55 2.77 2.99 2.49 3.12 3.49
Including interest on
deposits..................... 1.85x 1.74 1.73 1.79 1.61 1.85 2.08
</TABLE>
. The ratio of earnings to fixed charges is calculated as follows:
(income before income taxes) + (fixed charges) - (capitalized interest)
(fixed charges)
. The ratio of earnings to fixed charges and preferred stock dividends is
calculated as follows:
(income before income taxes) + (fixed charges) - (capitalized interest)
(fixed charges) + (pretax earnings required to cover preferred stock dividends)
. Pretax earnings required to cover preferred stock dividends are calculated
as follows:
preferred stock dividends
1 - (our effective income tax rate)
. Fixed charges, excluding interest on deposits, consist of
. interest on short-term borrowings and long-term debt,
. amortization of debt expense,
. capitalized interest, and
. one-third of net rental expense, which we believe is representative of
the interest factor.
. Fixed charges, including interest on deposits, consist of all of the items
listed immediately above plus interest on deposits.
We have included these computations in compliance with SEC regulations.
However, we believe that the fixed charge ratios are not meaningful measures
for our business due to two factors. First, even if our net income did not
change, our ratios would decline if the proportion of our income that is tax-
exempt increased. Conversely, our ratios would increase if the proportion of
our income that is tax-exempt decreased. Second, even if our net income did not
change, our ratios would decline if our interest income and interest expense
increased by the same amount due to an increase in the level of interest rates.
Conversely, our ratios would increase if our interest income and interest
expense decreased by the same amount due to a decrease in the level of interest
rates.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of our debt
securities, which could be senior debt securities or subordinated debt
securities. The prospectus supplement will describe the specific terms of the
debt securities offered through that prospectus supplement and any general
terms outlined in this section that will not apply to those debt securities.
The senior debt securities will be issued under a senior indenture
between us and the senior trustee named in the applicable prospectus supplement
and the subordinated debt securities will be issued under a subordinated
indenture between us and the subordinated trustee named in the applicable
prospectus supplement.
We have summarized the material terms and provisions of the indentures in
this section. We have also filed the form of each of the indentures as exhibits
to the registration statement. You should read the applicable indenture for
additional information before you buy any debt securities. The summary that
follows includes references to section numbers of the indentures so that you
can more easily locate these provisions.
GENERAL
The debt securities will be our direct unsecured obligations. Neither of
the indentures limits the amount of debt securities that we may issue. Both
indentures permit us to issue debt securities from time to time and debt
securities issued under an indenture will be issued as part of a series that
has been established by us under such indenture. (Section 301)
The senior debt securities will be unsecured and will rank equally with
all of our other Senior Debt, as defined under "--Subordination" below. The
subordinated debt securities will be unsecured and will rank equally with all
of our other subordinated debt and, together with such other subordinated debt,
will be subordinated to all of our existing and future Senior Debt. See "--
Subordination" below.
The debt securities are our unsecured senior or subordinated debt
securities, as the case may be, but our assets consist primarily of equity in
our subsidiaries. As a result, our ability to make payments on our debt
securities depends on our receipt of dividends, loan payments and other funds
from our subsidiaries. In addition, if any of our subsidiaries becomes
insolvent, the direct creditors of that subsidiary will have a prior claim on
its assets. Our rights and the rights of our creditors, including your rights
as an owner of our debt securities, will be subject to that prior claim, unless
we are also a direct creditor of that subsidiary. This subordination of
creditors of a parent company to prior claims of creditors of its subsidiaries
is commonly referred to as structural subordination.
A prospectus supplement relating to a series of debt securities being
offered will include specific terms relating to the offering. (Section 301)
These terms will include some or all of the following:
. the title and type of the debt securities;
. any limit on the total principal amount of the debt securities of
that series;
. the price at which the debt securities will be issued;
. the date or dates on which the principal of and any premium on the
debt securities will be payable;
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. the maturity date or dates of the debt securities or the method by
which those dates can be determined;
. if the debt securities will bear interest:
. the interest rate on the debt securities or the method by which
the interest rate may be determined;
. the date from which interest will accrue;
. the record and interest payment dates for the debt securities;
. the first interest payment date; and
. any circumstances under which we may defer interest payments;
. the place or places where:
. we can make payments on the debt securities;
. the debt securities can be surrendered for registration of
transfer or exchange; and
. notices and demands can be given to us relating to the debt
securities and under the applicable indenture;
. any optional redemption provisions that would permit us or the
holders of debt securities to elect redemption of the debt securities
before their final maturity;
. any sinking fund provisions that would obligate us to redeem the debt
securities before their final maturity;
. whether the subordinated debt securities will be convertible into
shares of common stock, shares of preferred stock or depositary
shares and, if so, the terms and conditions of any such conversion,
and, if convertible into shares of preferred stock or depositary
shares, the terms of such preferred stock or depositary shares;
. if the debt securities will be issued in bearer form, the terms and
provisions contained in the bearer securities and in the applicable
indenture specifically relating to the bearer securities;
. the currency or currencies in which the debt securities will be
denominated and payable, if other than U.S. dollars and, if a
composite currency, any special provisions relating thereto;
. any circumstances under which the debt securities may be paid in a
currency other than the currency in which the debt securities are
denominated and any provisions relating thereto;
. whether the provisions described below under the heading "--
Defeasance" apply to the debt securities;
. any events of default which will apply to the debt securities in
addition to those contained in the applicable indenture;
. any additions or changes to the covenants contained in the applicable
indenture and the ability, if any, of the holders to waive our
compliance with those additional or changed covenants;
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. whether all or part of the debt securities will be issued in whole or
in part as temporary or permanent global securities and, if so, the
depositary for those global securities and a description of any book-
entry procedures relating to the global securities--a "global
security" is a debt security that we issue in accordance with the
applicable indenture to represent all or part of a series of debt
securities;
. if we issue temporary global securities, any special provisions
dealing with the payment of interest and any terms relating to the
ability to exchange interests in a temporary global security for
interests in a permanent global security or for definitive debt
securities;
. the identity of the security registrar and paying agent for the debt
securities if other than the applicable trustee;
. any special tax implications of the debt securities;
. any special provisions relating to the payment of any additional
amounts on the debt securities;
. the terms of any securities being offered together with or separately
from the debt securities; and
. any other terms of the debt securities.
When we use the term "holder" in this prospectus with respect to a registered
debt security, we mean the person in whose name such debt security is
registered in the security register. (Section 101)
PAYMENT; EXCHANGE; TRANSFER
We will designate a place of payment where you can receive payment of
the principal of and any premium and interest on the debt securities. Even
though we will designate a place of payment, we may elect to pay any interest
on the debt securities by mailing a check to the person listed as the owner of
the debt securities in the security register or by wire transfer to an account
designated by that person in writing not less than ten days before the date of
the interest payment. Unless we state otherwise in the applicable prospectus
supplement, we will pay interest on a debt security:
. on an interest payment date, to the person in whose name that debt
security is registered at the close of business on the record date
relating to that interest payment date; and
. on the date of maturity or earlier redemption or repayment, to the
person who surrenders the debt security at the office of our
appointed paying agent. (Sections 307, 1002)
Any money that we pay to a paying agent for the purpose of making
payments on the debt securities and that remain unclaimed two years after the
payments were due will, at our request, be returned to us and after that time
any holder of a debt security can only look to us for the payments on the debt
security. (Section 1003)
Any debt securities of a series can be exchanged for other debt
securities of that series so long as the other debt securities are denominated
in authorized denominations and have the same aggregate principal amount and
same terms as the debt securities that were surrendered for exchange. The debt
securities may be presented for registration of transfer, duly endorsed or
accompanied by a
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satisfactory written instrument of transfer, at the office or agency maintained
by us for that purpose in a place of payment. There will be no service charge
for any registration of transfer or exchange of the debt securities, but we may
require you to pay any tax or other governmental charge payable in connection
with a transfer or exchange of the debt securities. (Sections 305, 1002) If the
applicable prospectus supplement refers to any office or agency, in addition to
the security registrar, initially designated by us where you can surrender the
debt securities for registration of transfer or exchange, we may at any time
rescind the designation of any such office or agency or approve a change in the
location. However, we will be required to maintain an office or agency in each
place of payment for that series. (Section 1002)
DENOMINATIONS
Unless we state otherwise in the applicable prospectus supplement, the
debt securities will be issued only in registered form, without coupons, in
denominations of $1,000 each or multiples of $1,000.
BEARER DEBT SECURITIES
If we ever issue bearer debt securities, the applicable prospectus
supplement will describe all of the special terms and provisions of debt
securities in bearer form, and the extent to which those special terms and
provisions are different from the terms and provisions which are described in
this prospectus, which generally apply to debt securities in registered form,
and will summarize provisions of the applicable indenture that relate
specifically to bearer debt securities.
ORIGINAL ISSUE DISCOUNT
Debt securities may be issued under the indentures as original issue
discount securities and sold at a substantial discount below their stated
principal amount. If a debt security is an original issue discount security,
that means that an amount less than the principal amount of the debt security
will be due and payable upon a declaration of acceleration of the maturity of
the debt security under the applicable indenture. (Section 101) The applicable
prospectus supplement will describe the federal income tax consequences and
other special factors you should consider before purchasing any original issue
discount securities.
COVENANTS CONTAINED IN INDENTURES
Except as otherwise set forth in the next sentence, the senior indenture:
. prohibits us and our subsidiaries from selling, pledging, assigning
or otherwise disposing of shares of capital stock, or securities
convertible into capital stock, of any Principal Subsidiary Bank or
of any subsidiary owning, directly or indirectly, any capital stock
of a Principal Subsidiary Bank; and
. prohibits any Principal Subsidiary Bank from issuing any shares of
its capital stock or securities convertible into its capital stock.
This restriction does not apply to:
. sales, pledges, assignments or other dispositions or issuances of
directors' qualifying shares;
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. sales, pledges, assignments or other dispositions or issuances, so
long as, after giving effect to the disposition and to the issuance
of any shares issuable upon conversion or exchange of securities
convertible or exchangeable into capital stock, we would own directly
or through one or more of our subsidiaries not less than 80% of the
shares of each class of capital stock of the applicable Principal
Subsidiary Bank;
. sales, pledges, assignments or other dispositions or issuances made
in compliance with an order or direction of a court or regulatory
authority of competent jurisdiction; or
. sales of capital stock by any Principal Subsidiary Bank to its
stockholders so long as before the sale we own directly or indirectly
shares of the same class and the sale does not reduce the percentage
of the shares of that class of capital stock owned by us. (Section
1005 of the senior indenture)
When we use the term "subsidiary" in this section, we mean any
corporation of which we own more than 50% of the outstanding shares of voting
stock, except for directors' qualifying shares, directly or through one or more
of our other subsidiaries. Voting stock is stock that is entitled in the
ordinary course to vote for the election of a majority of the directors of a
corporation and does not include stock that is entitled to so vote only as a
result of the happening of certain events.
When we use the term "Principal Subsidiary Bank" above, we mean any
commercial bank or trust company organized in the United States under Federal
or state law of which we own at least a majority of the shares of voting stock
directly or through one or more of our subsidiaries if such commercial bank or
trust company has total assets, as set forth in its most recent statement of
condition, equal to more than 10% of our total consolidated assets, as set
forth in our most recent financial statements filed with the SEC under the
Exchange Act. (Section 101 of the senior indenture) As of the date hereof, our
Principal Subsidiary Banks are Norwest Bank Minnesota, National Association,
and Wells Fargo Bank, National Association.
The subordinated indenture does not contain the restriction described
above.
Neither of the indentures contains restrictions on our ability to:
. incur, assume or become liable for any type of debt or other
obligation;
. create liens on our property for any purpose; or
. pay dividends or make distributions on our capital stock or
repurchase or redeem our capital stock.
The indentures do not require the maintenance of any financial ratios or
specified levels of net worth or liquidity. In addition, the indentures do not
contain any provisions which would require us to repurchase or redeem or modify
the terms of any of the debt securities upon a change of control or other event
involving us which may adversely affect the creditworthiness of the debt
securities.
CONSOLIDATION, MERGER OR SALE
Each of the indentures generally permits a consolidation or merger
between us and another entity. They also permit the sale or transfer by us of
all or substantially all of our property and assets. These transactions are
permitted if:
. the resulting or acquiring entity, if other than us, is organized and
existing under the laws of a domestic jurisdiction and assumes all of
our responsibilities and liabilities
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under the applicable indenture, including the payment of all amounts
due on the debt securities and performance of the covenants in the
applicable indenture; and
. immediately after the transaction, and giving effect to the
transaction, no event of default under the applicable indenture
exists. (Section 801)
If we consolidate or merge with or into any other entity or sell or lease
all or substantially all of our assets according to the terms and conditions of
the indentures, the resulting or acquiring entity will be substituted for us in
the indentures with the same effect as if it had been an original party to the
indentures. As a result, such successor entity may exercise our rights and
powers under the indentures, in our name and, except in the case of a lease of
all or substantially all of our properties, we will be released from all our
liabilities and obligations under the indentures and under the debt securities.
(Section 802)
MODIFICATION AND WAIVER
Under each of the indentures, certain of our rights and obligations and
certain of the rights of holders of the debt securities may be modified or
amended with the consent of the holders of at least a majority of the aggregate
principal amount of the outstanding debt securities of all series of debt
securities affected by the modification or amendment, acting as one class.
However, the following modifications and amendments will not be effective
against any holder without its consent:
. a change in the stated maturity date of any payment of principal or
interest;
. a reduction in payments due on the debt securities;
. a change in the place of payment or currency in which any payment on
the debt securities is payable;
. a limitation of a holder's right to sue us for the enforcement of
payments due on the debt securities;
. a reduction in the percentage of outstanding debt securities required
to consent to a modification or amendment of the applicable indenture
or required to consent to a waiver of compliance with certain
provisions of the applicable indenture or certain defaults under the
applicable indenture;
. a reduction in the requirements contained in the applicable indenture
for quorum or voting;
. a limitation of a holder's right, if any, to repayment of debt
securities at the holder's option;
. in the case of subordinated debt securities convertible into common
stock, a limitation of any right to convert the subordinated debt
securities; and
. a modification of any of the foregoing requirements contained in the
applicable indenture. (Section 902)
Under each of the indentures, the holders of at least a majority of the
aggregate principal amount of the outstanding debt securities of all series of
debt securities affected by a particular covenant or condition, acting as one
class, may, on behalf of all holders of such series of debt
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securities, waive compliance by us with any covenant or condition contained in
the applicable indenture unless we specify that such covenant or condition
cannot be so waived at the time we establish the series. The senior indenture
provides that compliance with the covenant relating to Principal Subsidiary
Banks described above under "--Covenants Contained in Indentures" can be waived
in this manner. (Section 1008 of the senior indenture, Section 1005 of the
subordinated indenture)
In addition, under each of the indentures, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series of
debt securities may, on behalf of all holders of that series, waive any past
default under the applicable indenture, except:
. a default in the payment of the principal of or any premium or
interest on any debt securities of that series; or
. a default under any provision of the applicable indenture which
itself cannot be modified or amended without the consent of the
holders of each outstanding debt security of that series. (Section
513)
EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, an
"event of default," when used in the senior indenture with respect to any
series of senior debt securities, means any of the following:
. failure to pay interest on any senior debt security of that series
for 30 days after the payment is due;
. failure to pay the principal of or any premium on any senior debt
security of that series when due;
. failure to deposit any sinking fund payment on senior debt securities
of that series when due;
. failure to perform any of the covenants regarding capital stock of
Principal Subsidiary Banks described above under "--Covenants
Contained in Indentures";
. failure to perform any other covenant in the senior indenture that
applies to senior debt securities of that series for 90 days after we
have received written notice of the failure to perform in the manner
specified in the senior indenture;
. certain events in bankruptcy, insolvency or reorganization; or
. any other event of default that may be specified for the senior debt
securities of that series when that series is created. (Section 501
of the senior indenture)
Unless otherwise specified in the applicable prospectus supplement, an
"event of default," when used in the subordinated indenture with respect to any
series of subordinated debt securities, means any of the following:
. certain events in bankruptcy, insolvency or reorganization; or
. any other event of default that may be specified for the subordinated
debt securities of that series when that series is created. (Section
501 of the subordinated indenture)
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of the series
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may declare the entire principal of all the debt securities of that series to
be due and payable immediately. If such a declaration occurs, the holders of a
majority of the aggregate principal amount of the outstanding debt securities
of that series can, subject to conditions, rescind the declaration. (Sections
502, 513) Unless we state otherwise in the applicable prospectus supplement,
the holders of subordinated debt securities will not have the right to
accelerate the payment of principal of the subordinated debt securities as a
result of our failure to perform any covenant or agreement contained in the
subordinated debt securities or the subordinated indenture.
The prospectus supplement relating to a series of debt securities which
are original issue discount securities will describe the particular provisions
that relate to the acceleration of maturity of a portion of the principal
amount of the series when an event of default occurs and continues.
Each of the indentures requires us to file an officers' certificate with
the applicable trustee each year that states, to the knowledge of the
certifying officer, no defaults exist under the terms of the applicable
indenture. (Section 1007 of the senior indenture, Section 1004 of the
subordinated indenture). The trustee may withhold notice to the holders of debt
securities of any default, except defaults in the payment of principal,
premium, interest or any sinking fund installment, if it considers the
withholding of notice to be in the best interests of the holders. For purposes
of this paragraph, "default" means any event which is, or after notice or lapse
of time or both would become, an event of default under the applicable
indenture with respect to the debt securities of the applicable series.
(Section 602)
Other than its duties in the case of a default, a trustee is not
obligated to exercise any of its rights or powers under the applicable
indenture at the request, order or direction of any holders, unless the holders
offer that trustee reasonable indemnification. (Sections 601, 603) If
reasonable indemnification is provided, then, subject to other rights of the
trustee, the holders of a majority in principal amount of the outstanding debt
securities of any series may, with respect to the debt securities of that
series, direct the time, method and place of:
. conducting any proceeding for any remedy available to the trustee; or
. exercising any trust or power conferred upon the trustee. (Sections
512, 603)
The holder of a debt security of any series will have the right to begin
any proceeding with respect to the applicable indenture or for any remedy only
if:
. the holder has previously given the trustee written notice of a
continuing event of default with respect to that series;
. the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written
request of, and offered reasonable indemnification to, the trustee to
begin such proceeding;
. the trustee has not started such proceeding within 60 days after
receiving the request; and
. the trustee has not received directions inconsistent with such
request from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series during those 60
days. (Section 507)
However, the holder of any senior debt security will have an absolute right to
receive payment of principal of and any premium and interest on the senior debt
security when due and to institute suit to enforce this payment, and the holder
of any subordinated debt security will have, subject to the
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subordination provisions discussed below under "--Subordination," the absolute
right to receive payment of principal of and any premium and interest on the
subordinated debt security when due in accordance with the subordinated
indenture and to institute suit to enforce the payment. (Section 508)
DEFEASANCE
DEFEASANCE AND DISCHARGE. At the time that we establish a series of debt
securities under the applicable indenture, we can provide that the debt
securities of that series are subject to the defeasance and discharge
provisions of that indenture. If we so provide, we will be discharged from our
obligations on the debt securities of that series if:
. we deposit with the applicable trustee, in trust, sufficient money
or, if the debt securities of that series are denominated and payable
in U.S. dollars only, Eligible Instruments, to pay the principal, any
interest, any premium and any other sums due on the debt securities
of that series, such as sinking fund payments, on the dates the
payments are due under the applicable indenture and the terms of the
debt securities;
. we deliver to the applicable trustee an opinion of counsel that
states that the holders of the debt securities of that series will
not recognize income, gain or loss for federal income tax purposes as
a result of the deposit and will be subject to federal income tax on
the same amounts and in the same manner and at the same times as
would have been the case if no deposit had been made; and
. if the debt securities of that series are listed on any domestic or
foreign securities exchange, the debt securities will not be delisted
as a result of the deposit. (Section 403)
When we use the term "Eligible Instruments" in this section, we mean
monetary assets, money market instruments and securities that are payable in
dollars only and essentially risk free as to collection of principal and
interest, including:
. direct obligations of the United States backed by the full faith and
credit of the United States; or
. any obligation of a person controlled or supervised by and acting as
an agency or instrumentality of the United States if the timely
payment of the obligation is unconditionally guaranteed as a full
faith and credit obligation by the United States. (Section 101)
In the event that we deposit money and/or Eligible Instruments in trust
and discharge our obligations under a series of debt securities as described
above, then:
. the applicable indenture, including, in the case of subordinated debt
securities, the subordination provisions contained in the
subordinated indenture, will no longer apply to the debt securities
of that series; however, certain obligations to compensate, reimburse
and indemnify the trustee, to register the transfer and exchange of
debt securities, to replace lost, stolen or mutilated debt
securities, to maintain paying agencies and the trust funds and to
pay additional amounts, if any, required as a result of U.S.
withholding taxes imposed on payments to non-U.S. persons will
continue to apply; and
. holders of debt securities of that series can only look to the trust
fund for payment of principal, any premium and any interest on the
debt securities of that series. (Section 403)
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DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. At the
time that we establish a series of debt securities under the applicable
indenture, we can provide that the debt securities of that series are subject
to the covenant defeasance provisions of that indenture. If we so provide and
we make the deposit and deliver the opinion of counsel described above in this
section under the heading "--Defeasance and Discharge" we will not have to
comply with the following restrictive covenants contained in the applicable
indenture:
. Restrictions Upon Sale or Issuance of Capital Stock of Certain
Subsidiary Banks (Section 1005 of the senior indenture) discussed
above under "--Covenants Contained in Indentures"; and
. any other covenant we designate when we establish the series of debt
securities.
In the event of a covenant defeasance, our obligations under the applicable
indenture and the debt securities, other than with respect to the covenants
specifically referred to above, will remain in effect. (Section 1501 of the
senior indenture, Section 1701 of the subordinated indenture)
If we exercise our option not to comply with the covenants listed above
and the debt securities of the series become immediately due and payable
because an event of default has occurred, other than as a result of an event of
default specifically referred to above, the amount of money and/or Eligible
Instruments on deposit with the applicable trustee will be sufficient to pay
the principal, any interest, any premium and any other sums, due on the debt
securities of that series, such as sinking fund payments, on the date the
payments are due under the applicable indenture and the terms of the debt
securities, but may not be sufficient to pay amounts due at the time of
acceleration. However, we would remain liable for the balance of the payments.
(Section 1501 of the senior indenture, Section 1701 of the subordinated
indenture)
SUBORDINATION
The subordinated debt securities will be subordinate to all of our
existing and future Senior Debt, as defined below. Our Senior Debt includes the
senior debt securities and means
. any of our indebtedness for borrowed or purchased money, whether or
not evidenced by bonds, debentures, notes or other written
instruments,
. our obligations under letters of credit,
. any of our indebtedness or other obligations with respect to
commodity contracts, interest rate and currency swap agreements, cap,
floor and collar agreements, currency spot and forward contracts, and
other similar agreements or arrangements designed to protect against
fluctuations in currency exchange or interest rates, and
. any guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or
other similar contingent obligations in respect of obligations of
others of a type described above, whether or not such obligation is
classified as a liability on a balance sheet prepared in accordance
with generally accepted accounting principles,
whether outstanding on the date of execution of the subordinated indenture or
thereafter incurred, other than obligations expressly on a parity with or
junior to the subordinated debt securities. As of March 31, 1999, we had
approximately $18.3 billion of Senior Debt outstanding.
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If certain events in bankruptcy, insolvency or reorganization occur, we
will first pay all Senior Debt, including any interest accrued after the events
occur, in full before we make any payment or distribution, whether in cash,
securities or other property, on account of the principal of or interest on the
subordinated debt securities. In such an event, we will pay or deliver directly
to the holders of Senior Debt any payment or distribution otherwise payable or
deliverable to holders of the subordinated debt securities. We will make the
payments to the holders of Senior Debt according to priorities existing among
those holders until we have paid all Senior Debt, including accrued interest,
in full. Notwithstanding the subordination provisions discussed in this
paragraph, we may make payments or distributions on the subordinated debt
securities so long as:
. the payments or distributions consist of securities issued by us or
another company in connection with a plan or reorganization or
readjustment; and
. payment on those securities is subordinate to outstanding Senior Debt
and any securities issued with respect to senior Debt under such plan
of reorganization or readjustment at least to the same extent
provided in the subordination provisions of the subordinated debt
securities. (Section 1801 of the subordinated indenture)
If such events in bankruptcy, insolvency or reorganization occur after we
have paid in full all amounts owed on Senior Debt:
. the holders of subordinated debt securities,
. together with the holders of any of our other obligations ranking
equal with those subordinated debt securities,
will be entitled to receive from our remaining assets any principal, premium or
interest due at that time on the subordinated debt securities and such other
obligations before we make any payment or other distribution on account of any
of our capital stock or obligations ranking junior to those subordinated debt
securities.
If we violate the subordinated indenture by making a payment or
distribution to holders of the subordinated debt securities before we have paid
all the Senior Debt in full, then such holders of the subordinated debt
securities will be deemed to have received the payments or distributions in
trust for the benefit of, and will have to pay or transfer the payments or
distributions to, the holders of the Senior Debt outstanding at the time. The
payment or transfer to the holders of the Senior Debt will be made according to
the priorities existing among those holders. Notwithstanding the subordination
provisions discussed in this paragraph, holders of subordinated debt securities
will not be required to pay, or transfer payments or distributions to, holders
of Senior Debt so long as:
. the payments or distributions consist of securities issued by us or
another company in connection with a plan of reorganization or
readjustment; and
. payment on those securities is subordinate to outstanding Senior Debt
and any securities issued with respect to Senior Debt under such plan
of reorganization or readjustment at least to the same extent
provided in the subordination provisions of those subordinated debt
securities. (Section 1801 of the subordinated indenture)
Because of the subordination, if we become insolvent, holders of Senior
Debt may receive more, ratably, and holders of the subordinated debt securities
having a claim pursuant to those securities may receive less, ratably, than our
other creditors. This type of subordination will not
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prevent an event of default from occurring under the subordinated indenture in
connection with the subordinated debt securities.
We may modify or amend the subordinated indenture as provided under "--
Modification and Waiver" above. However, the modification or amendment may not,
without the consent of the holders of all Senior Debt outstanding, modify any
of the provisions of the applicable indenture relating to the subordination of
the subordinated debt securities in a manner that would adversely affect the
holders of Senior Debt. (Section 902 of the subordinated indenture)
CONVERSION AND EXCHANGE
If any offered debt securities are convertible into preferred stock,
depositary shares or common stock at the option of the holders or exchangeable
for preferred stock, depositary shares or common stock at our option, the
prospectus supplement relating to those debt securities will include the terms
and conditions governing any conversions and exchanges.
DESCRIPTION OF PREFERRED STOCK
This section describes the general terms and provisions of our preferred
stock and preference stock that may be offered by this prospectus. Unless we
specifically note otherwise, we will generally refer to our preferred stock and
preference stock collectively in this prospectus as preferred stock. The
prospectus supplement will describe the specific terms of the series of the
preferred stock offered through that prospectus supplement and any general
terms outlined in this section that will not apply to that series of preferred
stock.
We have summarized the material terms and provisions of the preferred
stock in this section. We have also filed our restated certificate of
incorporation, as amended, and the form of certificate of designations of
powers, preferences and rights of preferred stock, which we will refer to as
the "certificate of designation," as exhibits to the registration statement.
You should read our restated certificate of incorporation and the certificate
of designations relating to the applicable series of the preferred stock for
additional information before you buy any preferred stock.
GENERAL
Pursuant to our restated certificate of incorporation, as amended, our
board of directors has the authority, without further stockholder action, to
issue a maximum of 24,000,000 shares of preferred stock, consisting of a
maximum of 20,000,000 shares of preferred stock and a maximum of 4,000,000
shares of preference stock, including shares issued or reserved for issuance.
As of March 31, 1999 we had issued 6,617,480 shares of preferred stock, of
which 6,592,480 shares were outstanding and 25,000 shares were held by one of
our subsidiaries. As of March 31, 1999, there were no shares of preference
stock outstanding. The board of directors has the authority to determine or fix
the following terms with respect to shares of any series of preferred stock:
. the number of shares and designation or title of the shares;
. dividend rights;
. whether and upon what terms the shares will be redeemable;
. the rights of the holders upon our dissolution or upon the
distribution of our assets;
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. whether and upon what terms the shares will have a purchase,
retirement or sinking fund;
. whether and upon what terms the shares will be convertible;
. the voting rights, if any, which will apply; provided, however, that
holders of preference stock will not be entitled to more than 1 vote
per share; and
. any other preferences, rights, limitations or restrictions of the
series.
If we purchase, redeem or convert shares of preferred stock, we will retire
and cancel them and restore them to the status of authorized but unissued
shares of preferred stock or preference stock, as the case may be. Those
shares will not be part of any particular series of preferred stock and may be
reissued by us.
As described under "Description of Depositary Shares" below, we may
elect to offer depositary shares represented by depositary receipts. If we so
elect, each depositary share will represent a fractional interest, to be
specified in the applicable prospectus supplement, in a share of preferred
stock. If we issue depositary shares representing interests in preferred
stock, those shares of preferred stock will be deposited with a depositary.
Under regulations of the Federal Reserve Board, our preferred stock is a
voting security at all times for purposes of the Bank Holding Company Act
because the holders of our preferred stock are entitled to vote for the
election of directors if we do not pay preferred stock dividends. Any holder
of more than 25% of a class of our voting securities, or less than 25% if the
holder otherwise exercises a "controlling influence" over us, would be
regulated as a bank holding company under the Bank Holding Company Act. In
addition, an existing bank holding company would need to obtain the Federal
Reserve Board's approval before acquiring 5% or more of any class of our
voting securities. Separately, under the Change in Bank Control Act of 1978,
any "person," including an individual or company other than a bank holding
company, may need to obtain the Federal Reserve Board's approval before
acquiring 10% or more of any class of our voting securities. All series of our
preferred stock are considered a single "class of voting shares" under the
Bank Holding Company Act because they generally vote together on all matters
as described below under "--Voting Rights."
The preferred stock will have the dividend, liquidation, redemption,
voting and conversion rights described in this section unless the applicable
prospectus supplement provides otherwise. You should read the prospectus
supplement relating to the particular series of the preferred stock it offers
for specific terms, including:
. the title, stated value and liquidation preference of the preferred
stock and the number of shares offered;
. the initial public offering price at which we will issue the
preferred stock;
. the dividend rate or rates, or method of calculation of dividends,
the dividend periods, the dates on which dividends will be payable
and whether the dividends will be cumulative or noncumulative and, if
cumulative, the dates from which the dividends will start to
cumulate;
. any redemption or sinking fund provisions;
. any conversion provisions;
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. whether we have elected to offer depositary shares as described under
"Description of Depositary Shares" below; and
. any additional dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions.
When we issue shares of preferred stock, they will be fully paid and
nonassessable. This means you will have paid the full purchase price for your
shares of preferred stock and you will not be assessed any additional amount
for your stock. Unless the applicable prospectus supplement specifies
otherwise:
. each series of preferred stock will rank equally in all respects with
the outstanding shares of preferred stock and each other series of
preferred stock offered under this prospectus;
. each series of preferred stock will rank senior to our series C
junior participating preferred stock described below under the
heading "Description of Common Stock--Rights Agreement";
. the preferred stock will have no preemptive rights to subscribe for
any additional securities which we may issue in the future, which
means that the holders of shares of preferred stock will have no
right, as holders of shares of preferred stock, to buy any portion of
those issued securities; and
. Norwest Bank Minnesota, N.A. will be the transfer agent and registrar
for the preferred stock and any depositary shares.
DIVIDENDS
The holders of the preferred stock of each series will be entitled to
receive cash dividends, if declared by our board of directors or its duly
authorized committee, out of our assets that we can legally use to pay
dividends. The applicable prospectus supplement relating to a particular series
of preferred stock will describe the dividend rates and dates on which
dividends will be payable. The rates may be fixed or variable or both. If the
dividend rate is variable, the applicable prospectus supplement will describe
the formula used to determine the dividend rate for each dividend period. We
will pay dividends to the holders of record as they appear on our stock books
on the record dates fixed by our board of directors or its duly authorized
committee.
We are incorporated in Delaware, and are governed by the Delaware General
Corporation Law. Delaware law allows a corporation to pay dividends only out of
surplus, as determined under Delaware law, or, if there is no surplus, out of
net profits for the fiscal year in which the dividend was declared and for the
preceding fiscal year. However, under Delaware law, we cannot pay dividends out
of net profits if, after we pay the dividend, our capital would be less than
the capital represented by the outstanding stock of all classes having a
preference upon the distribution of our assets.
The applicable prospectus supplement will also state whether the
dividends on any series of the preferred stock are cumulative or noncumulative.
If our board of directors does not declare a dividend payable on a dividend
payment date on any noncumulative series of preferred stock, then the holders
of that series will not be entitled to receive a dividend for that dividend
period and we will not be obligated to pay the dividend for that dividend
period even if our board declares a dividend on that series payable in the
future.
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Our board will not declare and pay a dividend on any of our stock
ranking, as to dividends, equal with or junior to the preferred stock unless
full dividends on the preferred stock have been declared and paid, or declared
and sufficient money is set aside for payment. Until full dividends are paid,
or declared and payment is set aside, on all preferred stock ranking equal as
to dividends, then:
. we will declare any dividends pro rata among the shares of preferred
stock of each series offered under this prospectus and any other
series of preferred stock ranking equal to such series of preferred
stock offered under this prospectus as to dividends, which means that
the dividends we declare per share on each series of such preferred
stock will bear the same relationship to each other that the full
accrued dividends per share on each such series of the preferred
stock bear to each other;
. other than the above-described pro rata dividends, we will not
declare or pay any dividends or declare or make any distributions
upon any security ranking junior to or equal with the preferred stock
offered under this prospectus as to dividends or upon liquidation,
except dividends or distributions paid for with securities ranking
junior to the preferred stock as to dividends and upon liquidation;
and
. we will not redeem, purchase or otherwise acquire, or set aside money
for a sinking fund for, any securities ranking junior to or equal
with the preferred stock offered under this prospectus as to
dividends or upon liquidation, except by conversion into or exchange
for stock junior to the preferred stock as to dividends and upon
liquidation.
We will not owe any interest, or any money in lieu of interest, on any dividend
payment(s) on any series of the preferred stock which may be past due.
REDEMPTION
We may redeem all or part of a series of the preferred stock and that
series may be subject to mandatory redemption under a sinking fund or
otherwise, as described in the applicable prospectus supplement. Redeemed
shares of preferred stock will become authorized but unissued shares of
preferred stock or preference stock, as the case may be, that we may issue in
the future.
If a series of the preferred stock is subject to mandatory redemption,
the applicable prospectus supplement will specify the number of shares that we
will redeem each year and the redemption price. If shares of preferred stock
are redeemed, we will pay all accrued and unpaid dividends on those shares to,
but excluding, the redemption date. The prospectus supplement will also specify
whether the redemption price will be paid in cash or other property. If we are
only permitted to pay the redemption price for a series of preferred stock from
the proceeds of a capital stock issuance, and the proceeds from the issuance
are insufficient or no such issuance has occurred, then the terms of that
series may provide that the preferred stock will automatically and mandatorily
be converted into that capital stock.
If fewer than all of the outstanding shares of any series of the
preferred stock are to be redeemed, our board of directors will determine the
number of shares to be redeemed. We will redeem the shares pro rata from the
holders of record in proportion to the number of shares held by them, with
adjustments to avoid redemption of fractional shares.
Even though the terms of a series of preferred stock may permit
redemption of all or a part of the preferred stock, if any dividends, including
accumulated dividends, on that series are past due:
. we will not redeem any preferred stock of that series unless we
simultaneously redeem all outstanding preferred stock of that series;
and
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. we will not purchase or otherwise acquire any preferred stock of that
series.
The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring preferred stock of that series under a purchase or
exchange offer if we make the offer on the same terms to all holders of that
series.
Unless the applicable prospectus supplement specifies otherwise, we will
give notice of a redemption by mailing a notice to each record holder of the
shares to be redeemed, between 30 to 60 days prior to the date fixed for
redemption, unless we issue depositary shares representing interests in shares
of preferred stock, in which case we will send a notice to the depositary
between 40 to 70 days prior to the date fixed for redemption. We will mail the
notices to the holders' addresses as they appear on our stock records. Each
notice will state:
. the redemption date;
. the number of shares and the series of the preferred stock to be
redeemed;
. the redemption price;
. the place or places where holders can surrender the certificates for
the preferred stock for payment of the redemption price;
. that dividends on the shares to be redeemed will cease to accrue on
the redemption date; and
. the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the preferred stock held by
any holder, we will also specify the number of shares to be redeemed from the
holder in the notice.
If we have given notice of the redemption and have provided the funds for
the payment of the redemption price, then beginning on the redemption date:
. the dividends on the preferred stock called for redemption will no
longer accrue;
. those shares will no longer be considered outstanding; and
. the holders will no longer have any rights as stockholders except to
receive the redemption price.
When the holder properly surrenders the redeemed shares, the redemption price
will be paid out of the funds provided by us. If we redeem fewer than all of
the shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
If a redemption described above is deemed to be a "tender offer" within
the meaning of Rule 14e-1 under the Exchange Act, we will comply with all
applicable provisions of the Exchange Act.
CONVERSION OR EXCHANGE
The applicable prospectus supplement relating to a series of convertible
preferred stock will describe the terms on which shares of that series are
convertible into shares of common stock or a different series of preferred
stock or exchangeable for debt securities.
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RIGHTS UPON LIQUIDATION
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of
shares of each series of the preferred stock offered under this prospectus and
any preferred stock ranking equal to the preferred stock offered under this
prospectus will be entitled to receive:
. liquidation distributions in the amount stated in the applicable
prospectus supplement; and
. all accrued and unpaid dividends, whether or not earned or declared.
We will pay these amounts to the holders of shares of each series of the
preferred stock, and all amounts owing on any preferred stock ranking equally
with such series of preferred stock as to distributions upon liquidation, out
of our assets available for distribution to stockholders before any
distribution is made to holders of any securities ranking junior to the series
of preferred stock upon liquidation.
The sale of all or substantially all of our property and assets, our
merger into or consolidation with any other corporation or the merger of any
other corporation into us will not be considered a dissolution, liquidation or
winding up of our business.
We will make pro rata distributions to the holders of a series of
preferred stock and any other shares of our stock ranking equal to that series
of preferred stock as to distributions upon dissolution, liquidation or winding
up of our business if
. we voluntarily or involuntarily liquidate, dissolve or wind up our
business, and
. we do not have enough assets available for distribution to the
holders of such series of preferred stock and any other shares of our
stock ranking equal with such series as to any such distribution to
pay all amounts to which the holders are entitled.
This means the distributions we pay to the holders of all shares ranking equal
as to distributions upon dissolution, liquidation or winding up of our business
will bear the same relationship to each other that the full distributable
amounts for which those holders are respectively entitled upon dissolution,
liquidation or winding up of our business bear to each other.
After we pay the full amount of the liquidation distribution to which the
holders of a series of the preferred stock are entitled, those holders will
have no right or claim to any of our remaining assets.
VOTING RIGHTS
Except as described in this section or in the applicable prospectus
supplement, or except as expressly required by applicable law, the holders of
the preferred stock will not be entitled to vote. If the holders of a series of
preferred stock are entitled to vote and the applicable prospectus supplement
does not state otherwise, then each share of preferred stock will have one
vote; provided, however, that under no circumstances will the holders of
preference stock have more than one vote per share. As more fully described
under "Description of Depositary Shares" below, if we issue depositary shares
representing fractional interests in a share of preferred stock, the holders of
each depositary share will be entitled to a fraction of a vote.
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For any series of preferred stock having one vote per share, the voting
power of the series, on matters on which holders of that series and holders of
any other series of preferred stock are entitled to vote as a single class,
will solely depend on the total number of shares in that series and not the
aggregate liquidation preference or initial offering price.
If we have not paid dividends on any series of preferred stock offered
under this prospectus for more than 540 days, the holders of that series,
together with the holders of outstanding shares of all other series of
preferred stock ranking equally to that series as to distribution upon
liquidation and having similar voting rights which are then exercisable, will
be entitled to vote for the election of two additional directors at the next
annual meeting of our stockholders. If the holders of a series of preferred
stock are entitled to elect two additional directors, then each share of
preferred stock will have one vote. In such case, the size of our board of
directors will increase by two directors. After we pay the full amount of
dividends to which the holders of the series of preferred stock are entitled,
those holders will no longer have a vote for the election of two additional
directors.
Unless we receive the consent of the holders of an outstanding series of
preferred stock and the outstanding shares of all other series of preferred
stock which
. rank equal with that series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of
our business, and
. have voting rights that are exercisable and that are similar to those
of that series, we will not:
. authorize, create or issue, or increase the authorized or issued
amount of, any class or series of stock ranking prior to that
outstanding preferred stock with respect to payment of dividends
or the distribution of assets upon liquidation, dissolution or
winding up of our business; or
. amend, alter or repeal, whether by merger, consolidation or
otherwise, the provisions of our restated certificate of
incorporation, as amended, or of the resolutions contained in a
certificate of designation creating that series of the preferred
stock in a way that materially and adversely affects any right,
preference, privilege or voting power of that outstanding
preferred stock.
This consent must be given by the holders of at least two-thirds of all
outstanding preferred stock described in the preceding sentence, voting
together as a single class. However, we will not be required to obtain this
consent with respect to any amendment, alteration or repeal affecting the
rights, preferences, privileges or voting powers of preferred stock of the type
described above, if we only:
. increase the amount of the authorized preferred stock;
. create and issue another series of preferred stock; or
. increase the amount of authorized shares of any series of preferred
stock;
so long as that preferred stock in each case ranks equal with or junior to the
shares of preferred stock offered under this prospectus with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of our business.
The holders of our tracking preferred stock, ESOP preferred stock, 1995
ESOP preferred stock, 1996 ESOP preferred stock, 1997 ESOP preferred stock,
1998 ESOP preferred stock, 1999
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ESOP preferred stock, series B preferred stock and series H preferred stock
described below under "--Outstanding Preferred Stock" have voting rights
similar to those described in this section.
OUTSTANDING PREFERRED STOCK
Unless we specify otherwise in the applicable prospectus supplement, the
preferred stock offered by this prospectus will rank equally in all respects
with our outstanding preferred stock. Our common stock, including the common
stock that may be issued upon conversion of preferred stock or in exchange for,
or upon conversion of, debt securities or upon exercise of securities warrants,
will be subject to any prior rights of the preferred stock then outstanding.
Therefore, the rights of the outstanding preferred stock described below and
any preferred stock that may be issued after the date hereof, may limit the
rights of the holders of the common stock. At March 31, 1999, we had
outstanding:
. 980,000 shares of cumulative tracking preferred stock, which we refer
to as our tracking preferred stock, of which 25,000 shares are held
by one of our subsidiaries;
. 9,661 shares of ESOP cumulative convertible preferred stock, which we
refer to as our ESOP preferred stock;
. 20,016 shares of 1995 ESOP cumulative convertible preferred stock,
which we refer to as our 1995 ESOP preferred stock;
. 21,466 shares of 1996 ESOP cumulative convertible preferred stock,
which we refer to as our 1996 ESOP preferred stock;
. 18,810 shares of 1997 ESOP cumulative convertible preferred stock,
which we refer to as our 1997 ESOP preferred stock;
. 8,740 shares of 1998 ESOP cumulative convertible preferred stock,
which we refer to as our 1998 ESOP preferred stock;
. 58,787 shares of 1999 ESOP cumulative convertible preferred stock,
which we refer to as our 1999 ESOP preferred stock;
. 1,500,000 shares of adjustable rate cumulative preferred stock,
series B, which we refer to as our series B preferred stock; and
. 4,000,000 shares of fixed/adjustable rate noncumulative preferred
stock, series H, which we refer to as our series H preferred stock.
TRACKING PREFERRED STOCK. The tracking preferred stock has a stated value
of $200.00 per share. The holders of the tracking preferred stock are also
collectively the assignees of our entire beneficial ownership interest in the
Class A preferred limited liability company interests, which we refer to as the
"Class A Preferred Securities," of Residential Home Mortgage, L.L.C.
The tracking preferred stock provides for per share cumulative annual
cash dividends in an amount equal to the product of the Dividend Rate, as
defined in the certificate of designations for the tracking preferred stock,
and $200.00. These dividends are payable quarterly. The Dividend Rate is
currently 9.3% and will be reset on January 1, 2000 and on January 1 of each
fifth year thereafter as described in the certificate of designations for the
tracking preferred stock. The tracking preferred stock also provides for
additional cash distributions that are based upon the results of operations of
Residential Home Mortgage, payable on December 31, 1999 and on December 31 of
each fifth year thereafter. The terms of the tracking preferred stock provide
that the amount of certain dividends
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distributed or distributions paid to the holders of tracking preferred stock as
assignees of our interest in the Class A Preferred Securities of Residential
Home Mortgage will reduce dollar for dollar, respectively, the dividends and
distributions to which the holders of the tracking preferred stock would
otherwise be entitled under the terms of the certificate of designations for
the tracking preferred stock.
The tracking preferred stock is subject to redemption, in whole or in
part, at our option, at a per share price equal to the greater of:
. $200.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value of a Per Share Tracking Interest in Residential
Home Mortgage, as defined in the certificate of designations for the
tracking preferred stock.
Subject to exceptions set forth in the certificate of designations for the
tracking preferred stock, the tracking preferred stock is not subject to
redemption prior to December 31, 1999. Any redemption payments received by a
holder of tracking preferred stock as an assignee of our interest in Class A
Preferred Securities of Residential Home Mortgage will reduce dollar for dollar
the amount of redemption payments to which the holders of tracking preferred
stock would otherwise be entitled under the terms of the certificate of
designations for the tracking preferred stock.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of tracking preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to the holders of
common stock, a per share amount equal to the greater of:
. $200.00 per share, plus accrued and unpaid dividends to the date of
final distribution, and
. the Fair Market Value of a Per Share Tracking Interest in Residential
Home Mortgage, as defined in the certificate of designations for our
tracking preferred stock.
Any liquidation payments received by a holder of tracking preferred stock as an
assignee of our interest in Class A Preferred Securities of Residential Home
Mortgage will reduce dollar for dollar the amount to which the holders of the
tracking preferred stock would otherwise be entitled pursuant to the terms of
the certificate of designations for our tracking preferred stock, provided that
no reduction shall result from a payment made prior to December 31, 1999 in
connection with the voluntary dissolution of Residential Home Mortgage.
Except as required by law, the holders of tracking preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". The tracking preferred stock does not have preemptive
rights and is not subject to any sinking fund, and we are not otherwise
obligated to repurchase or redeem the tracking preferred stock.
ESOP PREFERRED STOCK. The ESOP preferred stock has a stated value of
$1,000.00 per share. The ESOP preferred stock provides for cumulative quarterly
dividends at the annual rate of 9% calculated as a percentage of stated value.
All outstanding shares of ESOP preferred stock are held of record by a trustee
acting on behalf of the Norwest Corporation Savings Investment Plan and Master
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Savings Trust, or any successor to that plan, which we refer to as the Savings
Investment Plan in this prospectus. The ESOP preferred stock is subject to
redemption, in whole or in part, at our option, at a price equal to the higher
of:
. $1,000.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value per share of ESOP preferred stock, as that term
is used in the certificate of designations for the ESOP preferred
stock, on the date fixed for redemption.
The ESOP preferred stock is mandatorily convertible, without any further
action on our part or on the part of the holder, into common stock at the then-
applicable Conversion Price, as defined in the certificate of designations for
the ESOP preferred stock, when:
. the ESOP preferred stock is released from the unallocated reserve of
the Savings Investment Plan in accordance with the terms of that
Plan; or
. when record ownership of the shares of ESOP preferred stock is
transferred to any person other than a successor trustee under the
Savings Investment Plan.
In addition, a holder of ESOP preferred stock is entitled, at any time before
the date fixed for redemption, to convert shares of ESOP preferred stock held
by that holder into shares of common stock at the then-applicable Conversion
Price.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of ESOP preferred stock are entitled to
receive out of our assets available for distribution to stockholders, before
any distribution of assets is made to holders of common stock, $1,000.00 per
share, plus accrued and unpaid dividends.
Except as required by law, the holders of ESOP preferred stock are not
entitled to vote, except under the limited circumstances described above under
"--Voting Rights". The ESOP preferred stock does not have preemptive rights and
is not subject to any sinking fund and we are not otherwise obligated to
repurchase or redeem the ESOP preferred stock.
1995 ESOP PREFERRED STOCK. The 1995 ESOP preferred stock has a stated
value of $1,000.00 per share. The 1995 ESOP preferred stock provides for
cumulative quarterly dividends at the annual rate of 10% calculated as a
percentage of stated value. All outstanding shares of 1995 ESOP preferred stock
are held of record by a trustee acting on behalf of the Savings Investment
Plan. The 1995 ESOP preferred stock is subject to redemption, in whole or in
part, at our option, at a price equal to the higher of:
. $1,000.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value per share of 1995 ESOP preferred stock, as that
term is used in the certificate of designations for the 1995 ESOP
preferred stock, on the date fixed for redemption.
The 1995 ESOP preferred stock is mandatorily convertible, without any
further action on our part or on the part of the holder, into common stock at
the then-applicable Conversion Price, as that term is used in the certificate
of designations for our 1995 ESOP preferred stock, when:
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. the 1995 ESOP preferred stock is released from the unallocated
reserve of the Savings Investment Plan in accordance with the terms
of that Plan; or
. when a record ownership of the shares of 1995 ESOP preferred stock is
transferred to any person other than a successor trustee under the
Savings Investment Plan.
In addition, a holder of 1995 ESOP preferred stock is entitled, at any time
before the date fixed for redemption, to convert shares of 1995 ESOP preferred
stock held by that holder into shares of common stock at the then-applicable
Conversion Price.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of 1995 ESOP preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to holders of common
stock, $1,000.00 per share, plus accrued and unpaid dividends.
Except as required by law, the holders of 1995 ESOP preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". The 1995 ESOP preferred stock does not have preemptive
rights and is not subject to any sinking fund and we are not otherwise
obligated to repurchase or redeem the 1995 ESOP preferred stock.
1996 ESOP PREFERRED STOCK. The 1996 ESOP preferred stock has a stated
value of $1,000.00 per share. The 1996 ESOP preferred stock provides for
cumulative quarterly dividends at the annual rate of $85.00, $90.00 or $95.00
based on the Current Market Price, as that term is used in the certificate of
designations for the 1996 ESOP preferred stock, of one share of common stock as
of a fixed trading date. All outstanding shares of 1996 ESOP preferred stock
are held of record by a trustee acting on behalf of the Savings Investment
Plan. The 1996 ESOP preferred stock is subject to redemption, in whole or in
part, at our option, at a price equal to the higher of:
. $1,000.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value per share of 1996 ESOP preferred stock, as that
term is used in the certificate of designations for the 1996 ESOP
preferred stock, on the date fixed for redemption.
The 1996 ESOP preferred stock is mandatorily convertible, without any
further action on our part or on the part of the holder, into common stock at
the applicable Conversion Price, as that term is used in the certificate of
designations for the 1996 ESOP preferred stock, when:
. the 1996 ESOP preferred stock is released from the unallocated
reserve of the Savings Investment Plan in accordance with the terms
of that Plan; or
. when record ownership of the shares of 1996 ESOP preferred stock is
transferred to any person other than a successor trustee under the
Savings Investment Plan.
In addition, a holder of 1996 ESOP preferred stock is entitled, at any time
before the date fixed for redemption, to convert shares of 1996 ESOP preferred
stock held by that holder into shares of common stock at the then-applicable
Conversion Price.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of 1996 ESOP preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to holders of common
stock, $1,000.00 per share, plus accrued and unpaid dividends.
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Except as required by law, the holders of 1996 ESOP preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". The 1996 ESOP preferred stock does not have preemptive
rights and is not subject to any sinking fund and we are not otherwise
obligated to repurchase or redeem the 1996 ESOP preferred stock.
1997 ESOP PREFERRED STOCK. The 1997 ESOP preferred stock has a stated
value of $1,000.00 per share. The 1997 ESOP preferred stock provides for
cumulative quarterly dividends at the annual rate of $95.00, $100.00 or $105.00
based on the Current Market Price, as that term is used in the certificate of
designations for the 1997 ESOP preferred stock, of one share of common stock as
of a fixed trading date. All outstanding shares of 1997 ESOP preferred stock
are held of record by a trustee acting on behalf of the Savings Investment
Plan. The 1997 ESOP preferred stock is subject to redemption, in whole or in
part, at our option, at a price equal to the higher of:
. $1,000.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value per share of 1997 ESOP preferred stock, as that
term is used in the certificate of designations for the 1997 ESOP
preferred stock, on the date fixed for redemption.
The 1997 ESOP preferred stock is mandatorily convertible, without any
further action on our part or on the part of the holder, into common stock at
the applicable Conversion Price, as that term is used in the certificate of
designations for the 1997 ESOP preferred stock, when:
. the 1997 ESOP preferred stock is released from the unallocated
reserve of the Savings Investment Plan in accordance with the terms
of that Plan; or
. when record ownership of the shares of 1997 ESOP preferred stock is
transferred to any person other than a successor trustee under the
Savings Investment Plan.
In addition, a holder of 1997 ESOP preferred stock is entitled, at any time
before the date fixed for redemption, to convert shares of 1997 ESOP preferred
stock held by that holder into shares of common stock at the then-applicable
Conversion Price.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of 1997 ESOP preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to holders of common
stock, $1,000.00 per share, plus accrued and unpaid dividends.
Except as required by law, the holders of 1997 ESOP preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". The 1997 ESOP preferred stock does not have preemptive
rights and is not subject to any sinking fund and we are not otherwise
obligated to repurchase or redeem the 1997 ESOP preferred stock.
1998 ESOP PREFERRED STOCK. The 1998 ESOP preferred stock has a stated
value of $1,000.00 per share. The 1998 ESOP preferred stock provides for
cumulative quarterly dividends at the annual rate of $107.50, $112.50 or
$117.50 based on the Current Market Price, as that term is used in the
certificate of designations for the 1998 ESOP preferred stock, of one share of
common stock as of a fixed trading date. All outstanding shares of 1998 ESOP
preferred stock are held of record by a trustee acting on behalf of the Savings
Investment Plan. The 1998 ESOP preferred stock is subject to redemption, in
whole or in part, at our option, at a price equal to the higher of:
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. $1,000.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value per share of 1998 ESOP preferred stock, as that
term is used in the certificate of designations for the 1998 ESOP
preferred stock, on the date fixed for redemption.
The 1998 ESOP preferred stock is mandatorily convertible, without any
further action on our part or on the part of the holder, into common stock at
the applicable Conversion Price, as that term is used in the certificate of
designations for the 1998 ESOP preferred stock, when:
. the 1998 ESOP preferred stock is released from the unallocated
reserve of the Savings Investment Plan in accordance with the terms
of that Plan; or
. when record ownership of the shares of 1998 ESOP preferred stock is
transferred to any person other than a successor trustee under the
Savings Investment Plan.
In addition, a holder of 1998 ESOP preferred stock is entitled, at any time
before the date fixed for redemption, to convert shares of 1998 ESOP preferred
stock held by that holder into shares of common stock at the then-applicable
Conversion Price.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of 1998 ESOP preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to holders of common
stock, $1,000.00 per share, plus accrued and unpaid dividends.
Except as required by law, the holders of 1998 ESOP preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". The 1998 ESOP preferred stock does not have preemptive
rights and is not subject to any sinking fund and we are not otherwise
obligated to repurchase or redeem the 1998 ESOP preferred stock.
1999 ESOP PREFERRED STOCK. The 1999 ESOP preferred stock has a stated
value of $1,000.00 per share. The 1999 ESOP preferred stock provides for
cumulative quarterly dividends at the annual rate of $103.00, $108.00 or
$113.00 based on the Current Market Price, as that term is used in the
certificate of designations for the 1999 ESOP preferred stock, of one share of
common stock as of a fixed trading date. All outstanding shares of 1999 ESOP
preferred stock are held of record by a trustee acting on behalf of the Savings
Investment Plan. The 1999 ESOP preferred stock is subject to redemption, in
whole or in part, at our option, at a price equal to the higher of:
. $1,000.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption; and
. the Fair Market Value per share of 1999 ESOP preferred stock, as that
term is used in the certificate of designations for the 1999 ESOP
preferred stock, on the date fixed for redemption.
The 1999 ESOP preferred stock is mandatorily convertible, without any
further action on our part or on the holder, into common stock at the
applicable Conversion Price, as that term is used in the certificate of
designations for the 1999 ESOP preferred stock, when:
. the 1999 ESOP preferred stock is released from the unallocated
reserve of the Savings Investment Plan in accordance with the terms
of that Plan; or
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. when record ownership of the shares of 1999 ESOP preferred stock is
transferred to any person other than a successor trustee under the
Savings Investment Plan.
In addition, a holder of 1999 ESOP preferred stock is entitled, at any time
before the date fixed for redemption, to convert shares of 1999 ESOP preferred
stock held by that holder into shares of common stock at the then-applicable
Conversion Price.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of 1999 ESOP preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to holders of common
stock, $1,000.00 per share, plus accrued and unpaid dividends.
Except as required by law, the holders of 1999 ESOP preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". The 1999 ESOP preferred stock does not have preemptive
rights and is not subject to any sinking fund and we are not otherwise
obligated to repurchase or redeem the 1999 ESOP preferred stock.
SERIES B PREFERRED STOCK. The series B preferred stock provides for
quarterly cumulative dividends. Each quarterly dividend payment equals $50.00
multiplied by the dividend rate for that dividend period, divided by four. The
dividend rate for a given dividend payment is equal to 76% of the highest of:
. the three-month Treasury Bill Rate;
. the Ten Year Constant Maturity Rate; or
. the Twenty Year Constant Maturity Rate, as each term is used in the
certificate of designations for the series B preferred stock.
In no event, however, will the dividend rate be less than 5.5% on an
annual basis or greater than 10.5% on an annual basis. The series B preferred
stock is subject to redemption, in whole or in part, at our option, at a per
share price equal to $50.00, plus accrued and unpaid dividends thereon to the
date fixed for redemption.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of series B preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to the holders of
common stock, a per share amount equal to $50.00, plus accrued and unpaid
dividends to the date of final distribution.
Except as required by law, the holders of series B preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". Holders of series B preferred stock have no rights to
convert their shares into or exchange their shares for any other shares of our
capital stock. The series B preferred stock does not have preemptive rights and
is not subject to any sinking fund, and we are not otherwise obligated to
repurchase or redeem the series B preferred stock. Our outstanding shares of
series B preferred stock are listed on the New York Stock Exchange under the
symbol "WFCPRB".
SERIES H PREFERRED STOCK. The series H preferred stock provides for
quarterly noncumulative dividends. The dividend rate for each quarter through
October 1, 2001 will be based upon an annual rate of 6.59%, and any quarterly
dividend will equal the amount obtained by multiplying $50.00 by the quarterly
dividend rate. The quarterly dividend rate through October 1, 2001 equals
1.6475%, or
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6.59% divided by four. After October 1, 2001, the dividend rate for each
quarter will be based upon an annual rate equal to .44% plus the highest of:
. the Treasury Bill Rate;
. the Ten Year Constant Maturity Rate; or
. the Thirty Year Constant Maturity Rate, as each term is used in the
certificate of designations for the series H preferred stock.
We may be required to adjust this rate, however, in the case of amendments to
the Internal Revenue Code of 1986. In no event will the annual dividend rate
after October 1, 2001 be less than 7% or greater than 13%. Any quarterly
dividend paid after October 1, 2001 will equal the amount obtained by
multiplying $50.00 by the quarterly dividend rate, or the annual dividend rate
divided by four.
Except as set forth below, we may not redeem the series H preferred stock
before October 1, 2001. At any time after October 1, 2001, we may redeem the
series H preferred stock, in whole or in part, at our option, at a per share
price equal to $50.00, plus accrued and unpaid dividends to the date fixed for
redemption. Notwithstanding the foregoing, we may redeem all, but not less than
all, of the outstanding shares of series H preferred stock at any time at our
option if the percentage of dividends received deduction as specified in
Section 243(a)(1) of the Internal Revenue Code of 1986 or any successor
provision is equal to or less than 40% and as a result the dividends payable on
the series H preferred stock will be adjusted upward as specified in the
certificate of designations for the series H preferred stock. In this event,
the per share redemption price will initially equal $51.50, plus accrued and
unpaid dividends from the immediately preceding dividend payment date, whether
or not earned or declared, and the redemption price will decrease each twelve-
month period thereafter by $.50 but not below $50.00 plus accrued and unpaid
dividends from the immediately preceding dividend payment date, whether or not
earned or declared.
In the event of our voluntary or involuntary liquidation, dissolution or
winding up of our business, the holders of series H preferred stock are
entitled to receive out of our assets available for distribution to
stockholders, before any distribution of assets is made to the holders of
common stock, a per share amount equal to $50.00, plus an amount equal to all
dividends, whether or not earned or declared, from the immediately preceding
dividend payment date to the date of final distribution. Holders of series H
preferred stock will not be entitled to receive payment for unpaid dividends
for any periods before the immediately preceding dividend payment date.
Except as required by law, the holders of series H preferred stock are
not entitled to vote, except under the limited circumstances described above
under "--Voting Rights". Holders of series H preferred stock have no rights to
convert their shares into or exchange their shares for any other shares of our
capital stock. The series H preferred stock does not have preemptive rights and
is not subject to any sinking fund and we are not otherwise obligated to
repurchase or redeem the series H preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of the depositary
shares. The prospectus supplement will describe the specific terms of the
depositary shares offered through that prospectus supplement and any general
terms outlined in this section that will not apply to those depositary shares.
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We have summarized the material terms and provisions of the deposit
agreement, the depositary shares and the depositary receipts in this section.
We have also filed the form of deposit agreement, including the form of
depositary receipt, as an exhibit to the registration statement. You should
read the forms of deposit agreement and depositary receipt relating to a series
of preferred stock for additional information before you buy any depositary
shares that represent preferred stock of that series.
GENERAL
We may offer fractional interests in preferred stock, rather than full
shares of preferred stock. If we do, we will provide for the issuance by a
depositary to the public of receipts for depositary shares, each of which will
represent a fractional interest in a share of a particular series of preferred
stock.
The shares of any series of preferred stock underlying the depositary
shares will be deposited under a separate deposit agreement between us and a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50 million, which we refer
to in this prospectus as the depositary. We will name the depositary in the
applicable prospectus supplement. Subject to the terms of the deposit
agreement, each owner of a depositary share will have a fractional interest in
all the rights and preferences of the preferred stock underlying the depositary
share. Those rights include any dividend, voting, redemption, conversion and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. If you purchase fractional interests in shares of
the related series of preferred stock, you will receive depositary receipts as
described in the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to issue temporary
depositary receipts substantially identical to the final depositary receipts
although not in final form. The holders of the temporary depositary receipts
will be entitled to the same rights as if they held the depositary receipts in
final form. Holders of the temporary depositary receipts can exchange them for
the final depositary receipts at our expense.
Unless we specify otherwise in the applicable prospectus supplement, you
will not be entitled to receive the whole shares of preferred stock underlying
the depositary shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record
holders of depositary shares representing the shares of preferred stock in
proportion to the numbers of depositary shares owned by the holders on the
relevant record date. The depositary will not distribute amounts less than one
cent. The depositary will distribute any balance with the next sum received for
distribution to record holders of depositary shares.
If there is a distribution other than in cash, the depositary will
distribute property to the holders of depositary shares, unless the depositary
determines that it is not feasible to make the distribution. If this occurs,
the depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of depositary shares.
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The deposit agreement will also contain provisions relating to how any
subscription or similar rights offered by us to holders of the preferred stock
will be made available to the holders of depositary shares.
CONVERSION AND EXCHANGE
If any series of preferred stock underlying the depositary shares is
subject to conversion or exchange, the applicable prospectus supplement will
describe the rights or obligations of each record holder of depositary receipts
to convert or exchange the depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If the series of the preferred stock underlying the depositary shares is
subject to redemption, all or a part of the depositary shares will be redeemed
from the redemption proceeds of that series of the preferred stock held by the
depositary. The depositary will mail notice of redemption between 30 to 60 days
prior to the date fixed for redemption to the record holders of the depositary
shares to be redeemed at their addresses appearing in the depositary's records.
The redemption price per depositary share will bear the same relationship to
the redemption price per share of preferred stock that the depositary share
bears to the underlying preferred stock. Whenever we redeem preferred stock
held by the depositary, the depositary will redeem, as of the same redemption
date, the number of depositary shares representing the preferred stock
redeemed. If less than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as
determined by the depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the depositary shares were
entitled to receive upon the redemption. Payments will be made when holders
surrender their depositary receipts to the depositary.
VOTING THE PREFERRED STOCK
When the depositary receives notice of any meeting at which the holders
of the preferred stock may vote, the depositary will mail information about the
meeting contained in the notice, and any accompanying proxy materials, to the
record holders of the depositary shares relating to the preferred stock. Each
record holder of such depositary shares on the record date, which will be the
same date as the record date for the preferred stock, will be entitled to
instruct the depositary as to how the preferred stock underlying the holder's
depositary shares should be voted.
The depositary will try, if practical, to vote the number of shares of
preferred stock underlying the depositary shares according to the instructions
received. We will agree to take all action requested by and deemed necessary by
the depositary in order to enable the depositary to vote the preferred stock in
that manner. The depositary will not vote any preferred stock for which it does
not receive specific instructions from the holders of the depositary shares
relating to such preferred stock.
TAXATION
Owners of depositary shares will be treated for federal income tax
purposes as if they were owners of the preferred stock represented by the
depositary shares. Accordingly, for federal income
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tax purposes they will have the income and deductions to which they would be
entitled if they were holders of the preferred stock. In addition:
. no gain or loss will be recognized for federal income tax purposes
upon the withdrawal of preferred stock in exchange for depositary
shares as provided in the deposit agreement;
. the tax basis of each share of preferred stock to an exchanging owner
of depositary shares will, upon the exchange, be the same as the
aggregate tax basis of the depositary shares exchanged for such
preferred stock; and
. the holding period for the preferred stock, in the hands of an
exchanging owner of depositary shares who held the depositary shares
as a capital asset at the time of the exchange, will include the
period that the owner held the depositary shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between us and
the depositary at any time. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless approved by the record holders of at least a majority
of the depositary shares then-outstanding. A deposit agreement may be
terminated by us or the depositary only if:
. all outstanding depositary shares relating to the deposit agreement
have been redeemed; or
. there has been a final distribution on the preferred stock of the
relevant series in connection with our liquidation, dissolution or
winding up of our business and the distribution has been distributed
to the holders of the related depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay
associated charges of the depositary for the initial deposit of the preferred
stock and any redemption of the preferred stock. Holders of depositary shares
will pay transfer and other taxes and governmental charges and any other
charges that are stated to be their responsibility in the deposit agreement.
MISCELLANEOUS
We will forward to the depositary, for distribution to the holders of
depositary shares, all reports and communications that we must furnish to the
holders of the preferred stock.
Neither the depositary nor we will be liable if the depositary is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the deposit agreement. Our obligations and the
depositary's obligations under the deposit agreement will be limited to
performance in good faith of duties set forth in the deposit agreement. Neither
the depositary nor we will be obligated to prosecute or defend any legal
proceeding connected with any depositary shares or preferred stock unless
satisfactory indemnity is furnished to us and/or the depositary. We and the
depositary may rely upon written advice of counsel or accountants, or
information provided by
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persons presenting preferred stock for deposit, holders of depositary shares or
other persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering notice to us. We may
also remove the depositary at any time. Resignations or removals will take
effect when a successor depositary is appointed and it accepts the appointment.
The successor depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50 million.
DESCRIPTION OF COMMON STOCK
This section describes the general terms and provisions of the shares of
our common stock. The prospectus supplement will describe the specific terms of
the common stock offered through that prospectus supplement and any general
terms outlined in this section that will not apply to that common stock.
We have summarized the material terms and provisions of the common stock
in this section. We have also filed our restated certificate of incorporation,
as amended, our bylaws and the certificate of designation relating to our
series C junior participating preferred stock, referred to in this prospectus
as our series C preferred stock, as exhibits to the registration statement. You
should read our restated certificate of incorporation, as amended, and our
bylaws and the certificate of designation relating to the series C preferred
stock for additional information before you buy any securities which may be
exercised or exchangeable for or converted into common stock.
GENERAL
SHARES OUTSTANDING. As of March 31, 1999, our authorized common stock was
4,000,000,000 shares. From these authorized shares, we had issued 1,666,095,285
shares, of which 1,652,616,366 shares were outstanding and 13,478,919 shares
were held as treasury shares.
DIVIDENDS. Holders of common stock may receive dividends when declared by
our board of directors out of our funds that we can legally use to pay
dividends. We may pay dividends in cash, stock or other property. In certain
cases, holders of common stock may not receive dividends until we have
satisfied our obligations to any holders of outstanding preferred stock. Other
restrictions on our ability to pay dividends are described below under "--
Dividend Restrictions" and above under "Description of Preferred Stock--
Outstanding Preferred Stock."
VOTING RIGHTS. Holders of common stock have the exclusive power to vote
on all matters presented to our stockholders unless Delaware law or the
certificate of designation for an outstanding series of preferred stock gives
the holders of that preferred stock the right to vote on certain matters. Each
holder of common stock is entitled to one vote per share. Holders of common
stock have no cumulative voting rights for the election of directors. This
means a holder of a single share of common stock cannot cast more than one vote
for each position to be filled on our board of directors.
OTHER RIGHTS. If we voluntarily or involuntarily liquidate, dissolve or
wind up our business, holders of common stock will receive pro rata, according
to shares held by them, any of our
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remaining assets available for distribution to stockholders after we have
provided for payment of all debts and other liabilities, including any
liquidation preference for outstanding shares of preferred stock. When we issue
securities in the future, holders of common stock have no preemptive rights.
This means the holders of common stock have no right, as holders of common
stock, to buy any portion of those issued securities. Each share of common
stock includes a right to purchase series C preferred stock if certain
conditions occur. The conditions under which a holder may exercise that
purchase right are discussed below under the heading "--Rights Agreement".
LISTING. Our outstanding shares of common stock are listed on the New
York Stock Exchange and Chicago Stock Exchange under the symbol "WFC." Norwest
Bank Minnesota, N.A. serves as the transfer agent and registrar for the common
stock.
FULLY PAID. The outstanding shares of common stock are fully paid and
nonassessable. This means the full purchase price for the outstanding shares of
common stock has been paid and the holders of such shares will not be assessed
any additional amounts for such shares. Any additional common stock that we may
issue in the future upon the conversion or exercise of other securities offered
under this prospectus will also be fully paid and nonassessable.
RESTRICTIONS ON PAYMENT OF DIVIDENDS
We are incorporated in Delaware and are governed by the Delaware General
Corporation Law. Delaware law allows a corporation to pay dividends only out of
surplus, as determined under Delaware law, or, if there is no surplus, out of
net profits for the fiscal year in which the dividend was declared and for the
preceding fiscal year. However, under Delaware law, we cannot pay dividends out
of net profits if, after we pay the dividend, our capital would be less than
the capital represented by the outstanding stock of all classes having a
preference upon the distribution of our assets.
ANTI-TAKEOVER PROVISIONS CONTAINED IN THE CERTIFICATE OF INCORPORATION AND
BYLAWS
Certain provisions of our restated certificate of incorporation, as
amended, may make it less likely that our management would be changed or
someone would acquire voting control of our company without our board's
consent. These provisions may delay, deter or prevent tender offers or takeover
attempts that stockholders may believe are in their best interests, including
tender offers or attempts that might allow stockholders to receive premiums
over the market price of their common stock.
PREFERRED STOCK. Our board of directors can at any time, under our
restated certificate of incorporation, as amended, and without stockholder
approval, issue one or more new series of preferred stock. In some cases, the
issuance of preferred stock without stockholder approval could discourage or
make more difficult attempts to take control of our company through a merger,
tender offer, proxy contest or otherwise. Preferred stock with special voting
rights or other features issued to persons favoring our management could stop a
takeover by preventing the person trying to take control of our company from
acquiring enough voting shares necessary to take control.
NOMINATION PROCEDURES. In addition to our board of directors,
stockholders can nominate candidates for our board of directors. However, a
stockholder must follow the advance notice procedures described in Section 16
of our bylaws. In general, a stockholder must submit a written notice of the
nomination to our corporate secretary at least 30 but not more than 60 days
before a scheduled meeting of our stockholders.
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PROPOSAL PROCEDURES. Stockholders can propose that business other than
nominations to our board of directors be considered at an annual meeting of
stockholders only if a stockholder follows the advance notice procedures
described in our bylaws. In general, a stockholder must submit a written notice
of the proposal and the stockholder's interest in the proposal to our corporate
secretary at least 90 but not more than 120 days before the date set for the
annual meeting of our stockholders.
AMENDMENT OF BYLAWS. Under our bylaws, our board of directors can adopt,
amend or repeal the bylaws, subject to limitations under the Delaware General
Corporation Law. Our stockholders also have the power to change or repeal our
bylaws.
RIGHTS AGREEMENT
Each share of our common stock, including those that may be issued upon
the conversion or exercise of other securities offered under this prospectus,
carries with it one preferred share purchase right, referred to in this
prospectus as a "Right." If the Rights become exercisable, each Right entitles
the registered holder to purchase one one-thousandth of a share of the series C
preferred stock, subject to a proportionate decrease in the fractional number
of shares of series C preferred stock that may be purchased if a stock split,
stock dividend or similar transaction occurs with respect to the common stock
and a proportionate increase in the event of a reverse stock split. Until a
Right is exercised, the holder of the Right has no right to vote or receive
dividends or any other rights as a stockholder as a result of holding the
Right. The description and terms of the Rights are described in the Rights
Agreement, dated as of October 21, 1998, between us and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent, that has been filed with the SEC as an
exhibit to the registration statement.
The Rights trade automatically with shares of common stock. A holder of
common stock may exercise the Rights only under the circumstances described
below. The Rights will generally cause substantial dilution to a person or
group that attempts to acquire us on terms not approved by our board of
directors. The Rights should not interfere with any merger or other business
combination that our board of directors approves since we may redeem the Rights
before a person or group acquires 15% or more of the outstanding shares of our
common stock. The Rights may, but are not intended to, deter takeover proposals
that may be in the interests of our stockholders.
Shares of series C preferred stock will rank junior to all other series
of our preferred stock, including the preferred stock offered under this
prospectus, if our board, in creating such preferred stock, provides that they
will rank senior to our series C preferred stock. If our stockholders purchase
series C preferred stock, we cannot repurchase that stock from stockholders who
do not want to resell it. Subject to the rights of our senior securities, a
holder of the series C preferred stock will be entitled, for each share owned,
to:
. a quarterly dividend payment equal to the greater of
. $10.00 per share, or
. 1,000 times the aggregate of all dividends declared per share of
common stock,
before any amounts are distributed to holders of common stock or any
other capital stock ranking junior to the series C preferred stock
either as to dividends or upon our liquidation, dissolution or
winding up of our business, so that if the dividend is not paid on
the series C preferred stock in one or more quarters, no dividend may
be paid on common stock or such other junior capital stock until all
previously unpaid dividends on series C preferred stock have been
paid;
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. a liquidation payment equal to the greater of
. $1,000 per share plus all accrued and unpaid dividends, or
. 1,000 times the payment made per share of common stock, if we
liquidate our company,
before any amounts are distributed to holders of common stock or any
other capital stock ranking junior to the series C preferred stock
either as to dividends or upon our liquidation, dissolution or
winding up of our business;
. receive 1,000 times the amount received per share of common stock in
the event of any merger, consolidation, statutory share exchange or
other similar transaction; and
. 1,000 votes per share and will vote together with the common stock
unless applicable law requires otherwise.
These rights of the series C preferred stock are protected by customary
antidilution provisions which automatically increase dividend, liquidation,
merger and voting rights in proportion to increases in common stock resulting
from stock dividends, stock splits and similar transactions. These rights are
proportionately decreased in the event of decreases in common stock resulting
from reverse stock splits and similar transactions.
The purchase price for each one one-thousandth of a share of series C
preferred stock is $160. We must adjust the purchase price if certain events
occur, such as:
. if we pay stock dividends on the series C preferred stock or split
the series C preferred stock;
. if we declare a reverse stock split on the series C preferred stock;
or
. if we issue any shares of capital stock in a reclassification of the
series C preferred stock to holders of series C preferred stock.
We are not required to adjust the purchase price, however, until cumulative
adjustments equal or exceed 1% of the purchase price.
Holders may exercise their Rights only following a distribution date. A
distribution date will occur on the earlier of:
. 10 days after a public announcement that a person or group acquired
15% or more of the outstanding shares of common stock; or
. 10 business days after a person or group makes or announces an offer
to purchase common stock, which, if successful, would result in the
acquisition of 15% or more of the outstanding shares of common stock.
The Rights have additional features that will be triggered upon the
occurrence of specified events, including:
. if a person or group acquires 15% or more of the outstanding shares
of common stock, holders of the Rights, other than such person or
group whose Rights will have become void, may purchase our common
stock, instead of our Series C preferred stock, at 50% of the market
value of the purchased common stock;
. if a person or group acquires 15% or more of the outstanding shares
of common stock, our board of directors may, at any time before the
person or group acquires 50% or
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more of the outstanding shares of common stock, exchange all or part
of the Rights, other than Rights held or previously held by the 15%
or greater stockholder, for common stock or equivalent securities at
an exchange ratio per Right equal to the exercise price of a Right
divided by the current per share market price of the common stock,
subject to adjustment; and
. if our company is involved in certain business combinations or the
sale of 50% or more of our assets or earning power after a person or
group acquires 15% or more of our outstanding common stock, the
holders of the Rights, other than such person or group whose Rights
will have become void, may purchase common stock of the acquiror or
an affiliated company at 50% of market value.
Any time before a person or group acquires 15% or more of the
outstanding shares of common stock, our board of directors may redeem all of
the Rights at a price of $.01 per Right, subject to adjustment for stock
dividends, stock splits and similar transactions. Our board of directors in
its sole discretion may establish the effective time, basis and conditions of
the redemption. Immediately upon redemption of the Rights, the holder can no
longer exercise the Rights and can only receive the redemption price described
above.
The Rights will expire on November 23, 2008, unless we redeem or
exchange them before then or extend the expiration date. Our board of
directors may amend the terms of the Rights without the consent of the holders
of the Rights at any time before the distribution date in any manner our board
deems desirable, including reducing certain thresholds described above to the
greater of:
. the sum of .001% and the largest percentage of outstanding common
stock that we know a person or group owns; or
. 10%.
Our board of directors may amend the terms of the Rights without the consent
of the holders of the Rights after the distribution date only if the amendment
does not adversely affect the interests of the holders of the Rights.
DESCRIPTION OF SECURITIES WARRANTS
This section describes the general terms and provisions of the
securities warrants. The prospectus supplement will describe the specific
terms of the securities warrants offered through that prospectus supplement
and any general terms outlined in this section that will not apply to those
securities warrants.
We may issue warrants for the purchase of debt securities, preferred
stock, depositary shares or common stock. Securities warrants may be issued
alone or together with debt securities, preferred stock or depositary shares
offered by any prospectus supplement and may be attached to or separate from
those securities. Each series of securities warrants will be issued under a
separate securities warrant agreement between us and a bank or trust company,
as securities warrant agent, which will be described in the applicable
prospectus supplement. The securities warrant agent will act solely as our
agent in connection with the securities warrants and will not act as an agent
or trustee for any holders of securities warrants.
We have summarized the material terms and provisions of the securities
warrant agreements and securities warrants in this section. We have also filed
the forms of securities warrant agreements
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and the certificates representing the securities warrants as exhibits to the
registration statement. You should read the applicable forms of securities
warrant agreement and securities warrant certificate for additional information
before you buy any securities warrants.
GENERAL
If we offer securities warrants, the applicable prospectus supplement
will describe their terms. If securities warrants for the purchase of debt
securities are offered, the applicable prospectus supplement will describe the
terms of those securities warrants, including the following if applicable:
. the offering price;
. the currencies in which the securities warrants are being offered;
. the designation, aggregate principal amount, currencies,
denominations and terms of the series of the debt securities that can
be purchased if a holder exercises the securities warrants;
. the designation and terms of any series of debt securities, preferred
stock or depositary shares with which the securities warrants are
being offered and the number of securities warrants offered with each
debt security, share of preferred stock or depositary share;
. the date on and after which the holder of the securities warrants can
transfer them separately from the related series of debt securities,
preferred stock or depositary shares;
. the principal amount of the series of debt securities that can be
purchased if a holder exercises the securities warrant and the price
at which and currencies in which the principal amount may be
purchased upon exercise;
. the date on which the right to exercise the securities warrants
begins and the date on which the right expires;
. whether the securities warrants will be in registered or bearer form;
. United States federal income tax consequences; and
. any other terms of the securities warrants.
Unless we state otherwise in the applicable prospectus supplement, the
securities warrants for the purchase of debt securities will be in registered
form only.
If securities warrants for the purchase of preferred stock, depositary
shares or common stock are offered, the applicable prospectus supplement will
describe the terms of those securities warrants, including the following where
applicable:
. the offering price;
. the total number of shares that can be purchased if a holder of the
securities warrants exercises them and, in the case of securities
warrants for preferred stock or depositary shares, the designation,
total number and terms of the series of preferred stock that can be
purchased upon exercise or that are underlying the depositary shares
that can be purchased upon exercise;
. the designation and terms of the series of debt securities, preferred
stock or depositary shares with which the securities warrants are
being offered and the number of securities
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warrants being offered with each debt security, share of preferred
stock or depositary share;
. the date on and after which the holder of the securities warrants can
transfer them separately from the related series of debt securities,
preferred stock or depositary shares;
. the number of shares of preferred stock, depositary shares or shares
of common stock that can be purchased if a holder exercises the
securities warrant and the price at which the preferred stock,
depositary shares or common stock may be purchased upon each
exercise;
. the date on which the right to exercise the securities warrants
begins and the date on which the right expires;
. United States federal income tax consequences; and
. any other terms of the securities warrants.
Securities warrants for the purchase of preferred stock, depositary shares or
common stock will be in registered form only.
A holder of securities warrant certificates may exchange them for new
certificates of different denominations, present them for registration of
transfer, and exercise them at the corporate trust office of the securities
warrant agent or any other office indicated in the applicable prospectus
supplement.
Until any securities warrants to purchase debt securities are exercised,
the holder of such securities warrants will not have any of the rights of
holders of the debt securities that can be purchased upon exercise, including
any right to receive payments of principal, premium or interest on the
underlying debt securities or to enforce covenants in the applicable
indenture. Until any securities warrants to purchase preferred stock,
depositary shares or common stock are exercised, holders of such securities
warrants will not have any rights of holders of the underlying preferred
stock, depositary shares or common stock, including any right to receive
dividends or to exercise any voting rights.
EXERCISE OF SECURITIES WARRANTS
Each holder of a securities warrant is entitled to purchase the
principal amount of debt securities or number of shares of preferred stock,
depositary shares or shares of common stock, as the case may be, at the
exercise price described in the applicable prospectus supplement. After the
close of business on the day when the right to exercise terminates, or a later
date if we extend the time for exercise, unexercised securities warrants will
become void.
A holder of securities warrants may exercise them by following the
general procedure outlined below:
. delivering to the securities warrant agent the payment required by
the applicable prospectus supplement to purchase the underlying
security;
. properly completing and signing the reverse side of the securities
warrant certificate representing the securities warrants; and
. delivering the securities warrant certificate representing the
securities warrants to the securities warrant agent, or other office
indicated in the applicable prospectus
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supplement, within five business days of the securities warrant agent
receiving payment of the exercise price.
If you comply with the procedures described above, your securities
warrants will be considered to have been exercised when the securities warrant
agent receives payment of the exercise price. After you have completed those
procedures, we will, as soon as practicable, issue and deliver to you the debt
securities, preferred stock, depositary shares or common stock that you
purchased upon exercise. If you exercise fewer than all of the securities
warrants represented by a securities warrant certificate, the securities
warrant agent will issue to you a new securities warrant certificate for the
unexercised amount of securities warrants. Holders of securities warrants will
be required to pay any tax or governmental charge that may be imposed in
connection with transferring the underlying securities in connection with the
exercise of the securities warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
We may amend or supplement a securities warrant agreement without the
consent of the holders of the applicable securities warrants if the changes
are not inconsistent with the provisions of the securities warrants and do not
materially adversely affect the interests of the holders of the securities
warrants. We, along with the securities warrant agent, may also modify or
amend a securities warrant agreement and the terms of the securities warrants
if a majority of the then--outstanding unexercised securities warrants
affected by the modification or amendment consent. However, no modification or
amendment that accelerates the expiration date, increases the exercise price,
reduces the majority consent requirement for any such modification or
amendment, or otherwise materially adversely affects the rights of the holders
of the securities warrants may be made without the consent of each holder
affected by the modification or amendment.
COMMON STOCK WARRANT ADJUSTMENTS
Unless the applicable prospectus supplement states otherwise, the
exercise price of, and the number of shares of common stock covered by, a
warrant for common stock will be adjusted in the manner set forth in the
applicable prospectus supplement if certain events occur, including:
. if we issue capital stock as a dividend or distribution on the common
stock;
. if we subdivide, reclassify or combine the common stock;
. if we issue rights or warrants to all holders of common stock
entitling them, for a period expiring 45 days after the date fixed
for determining the stockholders entitled to receive such rights or
warrants, to purchase common stock at less than the current market
price, as defined in the warrant agreement for such series of common
stock warrants; or
. if we distribute to all holders of common stock evidences of our
indebtedness or our assets, excluding certain cash dividends and
distributions, or if we distribute to all holders of common stock
rights or warrants, excluding those referred to in the bullet point
above.
Except as stated above, the exercise price and number of shares of
common stock covered by a common stock warrant will not be adjusted if we
issue common stock or any securities convertible into or exchangeable for
common stock, or securities carrying the right to purchase common stock or
securities convertible into or exchangeable for common stock.
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Holders of common stock warrants may have additional rights under the
following circumstances:
. a reclassification or change of the common stock;
. a consolidation or merger involving our company; or
. a sale or conveyance to another corporation of all or substantially
all of our property and assets.
If one of the above transactions occurs and holders of our common stock are
entitled to receive stock, securities, other property or assets, including
cash, with respect to or in exchange for common stock, the holders of the
common stock warrants then outstanding will be entitled to receive upon
exercise of their common stock warrants the kind and amount of shares of stock
and other securities or property that they would have received upon the
reclassification, change, consolidation, merger, sale or conveyance if they had
exercised their common stock warrants immediately before the transaction.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus through agents,
through underwriters or dealers or directly to one or more purchasers. We may
also offer the securities in exchange for our outstanding indebtedness.
Underwriters, dealers and agents that participate in the distribution of
the securities offered under this prospectus may be underwriters as defined in
the Securities Act of 1933 and any discounts or commissions received by them
from us and any profit on the resale of the offered securities by them may be
treated as underwriting discounts and commissions under the Securities Act. Any
underwriters or agents will be identified and their compensation, including
underwriting discount, will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including the initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the offered securities may be listed.
The distribution of the securities offered under this prospectus may
occur from time to time in one or more transactions at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at
prices related to the prevailing market prices or at negotiated prices.
If the securities offered under this prospectus are issued in exchange
for our outstanding securities, the applicable prospectus supplement will set
forth the terms of the exchange, the identity of and the terms of sale of the
securities offered under this prospectus by the selling security holders.
If the applicable prospectus supplement indicates, we will authorize
dealers or our agents to solicit offers by institutions to purchase offered
securities from us under contracts that provide for payment and delivery on a
future date. We must approve all institutions, but they may include, among
others:
. commercial and savings banks;
. insurance companies;
. pension funds;
44
<PAGE>
. investment companies; and
. educational and charitable institutions.
The institutional purchaser's obligations under the contract are only subject
to the condition that the purchase of the offered securities at the time of
delivery is allowed by the laws that govern the purchaser. The dealers and our
agents will not be responsible for the validity or performance of the
contracts.
One of our wholly-owned subsidiaries, Norwest Investment Services Inc.,
or NISI, may help place some of the securities offered under this prospectus.
If this occurs, the placement will comply with Rule 2720 of the Conduct Rules
of the National Association of Securities Dealers, Inc. and will be made under
an agreement between us and NISI. This agreement will authorize NISI to contact
its existing customers, which are financial institutions and sophisticated
investors, to inform them that the securities offered by this prospectus can be
purchased from us. NISI will forward any orders for such securities to us for
acceptance. We will pay NISI a commission at the same rate as the commissions
we pay to the other agents that are offering securities under the same
prospectus supplement.
We may have agreements with the underwriters, dealers and agents,
including NISI, to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute with respect to payments
which the underwriters, dealers or agents may be required to make as a result
of those certain civil liabilities.
If we offer bearer debt securities under this prospectus, each
underwriter, dealer and agent that participates in the distribution of any
original issuance of bearer debt securities will agree not to offer, sell or
deliver bearer debt securities to a United States citizen or to any person
within the United States, unless federal law permits otherwise.
When we issue the securities offered by this prospectus, except for
shares of common stock, they may be new securities without an established
trading market. If we sell a security offered by this prospectus to an
underwriter for public offering and sale, the underwriter may make a market for
that security, but the underwriter will not be obligated to do so and could
discontinue any market making without notice at any time. Therefore, we cannot
give any assurances to you concerning the liquidity of any security offered by
this prospectus.
Underwriters and agents and their affiliates may be customers of, engage
in transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses.
LEGAL OPINIONS
Stanley S. Stroup, who is our Executive Vice President and General
Counsel, or another of our lawyers, will issue an opinion about the legality of
the securities offered by this prospectus. Mr. Stroup owns, or has the right to
acquire, a number of shares of our common stock which represents less than 0.1%
of the total outstanding common stock. Certain legal matters will be passed
upon for any underwriters or agents by Gibson, Dunn & Crutcher LLP, San
Francisco, California. Gibson, Dunn & Crutcher LLP represents us and certain of
our subsidiaries in other legal matters.
45
<PAGE>
EXPERTS
KPMG LLP, independent auditors, have audited our consolidated financial
statements included in our Annual Report on Form 10-K for the year ended
December 31, 1998, as set forth in their report, which is incorporated in this
prospectus by reference. Our consolidated financial statements are, and
consolidated financial statements included in subsequent filings with the SEC
will be, incorporated by reference in this prospectus in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing, to the extent consolidated financial statements included in such
subsequent filings are covered by consents executed by such firm and filed with
the SEC.
46
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee............................................. $2,780,000
Legal Fees and Expenses*..................................... 100,000
Trustee Fees and Expenses*................................... 25,000
Accounting Fees and Expenses*................................ 55,000
Blue Sky and Legal Investment Fees and Expenses*............. 25,000
Printing and Engraving Fees*................................. 80,000
Rating Agency Fees*.......................................... 200,000
Listing Fees*................................................ 50,000
Miscellaneous*............................................... 22,500
----------
Total*....................................................... $3,337,500
==========
</TABLE>
- -------------
*Estimated pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes
indemnification of directors and officers of a Delaware corporation under
certain circumstances against expenses, judgments and the like in connection
with litigation. Article Fourteenth of the restated certificate of
incorporation of the Registrant provides for broad indemnification of directors
and officers. The Registrant also maintains insurance coverage relating to
certain liabilities of directors and officers.
Pursuant to the terms of forms of underwriting agreements and form of
distribution agreement filed as Exhibits 1(a), 1(b) and 1(c) to this
Registration Statement, the directors and officers of the Registrant will be
indemnified against certain civil liabilities that they may incur under the
Securities Act of 1933 in connection with this Registration Statement and the
related Prospectus and applicable Prospectus Supplement.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
<C> <S>
1(a) Form of Underwriting Agreement for Debt Securities.
1(b) Form of Underwriting Agreement for Preferred Stock.
1(c) Form of Distribution Agreement.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
<C> <S>
4(a) Restated Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3(b) to Registrant's Current Report on Form 8-K
dated June 28, 1993, Exhibit 3 to Registrant's Current Report on
Form 8-K dated July 3, 1995, and Exhibits 3(b) and 3(c) to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998).
4(b) Certificate of Designations for ESOP Cumulative Convertible
Preferred Stock (incorporated by reference to Exhibit 4 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994).
4(c) Certificate of Designations for Cumulative Tracking Preferred Stock
(incorporated by reference to Exhibit 3 to Registrant's Current
Report on Form 8-K dated January 9, 1995).
4(d) Certificate of Designations for 1995 ESOP Cumulative Convertible
Preferred Stock (incorporated by reference to Exhibit 4 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995).
4(e) Certificate of Designations for 1996 ESOP Cumulative Convertible
Preferred Stock (incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated November 26, 1996).
4(f) Certificate of Designations for 1997 ESOP Cumulative Convertible
Preferred Stock (incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated April 14, 1997).
4(g) Certificate of Designations for 1998 ESOP Cumulative Convertible
Preferred Stock (incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated April 20, 1998).
4(h) Certificate of Designations for 1999 ESOP Cumulative Convertible
Preferred Stock (incorporated by reference to Exhibit 3(b) to
Registrant's Current Report on Form 8-K dated April 21, 1999).
4(i) Certificate of Designations for Adjustable Cumulative Preferred
Stock, Series B (incorporated by reference to Exhibit 3(j) to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998).
4(j) Certificate of Designations for Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series H (incorporated by reference to Exhibit 3(k)
to Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998).
4(k) Certificate of Designations for Series C Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3(l) to
Registrant's Annual Report on Form 10-K for the year ended December
31, 1998).
4(l) Certificate Eliminating the Certificate of Designations for
Cumulative Convertible Preferred Stock, Series B (incorporated by
reference to Exhibit 3(a) to Registrant's Current Report on Form 8-K
dated November 1, 1995).
4(m) Certificate Eliminating the Certificate of Designations for 10.24%
Cumulative Preferred Stock (incorporated by reference to Exhibit 3
to Registrant's Current Report on Form 8-K dated February 20, 1996).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
<C> <S>
4(n) Certificate Eliminating the Certificate of Designations for Series
A Junior Participating Preferred Stock (incorporated by reference
to Exhibit 3(a) to Registrant's Current Report on Form 8-K dated
April 21, 1999).
4(o) By-Laws (incorporated by reference to Exhibit 3(m) to Registrant's
Annual Report on Form 10-K for the year ended December 31, 1998).
4(p) Rights Agreement, dated as of October 21, 1998, between Norwest
Corporation (now named Wells Fargo & Company) and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent
(incorporated by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form 8-A dated October 21, 1998).
4(q) Form of Senior Indenture.
4(r) Form of Subordinated Indenture.
4(s) Forms of Registered Medium-Term Notes.
4(t) Form of Senior Note.
4(u) Form of Subordinated Note
4(v) Form of Certificate of Designations of Powers, Preferences and
Rights of Preferred Stock.
4(w) Form of Preferred Stock Certificate.
4(x) Form of Convertible Preferred Stock Certificate.
4(y) Form of Deposit Agreement, including form of Depositary Receipt.
4(z) Form of Debt Warrant Agreement, including form of Debt Warrant
Certificate.
4(aa) Form of Preferred Stock Warrant Agreement, including form of
Preferred Stock Warrant Certificate.
4(bb) Form of Common Stock Warrant Agreement, including form of Common
Stock Warrant Certificate.
4(cc) Form of Common Stock Certificate. The Registrant and certain of its
consolidated subsidiaries have outstanding certain long-term debt.
No individual series of such debt exceeds 10% of the total assets
of the Registrant and its consolidated subsidiaries. Copies of
instruments with respect to long-term debt will be furnished to the
Commission upon request.
5 Opinion of General Counsel of the Registrant.
12 Computations of ratio of earnings to fixed charges and ratio of
earnings to fixed charges and Preferred Stock dividends
(incorporated by reference to Exhibits 99(a) and 99(b) to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999).
23(a) Consent of General Counsel of the Registrant (included as part of
Exhibit 5).
23(b) Consent of KPMG LLP.
24 Powers of Attorney.
</TABLE>
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
(a)The undersigned Registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i)to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii)to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii)to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement.
(2)That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(e) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT TO REGISTRATION STATEMENT ON FORM S-3 TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF SAN FRANCISCO, STATE OF CALIFORNIA, ON JUNE 15, 1999.
WELLS FARGO & COMPANY
/s/ Richard M. Kovacevich
By: _________________________________
Richard M. Kovacevich
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO REGISTRATION STATEMENT HAS BEEN SIGNED ON JUNE 15, 1999 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED:
/s/ Richard M. Kovacevich President and Chief Executive
_____________________________________ Officer
Richard M. Kovacevich (Principal Executive Officer)
/s/ Rodney L. Jacobs
_____________________________________ Vice Chairman and Chief Financial
Officer
Rodney L. Jacobs (Principal Financial Officer)
/s/ Les L. Quock Senior Vice President and Controller
_____________________________________ (Principal Accounting Officer)
Les L. Quock
LES BILLER
J.A. BLANCHARD III
MICHAEL R. BOWLIN
EDWARD M. CARSON
DAVID A. CHRISTENSEN
WILLIAM S. DAVILA
SUSAN E. ENGEL
PAUL HAZEN
WILLIAM A. HODDER
RODNEY L. JACOBS
RICHARD M. KOVACEVICH A majority of the Board of
RICHARD D. McCORMICK Directors*
CYNTHIA H. MILLIGAN
BENJAMIN F. MONTOYA
PHILIP J. QUIGLEY
DONALD B. RICE
IAN M. ROLLAND
JUDITH M. RUNSTAD
SUSAN G. SWENSON
DANIEL M. TELLEP
MICHAEL W. WRIGHT
- -------------
*Richard M. Kovacevich, by signing his name hereto, does hereby sign this
document on behalf of each of the directors named above pursuant to powers of
attorney duly executed by the directors named and filed with the Securities and
Exchange Commission on behalf of such directors.
/s/ Richard M. Kovacevich
_____________________________________
Richard M. Kovacevich, Attorney-
in-Fact
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION FORM OF FILING
------- -------------------- -----------------------
<C> <S> <C>
1(a) Form of Underwriting Agreement for Debt
Securities...................................... Electronic Transmission
1(b) Form of Underwriting Agreement for Preferred
Stock........................................... Electronic Transmission
1(c) Form of Distribution Agreement.................. Electronic Transmission
4(a) Restated Certificate of Incorporation, as
amended (incorporated by reference to Exhibit
3(b) to Registrant's Current Report on Form 8-K
dated June 28, 1993, Exhibit 3 to Registrant's
Current Report on Form 8-K dated July 3, 1995,
and Exhibits 3(b)and 3(c) to Registrant's
Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998).
4(b) Certificate of Designations for ESOP Cumulative
Convertible Preferred Stock (incorporated by
reference to Exhibit 4 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended March
31, 1994).
4(c) Certificate of Designations for Cumulative
Tracking Preferred Stock (incorporated by
reference to Exhibit 3 to Registrant's Current
Report on Form 8-K dated January 9, 1995).
4(d) Certificate of Designations for 1995 ESOP
Cumulative Convertible Preferred Stock
(incorporated by reference to Exhibit 4 to
Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995).
4(e) Certificate of Designations for 1996 ESOP
Cumulative Convertible Preferred Stock
(incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated
November 26, 1996).
4(f) Certificate of Designations for 1997 ESOP
Cumulative Convertible Preferred Stock
(incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated
April 14, 1997).
4(g) Certificate of Designations for 1998 ESOP
Cumulative Convertible Preferred Stock
(incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated
April 20, 1998).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION FORM OF FILING
------- -------------------- --------------
<C> <S> <C>
4(h) Certificate of Designations for 1999 ESOP
Cumulative Convertible Preferred Stock
(incorporated by reference to Exhibit 3(b) to
Registrant's Current Report on Form 8-K dated
April 21, 1999).
4(i) Certificate of Designations for Adjustable
Cumulative Preferred Stock, Series B
(incorporated by reference to Exhibit 3(j) to
Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998).
4(j) Certificate of Designations for Fixed/Adjustable
Rate Noncumulative Preferred Stock, Series H
(incorporated by reference to Exhibit 3(k) to
Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998).
4(k) Certificate of Designations for Series C Junior
Participating Preferred Stock (incorporated by
reference to Exhibit 3(l) to Registrant's Annual
Report on Form 10-K for the year ended December
31, 1998).
4(l) Certificate Eliminating the Certificate of
Designations for Cumulative Convertible
Preferred Stock, Series B (incorporated by
reference to Exhibit 3(a) to Registrant's
Current Report on Form 8-K dated November 1,
1995).
4(m) Certificate Eliminating the Certificate of
Designations for 10.24% Cumulative Preferred
Stock (incorporated by reference to Exhibit 3 to
Registrant's Current Report on Form 8-K dated
February 20, 1996).
4(n) Certificate Eliminating the Certificate of
Designations for Series A Junior Participating
Preferred Stock (incorporated by reference to
Exhibit 3(a) to Registrant's Current Report on
Form 8-K dated April 21, 1999).
4(o) By-Laws (incorporated by reference to Exhibit
3(m) to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1998).
4(p) Rights Agreement, dated as of October 21, 1998,
between Norwest Corporation (now named Wells
Fargo &Company) and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (incorporated
by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form 8-A dated October
21, 1998).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION FORM OF FILING
------- -------------------- -----------------------
<C> <S> <C>
4(q) Form of Senior Indenture........................ Electronic Transmission
4(r) Form of Subordinated Indenture.................. Electronic Transmission
4(s) Forms of Registered Medium-Term Notes........... Electronic Transmission
4(t) Form of Senior Note............................. Electronic Transmission
4(u) Form of Subordinated Note....................... Electronic Transmission
4(v) Form of Certificate of Designations of Powers,
Preferences and Rights of Preferred Stock....... Electronic Transmission
4(w) Form of Preferred Stock Certificate............. Electronic Transmission
4(x) Form of Convertible Preferred Stock
Certificate..................................... Electronic Transmission
4(y) Form of Deposit Agreement, including form of
Depositary Receipt.............................. Electronic Transmission
4(z) Form of Debt Warrant Agreement, including form
of Debt Warrant Certificate..................... Electronic Transmission
4(aa) Form of Preferred Stock Warrant Agreement,
including form of Preferred Stock Warrant
Certificate..................................... Electronic Transmission
4(bb) Form of Common Stock Warrant Agreement,
including form of Common Stock Warrant
Certificate..................................... Electronic Transmission
4(cc) Form of Common Stock Certificate................ Electronic Transmission
5 Opinion of General Counsel of the Registrant.... Electronic Transmission
12 Computations of ratio of earnings to fixed
charges and ratio of earnings to fixed charges
and Preferred Stock dividends (incorporated by
reference to Exhibits 99(a) and 99(b) to the
Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1999).
23(a) Consent of General Counsel of the Registrant
(included as part of Exhibit 5).
23(b) Consent of KPMG LLP............................. Electronic Transmission
24 *Powers of Attorney.............................
</TABLE>
- -------------
*Previously filed.
<PAGE>
EXHIBIT 1(A)
WELLS FARGO & COMPANY
$-----------
_____% [SUBORDINATED] [NOTES] DUE ____
UNDERWRITING AGREEMENT
--------, --------
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Wells Fargo & Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), the
principal amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under the indenture identified in Schedule I hereto
(the "Indenture"), with _______________ as trustee (the "Trustee"). If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the registration
under the Act of the Securities. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form
of prospectus included in such registration statement relating to the
Securities in the form heretofore delivered to you. Such registration
statement, including all exhibits thereto (but excluding Form T-1), as
amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus" and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so supplemented) is
1
<PAGE>
hereinafter called the "Final Prospectus". Any preliminary form of the
Final Prospectus which has heretofore been filed pursuant to Rule 424
is hereinafter called the "Preliminary Final Prospectus". Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424(b) under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the Exchange Act and the respective rules thereunder and (ii) neither
the Registration Statement, as amended as of any such time, nor the
Final Prospectus, as amended or supplemented as of any such time, will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee, or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the
2
<PAGE>
purchase price set forth in Schedule I hereto, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Securities pursuant
to delayed delivery arrangements, the respective principal amounts of Securities
to be purchased by the Underwriters shall be as set forth in Schedule II hereto,
less the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. If so specified, the Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts, if any, are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not less than
the minimum principal amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I hereto. The Underwriters will not have
any responsibility in respect of the validity or performance of any Delayed
Delivery Contract.
The principal amount of Securities to be purchased by each Underwriter
as set forth in Schedule II hereto shall, in each case, be reduced by an amount
which shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth in Schedule
II hereto, except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in writing or by
telephone; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the aggregate principal amount set
forth in Schedule II hereto, less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for Underwriters'
Securities shall be made at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. The Securities will
be delivered by the
3
<PAGE>
Company to you in the form of global Securities, representing all of the
Securities, which will be deposited by you on behalf of the Underwriters, with
The Depository Trust Company, or its nominee, for credit to the respective
accounts of the Underwriters.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the Closing Date, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object promptly after notice thereof. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed
pursuant to Rule 424(b) under the Act not later than the close of
business on the second business day following the execution and
delivery of this Agreement. The Company will promptly advise the
Representatives (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424(b), (ii) when any amendment to
the Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. In the event of the
issuance of any stop order preventing or suspending the use of any
Preliminary Final Prospectus or Final Prospectus, the Company will use
promptly its best efforts to obtain its withdrawal.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company will promptly notify you and
will, upon your request, prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders an earnings statement or statements
of the
4
<PAGE>
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering, any fees charged by investment
rating agencies for the rating of the Securities and the expenses
incurred in distributing the Final Prospectus to the Underwriters.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required to complete the distribution of the
Securities; provided, however, that the Company shall not be required
to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date or such
earlier time as you may notify the Company, the Company will not,
without the consent of the Representatives, offer or sell, or announce
the offering of, any debt securities that are substantially similar to
the Securities and are covered by the Registration Statement or any
other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened by the Commission; and the Final Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) not later than
the close of business on the second business day following the
execution and delivery of this Agreement.
5
<PAGE>
(b) The Company shall have furnished to the Representatives
the opinion of Stanley S. Stroup, Executive Vice President and General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to
own its properties and conduct its business as described in
the Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; each of Norwest Bank Minnesota, N.A. ("Norwest Bank
Minnesota") and Wells Fargo Bank, N.A. ("Wells Fargo Bank") is
a national banking association duly chartered and is in good
standing under the National Bank Act; and WFC Holdings
Corporation ("WFC Holdings" and together with Norwest Bank
Minnesota and Wells Fargo Bank, the "Significant
Subsidiaries") is a duly organized and validly existing
corporation under the laws of the State of Delaware;
(ii) the Company and each Significant Subsidiary is
duly qualified to do business and is in good standing in all
jurisdictions which require such qualification wherein it owns
or leases any material properties or conducts any material
business or in which the failure to qualify could, in the
aggregate, have any material adverse effect upon the business,
condition or properties of the Company and its subsidiaries,
taken as a whole;
(iii) all of the outstanding shares of capital stock
of each Significant Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss.55) nonassessable, and all of the
outstanding shares of its capital stock are owned by the
Company free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iv) the Company's authorized equity capitalization
is as set forth in the Final Prospectus;
(v) to the best of such counsel's knowledge there are
no legal or governmental proceedings pending or threatened
which are required to be disclosed in the Prospectus, other
than as disclosed therein, and there is no contract or other
document of a character required to be described or referred
to in the Registration Statement or required to be filed as an
exhibit thereto
6
<PAGE>
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
description thereof or references thereto are correct;
(vi) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under, any indenture or
other agreement or instrument to which the Company or any
Significant Subsidiary is a party or bound, or any order or
regulation applicable to the Company or any Significant
Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any Significant Subsidiary; nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company;
(vii) the Securities conform to the description
thereof contained in the Final Prospectus;
(viii) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, as amended, and (assuming the
Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a valid and legally binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect) and subject to general equity principles;
and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in case of the
Underwriters' Securities, or by the purchasers therefor
pursuant to Delayed Delivery Contracts in the case of any
Contract Securities, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the
Indenture subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect) and subject to general equity principles;
(ix) the Registration Statement and any amendments
thereto have become effective under the Act; to the best
knowledge of such counsel, no stop order suspending the
7
<PAGE>
effectiveness of the Registration Statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or threatened; the Registration Statement, the
Final Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue dates (other
than the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration
Statement, or any amendment thereof, at the time it became
effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or
supplemented, includes any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(x) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company; and
(xi) no consent, approval, authorization or order of
any court or government agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be
required under the Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
States of Minnesota and Delaware or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of
counsel who are satisfactory to counsel for the Underwriters; and (B)
as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and its subsidiaries and public
officials.
(d) The Representatives shall have received from their counsel
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Indenture, any Delayed
Delivery Contracts, the Registration Statement, the Final Prospectus
and other related matters as the Representatives
8
<PAGE>
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President or any Executive Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that:
(i) the representations and warranties of the Company
in Section 2 hereof are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(f) At the Closing Date, KPMG LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the
Representatives and the Company, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Final Prospectus.
If (i) any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement
shall not have been fulfilled in all material respects when and as provided in
such Underwriting Agreement, or (ii) any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and their counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
9
<PAGE>
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (included reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party to the
extent set forth below, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives for use in
connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to
the confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the
10
<PAGE>
Final Prospectus as amended or supplemented). This indemnity agreement
will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 7.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it shall wish, jointly, with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party. In any such
proceeding, any indemnified party shall have the right to obtain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnified party
and the indemnifying party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
conflicts of interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate identified firm (in addition to any
identified local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by the Representatives that are
indemnified parties in the case of parties to be indemnified pursuant
to paragraph (a) of this Section 7 and by the Company in the case of
parties to be indemnified pursuant to paragraph (b) of this Section 7.
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its prior written consent, but if settled
with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
11
<PAGE>
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section
7 is due in accordance with its terms but is for any reason held by a
court to be unavailable on grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to
the sum of such discount and the purchase price of the Securities
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each
person who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to
clause (y) of this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have hereunder or otherwise
than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Securities set forth opposite their names in Schedule II hereto
bear to the aggregate amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
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<PAGE>
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on such Exchange
shall have been suspended or materially limited, (ii) a banking moratorium shall
have been declared either by Federal or Minnesota or New York State authorities
or (iii) there shall have occurred any outbreak or material escalation of
hostilities or declaration by the United States of national emergency or war,
the effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Representatives, impracticable to market the
Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing, either delivered by
hand, by mail or by facsimile, telex, telecopier, or telegram and confirmed to
the recipient, and any such notice shall be effective when received if sent to
the Representatives, at the address specified in Schedule I hereto, or if sent
to the Company, at 444 Market Street, MAC: 0195-171, San Francisco, California,
94111.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. Business Day. As used herein, the term "business day" shall mean
any day when the Commission's office in Washington, D.C. is normally open for
business.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
WELLS FARGO & COMPANY
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
- ------------------------------
By: __________________________
Name:
Title:
- ------------------------------
By: __________________________
Name:
Title:
- ------------------------------
By: __________________________
Name:
Title:
14
<PAGE>
SCHEDULE I
Underwriting Agreement dated ______, ____
Registration Statement No. 333-_____
Indenture: Indenture dated as of _______, ____, between the Company and
_____________________________________.
Representatives, including addresses:
Title, Purchase Price and Description of Securities:
Title: _____% [Subordinated] [Notes] due ____
Principal Amount: $___________
Interest Rate: _____%
Interest Payment Dates: ______ and ______ of each year, commencing
________________________, ____
Maturity: ________, ____
Denominations: The Securities will be issued in [fully registered]
form in denominations of $[1,000].
Price to Public: ______% plus accrued interest, if any, from
________________________, ____
<PAGE>
Purchase price (include type of funds, if other than Federal Funds, and
accrued interest or amortization if applicable): %, plus accrued
interest, if any, from ____________, ____, payable in immediately
available funds
Sinking fund provisions:
Redemption provisions:
Provisions regarding repayment at the option of Holders:
Closing Date, Time and Location: ________________, ____, ____ A.M., New York
City time, at the offices of ______________, ____, ____, ____.
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
<PAGE>
SCHEDULE II
Principal
Underwriter Amount
- ----------- ---------
<PAGE>
EXHIBIT 1(B)
WELLS FARGO & COMPANY
$____ DEPOSITARY SHARES
Each Representing [One Quarter] Share of
[CUMULATIVE] [NONCUMULATIVE] [CONVERTIBLE] [PREFERRED]
[PREFERENCE] STOCK, SERIES ___
(without par value)
UNDERWRITING AGREEMENT
[Date]
<PAGE>
--------, ----
[Names and Addresses of
Representatives]
Dear Sirs:
Wells Fargo & Company, a Delaware corporation (the "Company"), proposes
to issue up to _____ shares of its [Cumulative] [Noncumulative] [Convertible]
[Preferred] [Preference] Stock, Series ___, without par value, (the
"[Convertible] Preferred Shares"), of which _____ [Convertible] Preferred Shares
would be issued in connection with the sale of the Firm Shares (as hereinafter
defined) and up to _____ [Convertible] Preferred Shares would be issued in
connection with any sale of Additional Shares (as hereinafter defined).
The [Convertible] Preferred Shares will, when issued, be deposited by
the Company against delivery of Depositary Receipts ("Depositary Receipts") to
be issued by Norwest Bank Minnesota, N.A., as depositary (the "Depositary"),
under a Deposit Agreement (the "Deposit Agreement") among the Company, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder. Each Depositary Receipt will evidence one or more Depositary Shares
(as hereinafter defined), and each Depositary Share will represent [one-quarter]
of a [Convertible] Preferred Share.
[The Convertible Preferred Shares are convertible by the holders
thereof into [shares of common stock, par value $1 2/3 per share, of the Company
(the "Common Stock")] [the Company's _______________________ (the "Debt
Securities")], all as described in the Prospectus referred to below.]
The Company proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives") _____ of the Depositary Shares (the
"Firm Shares"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional _____ of the Depositary Shares (the
"Additional Shares") if and to the extent that the Representatives shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Depositary Shares granted to the Underwriters in Article II hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "Depositary Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the Convertible Preferred
Shares [and][,] the Depositary Shares [and the shares of Common Stock issuable
upon conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares], which
<PAGE>
registration statement has become effective, and will promptly file with the
Commission a prospectus supplement specifically relating to the [Convertible]
Preferred Shares [and][,] the Depositary Shares [and the Common Stock issuable
upon conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares] pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Act"). As used in this
Agreement, the term "Registration Statement" means such registration statement,
including exhibits, financial statements, schedules and documents incorporated
by reference therein (but excluding Form T-1), as amended to the date hereof.
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and][,] the Depositary Shares [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares] as filed with the
Commission pursuant to such Rule 424. The term "preliminary prospectus" means
any preliminary prospectus supplement specifically relating to the Convertible
Preferred Shares [and][,] the Depositary Shares [and the Common Stock issuable
upon conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares] together with the
Basic Prospectus. Any reference herein to any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein as of the date of such preliminary prospectus or the
Prospectus, as the case may be.
I.
The Company represents and warrants to each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect; and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, has the corporate power and authority
to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(c) Each of Norwest Bank Minnesota, N.A. and Wells Fargo Bank,
N.A. (the "Bank Subsidiaries") has been duly organized and is validly
existing as a national banking association under the laws of the United
States, and is duly
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qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(d) All of the outstanding shares of capital stock of each
Bank Subsidiary have been duly and validly authorized and issued and
are fully paid and (except as provided in 12 U.S.C. ss.55)
non-assessable, and all outstanding shares of such capital stock are
owned directly or indirectly by the Company free and clear of any
security interests, claims, liens or encumbrances.
(e) The authorized capital stock of the Company, the
Depositary Shares, the Depositary Receipts and the Deposit Agreement
conform as to legal matters to the descriptions thereof contained in
the Prospectus.
[(f) The shares of Common Stock outstanding prior to the
issuance of the Convertible Preferred Shares represented by the
Depositary Shares to be sold by the Company have been duly and validly
authorized and issued and are fully paid and non-assessable.]
(g) The [Convertible] Preferred Shares, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the
Deposit Agreement, have been duly authorized and, when the
[Convertible] Preferred Shares are issued and delivered in accordance
with the terms of this Agreement, the [Convertible] Preferred Shares
will be validly issued, fully paid and non-assessable, and the issuance
of such [Convertible] Preferred Shares is not subject to any preemptive
or similar rights.
[(h) The shares of Common Stock issuable upon conversion of
the Convertible Preferred Shares have been duly authorized and reserved
for issuance upon such conversion, and, if and when the Convertible
Preferred Shares are converted into shares of Common Stock in
accordance with the Certificate of Designations of Powers, Preferences
and Rights relating to the Convertible Preferred Shares (the
"Certificate of Designations"), such shares of Common Stock will be
validly issued, fully paid and non-assessable, and the issuance of such
shares of Common Stock will not be subject to any preemptive or similar
rights.]
[(i) The Debt Securities issuable upon conversion of the
Convertible Preferred Shares have been duly authorized, and, if and
when the Convertible Preferred Shares are converted into Debt
Securities in accordance with the Certificate of Designations of
Powers, Preferences and Rights relating to the Convertible Preferred
Shares (the "Certificate of Designations"), and such Debt Securities
are duly executed and delivered by the Company pursuant to the terms
3
<PAGE>
of this Agreement and the Certificate of Designations and authenticated
by the applicable trustee, such Debt Securities will be valid and
binding obligations of the Company enforceable in accordance with their
terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time and subject to
general equity principles.]
(j) Assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, each Depositary Share will
represent an interest in [one-quarter] of a validly issued,
outstanding, fully paid and non-assessable [Convertible] Preferred
Share; assuming due execution and delivery of the Depositary Receipts
by the Depositary pursuant to the Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company.
(m) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Certificate of Designations [of Powers, Preferences and Rights
relating to the Preferred Shares (the "Certificate of Designations")]
and the Deposit Agreement will not contravene any provision of
applicable law or conflict with or constitute a default under any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary nor will any such actions result in a violation of the
charter or by-laws of the Company; no consent, approval or
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Certificate of Designations and
the Deposit Agreement, except such as have been obtained under the Act
and such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Depositary
Shares.
(n) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
4
<PAGE>
(o) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any contracts or other documents that are required to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that are not
described, referred to or filed as required.
(p) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain, any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph (p) do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information concerning any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $_____ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _____ Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Article IV hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of
5
<PAGE>
Additional Shares (subject to such adjustments to eliminate fractional shares as
the Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of Firm Shares set
forth in Schedule I hereto opposite the name of such Underwriter bears to the
total number of Firm Shares set forth in Schedule I hereto.
[The Company hereby agrees that, without the prior written consent of
the Representatives, it will not file any registration statement with the
Commission in respect of any shares of Common Stock of the Company or offer,
sell, contract to sell or otherwise dispose of any shares of such Common Stock
or any securities convertible into or exercisable or exchangeable for such
Common Stock for a period of _____ days after the date of this Agreement, other
than (i) the Convertible Preferred Shares, (ii) the shares of Common Stock
issuable upon conversion of the Convertible Preferred Shares, (iii) any shares
of such Common Stock sold upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (iv) any shares of such
Common Stock registered, offered or issued, or options in respect of such Common
Stock granted, in connection with any employee benefit plans of the Company or
any of its subsidiaries (including employee benefit plans assumed by the Company
or any of its subsidiaries in connection with an acquisition by the Company),
(v) any shares of such Common Stock registered, offered or issued in connection
with the Company's dividend reinvestment plan or (vi) any shares of such Common
Stock registered, offered or issued in connection with an acquisition by the
Company.]
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Depositary Shares as soon
after this Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the Depositary Shares are to be offered
to the public initially at $_____ per Depositary Share (the public offering
price) plus accrued dividends, if any, and to certain dealers selected by you at
a price that represents a concession not in excess of $.__ per Depositary Share
under the public offering price, and that the Underwriters may allow, and such
dealers may reallow, a concession, not in excess of $.__ per Depositary Share,
to any Underwriter or to certain other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of ____________, _____, New York,
New York, at 10:00 A.M., local time, on _________, _____, or at such other time
on the same or such other date, not later than _____________, ____, as shall be
designated in writing by you. The time and date of such delivery and payment are
hereinafter referred to as the Closing Date.
Delivery of any Additional Shares shall be made, against payment
therefor in immediately available funds, at the office of __________________,
________________, New York, New York, at 10:00 A.M., local time, on such date
(which may be the same as the
6
<PAGE>
Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be designated in a written notice from the Representatives to the
Company of their determination, on behalf of the Underwriters, to purchase a
number, specified in said notice, of Additional Shares, or on such other date,
in any event not later than __________, ______, as shall be designated in
writing by the Representatives. The time and date of such delivery and payment
are hereinafter referred to as the Option Closing Date. The notice of the
determination to exercise the option to purchase Additional Shares and of the
Option Closing Date may be given at any time within 30 days after the date of
this Agreement.
Payment for the Firm Shares and Additional Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing the Firm Shares or Additional Shares, as the case may be,
registered in such names and in such denominations as you shall request in
writing not later than two full business days prior to the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
connection with the transfer of the Depositary Shares to the Underwriters duly
paid.
V.
The several obligations of the Underwriters hereunder to purchase
Depository Shares on the Closing Date are subject to the following conditions:
(a) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus, that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the Depositary
Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a) above and to the
effect that the representations and warranties of the Company contained
in this Agreement shall be true and correct as of the Closing Date and
the Company shall have performed all of its obligations to be performed
hereunder on or prior to the Closing Date.
(c) You shall have received on the Closing Date an opinion of
Stanley S. Stroup, Esq., Executive Vice President and General Counsel
of the Company, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the
7
<PAGE>
State of Delaware, is duly registered as a bank holding
company under the Bank Holding Act of 1956, has the corporate
power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) each Bank Subsidiary has been duly organized and
is validly existing as a national banking association under
the laws of the United States, and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of the business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of
each Bank Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C.
ss.55) non-assessable, and all outstanding shares of such
capital stock are owned directly or indirectly by the Company
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iv) the authorized capital stock of the Company, the
Depositary Shares, the Depositary Receipts and the Deposit
Agreement conform as to legal matters to the descriptions
thereof contained in the Prospectus;
[(v) the shares of Common Stock outstanding prior to
the issuance of the Convertible Preferred Shares have been
duly and validly authorized and are issued and are fully paid
and non-assessable;]
(vi) the [Convertible] Preferred Shares, and the
deposit of [Convertible] Preferred Shares by the Company in
accordance with the Deposit Agreement, have been duly
authorized and, when issued and delivered in accordance with
the terms of this Agreement, the [Convertible] Preferred
Shares will be validly issued, fully paid and non-assessable,
and the issuance of such
8
<PAGE>
[Convertible] Preferred Shares is not subject to any
preemptive or similar rights;
[(vii) the shares of Common Stock issuable upon
conversion of the Convertible Preferred Shares have been duly
authorized and reserved for issuance upon such conversion,
and, if and when the Convertible Preferred Shares are
converted into shares of Common Stock in accordance with the
Certificate of Designations, such shares of Common Stock will
be validly issued, fully paid and non-assessable, and the
issuance of such shares of Common Stock will not be subject to
any preemptive or similar rights;]
[(viii) the Debt Securities issuable upon conversion
of the Convertible Preferred Shares have been duly authorized,
and, if and when the Convertible Preferred Shares are
converted into Debt Securities in accordance with the
Certificate of Designations, and such Debt Securities are duly
executed and delivered by the Company pursuant to the terms of
this Agreement and the Certificate of Designation and
authenticated by the appropriate trustee, such Debt Securities
will be valid and binding obligations of the Company
enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time and subject to
general equity principles;]
(ix) assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary, each
Depositary Share will represent an interest in [one-quarter]
of a validly issued, outstanding, fully paid and
non-assessable [Convertible] Preferred Share; assuming due
execution and delivery of the Depositary Receipts by the
Depositary pursuant to the Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(x) this Agreement has been duly authorized, executed
and delivered by the Company;
(xi) the Deposit Agreement has been duly authorized
and delivered by the Company and is a valid and binding
agreement of the Company;
9
<PAGE>
(xii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Certificate of Designations and the
Deposit Agreement will not contravene any provision of
applicable law or conflict with or constitute a default under
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, nor will any of such actions
result in a violation of the charter or by-laws of the
Company; no consent, approval or authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Certificate of Designations and the
Deposit Agreement, except such as have been obtained under the
Act and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and
sale of the Depositary Shares by the Underwriters;
(xiii) the statements (x) in the Basic Prospectus
under "Description of Preferred Stock", "Description of
Depositary Shares", ["Description of Common Stock",]
["Description of Debt Securities",] and "Plan of Distribution"
and (y) in the prospectus supplement specifically relating to
the [Convertible] Preferred Shares [and][,] the Depositary
Shares [and the Common Stock issuable upon conversion of the
Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares]
under "Description of Capital Stock", "Description of
Depositary Shares" and "Underwriters", and (z) under the
caption "Regulation and Supervision" in the Company's latest
Annual Report on Form 10-K that is incorporated by reference
in the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(xiv) after due inquiry, such counsel does not know
of any legal or governmental proceeding pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any contracts or other documents that are
required to be
10
<PAGE>
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as
required; and
(xv) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
the Prospectus (except for financial statements and schedules
as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects
with the Exchange Act and the rules and regulations of the
Commission thereunder, (2) is of the opinion that the
Registration Statement and the Prospectus and any supplements
or amendments thereto (except for financial statements and
schedules as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Act and the rules and regulations of the Commission thereunder
and (3) believes that (except for financial statements and
schedules as to which such counsel need not express any
belief) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, included therein at
the time the Registration Statement became effective did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
___________________________, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in subparagraphs (vi),
(vii), (viii), (ix), (x) and (xiii) [(but only as to the statements (A)
in the Basic Prospectus under "Description of Preferred Shares",
"Description of Depositary Shares", "Description of Common Stock",
"Description of Debt Securities" and "Plan of Distribution", and (B) in
the prospectus supplement specifically relating to the [Convertible]
Preferred Shares [and[,] the Depositary Shares [and the Common Stock
issuable upon conversion of the Convertible Preferred Shares] [and the
Debt Securities issuable upon conversion of the Convertible Preferred
Shares under "Description of Capital Stock", "Description of Depositary
Shares" and "Underwriters")] and clauses (2) and (3) of (xv) of
paragraph (c) above.
With respect to subparagraph (xv) of paragraph (c) above,
Stanley S. Stroup, Esq. may state that his opinion and belief are based
on his participation in the preparation of the Registration Statement
and the Prospectus and any
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<PAGE>
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to clauses (2) and (3) of subparagraph (xv) of paragraph (c)
above, _________________ may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendments of supplements thereto
(other than the documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
(e) You shall have received on the date of this Agreement a
letter dated such date and also on the Closing Date a letter dated the
Closing Date, in each case in form and substance satisfactory to you
and the Company, from KPMG LLP, independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto
but including documents incorporated therein by reference) and, during
the period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated therein by reference and any
supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus prior to the Closing Date or the Option
Closing Date, as the case may be, to furnish you a copy of each such
proposed amendment or supplement, and to file no such proposed
amendment or supplement to which you reasonably object.
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(c) If, during such period after the first date of the public
offering of the Depositary Shares as in the opinion of your counsel the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or a dealer, any event shall occur as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein in light of the circumstances
under which they were made not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with the Act or the
Exchange Act, forthwith to prepare and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Depositary Shares may have been sold
by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus which will
correct such statement or omission or will effect such compliance.
(d) To endeavor to qualify the Depositary Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection therewith as well as all fees
payable in connection with the review (if any) of the offering of the
Depositary Shares by the National Association of Securities Dealers,
Inc.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering the
twelve-month period ending __________, _____, that satisfies the
provisions of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder.
[(f) To endeavor to list the Depositary Shares on the New York
Stock Exchange.]
VII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein; provided, however, that such indemnity with respect to the Basic
Prospectus or any preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person
13
<PAGE>
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Depositary Shares which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) excluding documents incorporated therein
by reference at or prior to the confirmation of the sale of such Depositary
Shares to such person in any case where such delivery is required by the Act and
the untrue statement or omission of a material fact contained in the Basic
Prospectus or any preliminary prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the indemnifying party) in writing
and the indemnifying party will be entitled to participate therein, and to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate identified firm (in addition to any
identified local counsel) for all such indemnified parties, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by __________________.
In the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
14
<PAGE>
If the indemnification provided for in the first or second paragraph of
this Article VII is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
Depositary Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and of the Underwriters in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate public offering price of
the Depositary Shares. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Depositary Shares.
VIII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on the New York Stock Exchange,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New
15
<PAGE>
York State authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or declaration by the United States of national
emergency or war that, in your judgment, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event
singly or together with any other such event makes it, in your judgment,
impracticable to market the Depositary Shares on the terms and in the manner
contemplated in the Prospectus.
IX.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Depositary
Shares that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Depositary Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Depositary Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
number of Firm Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Depositary Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Depositary Shares that any Underwriter has
agreed to purchase pursuant to Article II be increased pursuant to this Article
IX by an amount in excess of one-ninth of such number of Depositary Shares
without the written consent of such Underwriter. If, on the Closing Date, or the
Option Closing Date, as the case may be, any Underwriter or Underwriters shall
fail or refuse to purchase Depository Shares and the aggregate number of
Depositary Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Depositary Shares to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such Depositary Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date or the Option Closing Date, as the
case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
16
<PAGE>
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
WELLS FARGO & COMPANY
By___________________________________
Its_____________________________
Accepted, ________, ____
- ------------------------------------
By__________________________________
Its____________________________
- ------------------------------------
By__________________________________
Its____________________________
Each acting severally on behalf of
itself and the several Underwriters
named herein.
17
<PAGE>
SCHEDULE I
Number of
Underwriter Depositary Shares
----------- -----------------
Total
<PAGE>
EXHIBIT 1(C)
[Series __ Notes]
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
---------------
[**List Agents]
Dear Sirs:
Wells Fargo & Company, a Delaware corporation (the "Company"), confirms
its agreement with _____________________________________________ (individually,
an "Agent", and collectively, the "Agents") with respect to the issue and sale
by the Company of its Medium-Term Notes described herein (the "Notes"). The
Notes are to be issued pursuant to an indenture (the "Indenture") dated as of
____________________, as amended from time to time, between the Company and
__________________________________, as trustee (the "Trustee"). As of the date
hereof, the Company has authorized the issuance and sale of up to U.S.
$______________ aggregate initial public offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies or foreign currency units as the Company shall designate at the time
of issuance) of Notes through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such additional Notes may be
sold through or to the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and any Agent) to any Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-_________) for the
registration of securities, including the Notes, under the Securities Act of
1933, as amended, (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the SEC under the
1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement (and
any further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus
<PAGE>
constituting a part thereof, and any prospectus supplements relating to the
Notes, including all documents incorporated therein by reference, as from time
to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the Agents
for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf or through any of its affiliated entities and other
agents, the Company hereby appoints the Agents as the agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that,
except as otherwise contemplated herein, whenever the Company determines to sell
Notes directly to any Agent as principal for resale to others, it will enter
into a Terms Agreement (hereafter defined) relating to such sale in accordance
with the provisions of Section 3(b) hereof. In addition, an Agent may offer the
Notes it has purchased as principal to other dealers and may sell Notes to any
dealer at a discount, and, unless otherwise specified in an applicable Pricing
Supplement, such discount allowed to any dealer will not be in excess of the
discount to be received by such Agent. No Notes that the Company has agreed to
sell pursuant to this Agreement shall be deemed to have been purchased and paid
for or sold by the Company until such Notes shall have been delivered to the
purchaser thereof against payment by such purchaser. The Company may accept
offers to purchase Notes through an agent other than an Agent; provided,
however, that the Company shall give each of the Agents notice of its decision
to accept such an offer to purchase Notes promptly following such acceptance.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
receipt of instructions from the Company, each of the Agents will use its
reasonable efforts to solicit purchases of such principal amount of the Notes as
the Company and such Agent shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of such
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
2
<PAGE>
(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of the Notes on behalf of the Company and in performing its other
obligations hereunder (other than with respect to any purchase by any Agent as
principal pursuant to a Terms Agreement), each Agent shall act solely as agent
for the Company and not as principal. Each Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company,
provided, however, that such Agent shall not have any liability to the Company
in the event any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall hold such Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Company. The Agents
shall not have any obligation to purchase Notes from the Company as principal,
but any Agent may agree from time to time to purchase Notes as principal. Any
such purchase of Notes by an Agent as principal shall be made in accordance with
Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree that any Notes the
placement of which any Agent arranges shall be placed by such Agent, and any
Notes purchased by such Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through such Agent as agent or to such Agent as
principal), as of the date of each delivery of Notes (whether through such Agent
as agent or to such Agent as principal) (the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective or any Annual Report on Form 10-K is filed by the Company
with the SEC and as of each Representation Date, will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus as of the date hereof does not,
and as of each Representation Date will not, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this
3
<PAGE>
subsection shall not apply to (A) that part of the Registration
Statement which constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act and (B) statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
of the Agents expressly for use in the Registration Statement or
Prospectus.
(ii) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other information
in the Prospectus, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(iii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement and any Terms Agreement have
been duly authorized and, upon execution and delivery by each Agent,
will be a valid and binding agreement of the Company; the Indenture has
been duly authorized and, upon execution and delivery by the Trustee,
will be a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally, or
by general equity principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign currency or
foreign currency unit judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; the establishment
of the Medium-Term Note Program, Series __, of the Company has been
duly authorized; when the terms of a particular issuance of the Notes
have been established in accordance with the Indenture, and such Notes
are issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms
Agreement, the Notes will have been duly authorized, executed and
delivered and will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate or
4
<PAGE>
exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes and the Indenture will be
substantially in the form heretofore delivered to each Agent and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the
benefits provided by the Indenture.
(iv) Florida Blue Sky Disclosure. The Company has complied
with all provisions of Section 517.075, Florida Statutes (Chapter
92-198, Laws of Florida).
(v) Investment Company Act of 1940. Neither the Company nor
any subsidiary of the Company is subject to registration or regulation
under the Investment Company Act of 1940, as amended.
(vi) Legal Proceedings; Contracts. Except as may be set forth
in the Registration Statement or Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or might materially
affect the properties or assets thereof; and there are no contracts or
documents of the Company or any of its subsidiaries which are required
to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been so filed.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to any Agent or to counsel for any Agent in connection
with an offering of Notes or the sale of Notes to such Agent as principal shall
be deemed a representation and warranty by the Company to such Agent as to the
matters covered thereby on the date of such certificate.
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company, to use its reasonable
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, such Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised such Agent that such
solicitation may be resumed.
The Company agrees to pay the presenting Agent (or jointly to two or
all Agents if such solicitation is jointly made) on the settlement date
applicable to such Note a commission equal
5
<PAGE>
to the applicable percentage of the principal amount of each Note sold by the
Company as a result of a solicitation made by such Agent as set forth in
Schedule A hereto.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the applicable Agent and set forth
in a pricing supplement to the Prospectus (a "Pricing Supplement") to be
prepared following each acceptance by the Company of an offer for the purchase
of Notes. All Notes sold through any Agent as agent will be sold at 100% of
their principal amount unless otherwise agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement, if confirmed in writing by facsimile
transmission or otherwise) between an Agent and the Company is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and an Agent. Each such Terms Agreement,
whether oral or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit A hereto. An Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. An Agent
may utilize a selling or dealer group in connection with the resale of the Notes
purchased and the Agents may sell any such Notes to any dealers at a discount
not in excess of the discount payable to the Agents by the Company. Such Terms
Agreement shall also specify the requirements for the officer's certificate,
opinions of counsel and comfort letter pursuant to Sections 7(b), 7(c) and 7(d)
hereof.
(c) Administrative Procedures. The Company and the Agents hereby agree
to the administrative procedures with respect to the sale of Notes set forth in
Annex A hereto (the "Procedures"). Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify each Agent
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the
6
<PAGE>
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give each
Agent notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise; the Company will not file any amendment or
supplement to the Registration Statement or the Prospectus after the date of any
Terms Agreement and prior to the related Settlement Date which shall be
disapproved by any Agent party to such Terms Agreement promptly after reasonable
notice thereof unless in the opinion of counsel to the Company such amendment or
supplement is required by law, provided, however, that the foregoing requirement
shall not apply to the Company's periodic filings with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, copies of which filings the
Company will cause to be delivered to the Agents promptly after being
transmitted for filing with the SEC.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to each Agent as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as such Agent may
reasonably request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably request
so long as the Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agent and will file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act not later than the time period specified therein.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act
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or the 1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to each Agent to cease the solicitation of offers to purchase the Notes
in such Agent's capacity as agent and to cease sales of any Notes such Agent may
then own as principal pursuant to a Terms Agreement, and the Company will
promptly prepare and file with the SEC such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or immediately after
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to each Agent, confirmed in writing.
(g) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
any Agent may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise each Agent of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose and will promptly
notify each Agent if at any time the Company must make or amend a disclosure
required by Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(i) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement with any Agent, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without such Agent's prior consent, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with terms substantially similar to
those of the Notes which are the subject of such Terms Agreement (other
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than the Notes that are to be sold pursuant to such Terms Agreement and
commercial paper in the ordinary course of business).
(k) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this Section
with respect to any Agent during any period from the time (i) such Agent shall
have suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company and (ii) such Agent shall not then have a
legal obligation to deliver a prospectus with respect to the sale by it of Notes
which it has acquired as principal pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or such Agent shall have such legal obligation to deliver a
prospectus. Upon the request of the Company, each Agent will inform the Company
whether it has the legal obligation to deliver a prospectus with respect to the
sale by it of Notes which it has acquired under a Terms Agreement.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to solicit offers to purchase the Notes
as agent of the Company, the obligations of any purchasers of the Notes sold
through any Agent as agent, and any obligation of any Agent to purchase Notes
pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, each Agent shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to such Agent:
1. Opinion of Company Counsel. The opinion of Stanley S.
Stroup, Executive Vice President and General Counsel of the Company, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement, and is
duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; and each of Norwest
Bank Minnesota, National Association ("Norwest Bank
Minnesota"), and Wells Fargo Bank, N.A. ("Wells Fargo Bank"),
is a national banking association duly chartered and is in
good standing under the National Bank Act; and WFC Holdings
Corporation ("WFC Holdings" and together with Norwest Bank
Minnesota and Wells Fargo Bank, the "Significant
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Subsidiaries") is duly organized and validly existing in good
standing under the laws of the State of Delaware.
(iii) Each of the Company and each Significant
Subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
business, condition or properties of the Company and its
subsidiaries, taken as a whole.
(iv) All of the issued and outstanding capital stock
of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and (except as provided in 12
U.S.C. ss.55) non-assessable, and is owned by the Company,
free and clear of any perfected security interest and, to the
best of such counsel's knowledge of any other security
interests, claims, liens or encumbrances.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid and
binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equitable principles, and except
further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign currency
or foreign currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or
the making of payments outside the United States.
(vii) The Notes are in due and proper form and have
been duly established in conformity with Section 301 of the
Indenture. When the specific terms of an issue of Notes have
been fixed by an authorized officer of the Company by
executing and delivering to the Trustee an authentication
certificate supplemental to an officers'
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certificate, such Notes will be duly authorized for issuance,
offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the
consideration therefor, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
in foreign currency or currency units or payments outside the
United States, and each holder of Notes will be entitled to
the benefits of the Indenture.
(viii) The statements in the Prospectus under the
captions "Description of Debt Securities", "Plan of
Distribution" and "Description of Notes", insofar as they
purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of
such provisions.
(ix) The Indenture is qualified under the 1939 Act.
(x) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or, to the best of such counsel's
knowledge, threatened by the SEC; and any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b)
under the 1933 Act.
(xi) At the time the Registration Statement became
effective, the Registration Statement (other than financial
statements, schedules and other financial data included in the
documents incorporated by reference therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act
and the regulations under each of those Acts.
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(xii) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending or threatened
which are required to be disclosed in the Prospectus, other
than those disclosed therein.
(xiii) The execution and delivery of this Agreement
or of the Indenture, or the consummation by the Company of the
transactions contemplated by this Agreement and the Notes and
the incurrence of the obligations therein contemplated, will
not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Significant Subsidiary pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any
Significant Subsidiary is a party or to which any of the
property or assets of the Company or any Significant
Subsidiary is subject, or any law, administrative regulation
or administrative or court decree known to such counsel to be
applicable to the Company of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over
the Company; nor will such action result in any violation of
the provisions of the charter or by-laws of the Company.
(xiv) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references
thereto are correct.
(xv) No consent, approval, authorization, order or
decree of any court or governmental agency or body including
the SEC is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities laws.
(xvi) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder (other than financial
statements, schedules and other financial data included
therein, as to which no opinion need be rendered).
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2. Opinion of Counsel to the Agents. The opinion of
_____________ ______________, counsel to the Agents, covering the
matters referred to in subparagraph (1) under the subheadings (i), (v),
(vi), (vii), (ix), (x) and (xi) above.
3. In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Mr. Stroup and _________________________ shall
each additionally state that nothing has come to his or their attention
that would lead him or them to believe that the Registration Statement
(other than financial statements, schedules or other financial data
included or incorporated by reference therein, as to which no statement
need be made), at the time it became effective, and if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been
filed by the Company with the SEC subsequent to the effectiveness of
the Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the
Prospectus, as amended or supplemented at the date hereof, or (if such
opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement and
at the Settlement Date with respect thereto, as the case may be,
contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) Officer's Certificates. At the date hereof the Agents shall have
received a certificate of the Chairman of the Board, the President or any
Executive Vice President and the principal financial or accounting officer of
the Company, provided, however, that no person shall sign such certificate in
more than one official capacity, dated as of the date hereof, to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, general business affairs
or business prospects of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received
a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in form and
substance satisfactory to the Agents and the Company, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
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(d) Other Documents. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents shall have
been furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of any Agent, any applicable Terms Agreement) may be terminated by any
Agent insofar as this Agreement relates to such Agent by notice to the Company
at any time and any such termination shall be without liability of any party to
any other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through any Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the presenting Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes, and each delivery of Notes to
any Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement are true and correct at the time of such acceptance or sale, as the
case may be, and an undertaking that such representations and warranties will be
true and correct at the time of delivery to the purchaser or his agent, or to
such Agent, of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supplemented to each such time).
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(b) Subsequent Delivery of Certificates. If so requested by such Agent,
each time that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement, and other than by an amendment
or supplement which relates exclusively to an offering of securities other than
the Notes) or there is filed with the SEC any document incorporated by reference
into the Prospectus, or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished to such Agent forthwith a certificate
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form satisfactory to such Agent to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were last
furnished to such Agent are true and correct at the time of such amendment,
supplement, filing or sale, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement or solely for the
inclusion of additional financial information, and other than by an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes) or there is filed with the SEC any document incorporated by reference
into the Prospectus, or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent and to counsel to
such Agent a written opinion of the General Counsel of the Company, or other
counsel satisfactory to such Agent, dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and substance satisfactory to
such Agent, of the same tenor as the opinion referred to in Section 5(a)(1)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion; or, in lieu of such opinion, counsel last furnishing such opinion to
such Agent shall furnish each Agent with a letter to the effect that the Agents
may rely on such last opinion to the same extent as though it was dated the date
of such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance). Each time that the Company files with the SEC an Annual Report on
Form 10-K that is incorporated by reference into the Prospectus, counsel to the
Agents shall furnish to each Agent a written opinion dated the date of such
filing of the same tenor as the opinion referred to in Section 5(a)(3) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish each Agent with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
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(d) Subsequent Delivery of Comfort Letters. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information, or there is
filed with the SEC any document incorporated by reference into the Prospectus
which contains additional financial information, or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to any Agent pursuant to a
Terms Agreement, the Company shall cause KPMG Peat Marwick LLP forthwith to
furnish each Agent a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same general tenor as the letter
referred to in Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of such
letter, and with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company; provided, however, that if the Registration Statement or the
Prospectus is amended or supplemented solely to include financial information as
of and for a fiscal quarter, KPMG Peat Marwick LLP may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement.
SECTION 8. Indemnification.
Indemnification of the Agents. The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls each Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or the
Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the Agents
to the extent set forth below) reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
(b) Indemnification of Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) General. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this Section
8, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing,
and the indemnifying party shall be entitled to participate therein and, to the
extent it shall wish, jointly, with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
the indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
identified separate firm (in addition to any identified local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the Agents
that are indemnified parties in the case of parties to be indemnified pursuant
to paragraph (a) of this Section 8 and by the Company in the case of parties to
be indemnified pursuant to paragraph (b) of this Section 8. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its prior written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity
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could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and each Agent shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and each Agent, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls any Agent within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this
Agreement;
(c) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any Calculation
Agent or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the
Agents incurred in connection with establishment of the program
contemplated hereby and the transactions contemplated hereby other than
in connection with the sale of Notes
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to an Agent as principal pursuant to a Terms Agreement (unless so
provided in such Terms Agreement);
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation
of any Blue Sky Survey and any Legal Investment Survey;
(g) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to the
Agent of copies of the Indenture and all supplements and amendments
thereto;
(i) any fees charged by rating agencies for the rating of the
Notes;
(j) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Agent or any controlling person of any Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the
Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time, by either the Company
or any Agent
19
<PAGE>
(insofar as this Agreement relates to such Agent) upon the giving of 30 days'
written notice of such termination to the other party hereto.
(b) Termination of a Terms Agreement. Any Agent may terminate any Terms
Agreement, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities involving the United States the effect of which is
such as to make it, in the judgment of such Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (ii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Notes are denominated or
payable, or (iii) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of any
applicable Terms Agreement shall have been lowered since that date or if any
such rating agency shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any debt
securities of the Company, or (iv) if there has occurred any material adverse
change in the condition, financial or otherwise, in the business affairs or
business prospects of the Company and its subsidiaries, taken as a whole,
whether or not in the ordinary course of business.
(c) General. In the event of any such termination, none of the parties
will have any liability to the other parties hereto, except that (i) each Agent
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(a) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(g) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 15 hereof shall remain in effect.
20
<PAGE>
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Wells Fargo & Company
444 Market Street
MAC: 0195-171
San Francisco, California 94111
If to the Agents:
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon each
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
21
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agent and the Company in accordance with its terms.
Very truly yours,
WELLS FARGO & COMPANY
By:_________________________________
Name:
Title:
Accepted:
22
<PAGE>
SCHEDULE A
As compensation for the services of any Agent hereunder, the Company
shall pay it, on a discount basis, a commission for the sale of each Note equal
to the principal amount of such Note multiplied by the appropriate percentage
set forth below:
MATURITY RANGES PERCENT OF PRINCIPAL AMOUNT
- --------------- ---------------------------
From 9 months to less than 1 year...........
From 1 year to less than 18 months..........
From 18 months to less than 2 years.........
From 2 years to less than 3 years...........
From 3 years to less than 4 years...........
From 4 years to less than 5 years...........
From 5 years to less than 7 years...........
From 7 years to less than 10 years..........
From 10 years to less than 15 years.........
From 15 years to less than 20 years.........
From 20 years to 30 years...................
More than 30 years.......................... As agreed at the time
of sale
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent and
the Company pursuant to each Terms Agreement:
Principal Amount: $_________________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis applicable to each
interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent
Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and Original Issue
Discount Fixed Rate Notes, any terms required to be established by the
Internal Revenue Code of 1986, as amended
If Foreign Currency Notes:
Interest rate or interest rate basis
Authorized denominations (including integral multiples) in the
specified currency
Exchange rate agent
Specified currency account (if holder elects to receive
payments in other than U.S. dollars by wire transfer)
<PAGE>
If Redeemable:
Redemption Date
Redemption Prices
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ___%
Price to Public: ___%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Payment of Expenses
Syndicate Provisions
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement
Stand-off Agreement pursuant to Section 4(j) of the
Distribution Agreement
A-2
<PAGE>
ANNEX A
WELLS FARGO & COMPANY
Administrative Procedures
These Administrative Procedures relate to the Notes defined in the
Distribution Agreement, dated ____________ (the "Distribution Agreement"), among
Wells Fargo & Company (the "Company") and _____________________ (together, the
"Agents"), to which these Administrative Procedures are attached as Annex A.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture. To the extent any procedure set forth below
conflicts with the provisions of the Notes, the Indenture, the Distribution
Agreement or the applicable Terms Agreement, the relevant provisions of the
Notes, the Indenture, the Distribution Agreement and the applicable Terms
Agreement shall control.
An Agent, in relation to a purchase of a Note by a purchaser solicited
by such Agent, is referred to herein as the "Selling Agent" and, in relation to
a purchase of a Note by such Agent as principal pursuant to a Terms Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Certain duties of the Trustee hereunder may be performed by Norwest
Bank Minnesota, N.A., as Issuing, Paying & Authenticating Agent, and other duly
appointed agents of the Trustee. The Calculation Agent will be Norwest Bank
Minnesota, N.A. Each Note will be issued only in fully registered form, without
coupons, and will be represented by either a global security (a "Global
Security") delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Note, except as provided
in the Indenture.
Book-Entry Securities, which may be payable only in U.S. dollars, will
be issued in accordance with the Administrative Procedure set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures and Certificated Securities will be issued in accordance
with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company, Norwest Bank Minnesota,
<PAGE>
N.A., as Issuing Agent, and Norwest Bank Minnesota, N.A., as Paying Agent to
DTC, dated the date hereof, and a Medium-Term Note Certificate Agreement between
the Trustee and DTC dated as of ____________, as amended (the "Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance:
On any date of settlement (as defined under "Date of Settlement" below)
for one or more Book-Entry Securities, the Company will issue a single Global
Security representing up to U.S. $150,000,000 principal amount of all such Notes
that have the same Original Issue Date, Stated Maturity Date and other terms.
Each Global Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear an "Interest
Accrual Date," which will be (i) with respect to an original Global Security (or
any portion thereof), its original issuance date and (ii) with respect to any
Global Security (or any portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or stolen Global Security, the
most recent Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security (or if no such payment or
provision has been made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such subsequently issued
Global Security. No Global Security will represent any Certificated Security.
Denominations:
Book-Entry Securities will be issued in principal amounts of U.S.
$100,000 or any amount in excess thereof that is an integral multiple of U.S.
$1,000. Global Securities will be denominated in principal amounts not in excess
of U.S. $150,000,000. If one or more Book-Entry Securities having an aggregate
principal amount in excess of $150,000,000 would, but for the preceding
sentence, be represented by a single Global Security, then one Global Security
will be issued to represent each U.S. $150,000,000 principal amount of such
Book-Entry Security or Securities and an additional Global Security will be
issued to represent any remaining principal amount of such Book-Entry Security
or Securities. In such a case, each of the Global Securities representing such
Book-Entry Security or Securities shall be assigned the same CUSIP number.
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
2
<PAGE>
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale Information")
to the Company by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate, the
Interest Payment Dates, the initial Interest Payment Date and
whether such Security is an Amortizing Security, and if so,
the amortization schedule;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) If payments thereon are to be determined by reference to an
index, the relevant provisions relating thereto;
(7) Issue Price;
(8) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(9) Net Proceeds to the Company;
3
<PAGE>
(10) If a redeemable or repayable Book-Entry Security, provisions
relating to such redemption or repayment;
(11) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement;
(14) Selling Agent or Purchasing Agent;
(15) Original Issue Discount provisions, if any;
[(16) Whether the Book-Entry Security is a Renewable Security, and
if it is a Renewable Security, the Initial Maturity Date and
the Final Maturity Date;]
[(17) Whether the Company has the option to extend the Original
Maturity Date of the Book-Entry Security, and, if so, the
Final Maturity Date of such Book-Entry Security;]
4
<PAGE>
[(18) Whether the Company has the option to reset the Interest Rate,
the Spread or the Spread Multiplier of the Book-Entry
Security; and]
(19) Any other applicable terms.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number as soon as
practicable.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC, and DTC shall forward such information to such Agent and Standard & Poor's
Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by DTC on behalf
of the Selling Agent or Purchasing Agent, as the case may be;
(5) Whether such Security is an Amortizing Security (by an
appropriate notation in the comments field of DTC's
Participant Terminal System);
(6) The interest payment period; and
(7) Initial Interest Payment Date for such Book-Entry Security.
D. The Trustee will complete the Global Security, in the form
previously approved by the Company, the Agents and the Trustee.
E. The Trustee will authenticate the Global Security representing such
Book-Entry Security.
F. DTC will credit such Book-Entry Security to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Book-Entry
Security to the Trustee's participant account and credit such Book-Entry
Security to such Agent's participant account
5
<PAGE>
at DTC, and (ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Book-Entry Security
less such Agent's commission. The entry of such a deliver order shall constitute
a representation and warranty by the Trustee to DTC that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
H. Unless the relevant Agent is the end purchaser of such security,
such Selling or Purchasing Agent, as the case may be, will enter an SDFS deliver
order through DTC's Participant Terminal System instructing DTC (i) to debit
such Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
J. Upon confirmation of receipt of funds, the Trustee will transfer to
the Company's account, account number ___________, maintained at
____________________, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement Procedure "G".
K. Unless the relevant Agent is the end purchaser of such security,
such Selling or Purchasing Agent, as the case may be, will confirm the purchase
of such Book-Entry Security to the purchaser either by transmitting to the
participants with respect to such Book-Entry Security a confirmation order or
orders through DTC's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. At any time upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
M. DTC will, at any time, upon request of the Company or the Trustee,
promptly furnish to the Company or the Trustee a list of the names and addresses
of the participants for whom DTC has credited Book-Entry Securities.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Security and
arrange to have delivered to the Selling Agent or Purchasing Agent, as the case
may be, such numbers of such Pricing Supplement as the Agent may reasonably
request, not later than 11:00 a.m., New York City time, on the Business Day
following the Trade Date (as defined below). The Company will
6
<PAGE>
arrange to file a copy of the Pricing Supplement with the Commission not later
than the close of business of the Commission on the second Business Day
following the date on which such Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will provide a copy of such Pricing Supplement to each investor or
purchaser of the relevant Book-Entry Security or its agent. Pursuant to Rule 434
under the Securities Act, the Pricing Supplement may be delivered separately
from the Prospectus. Outdated Pricing Supplements (other than those retained for
files) will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute "settlement"
with respect to such Book-Entry Security. All orders of Book-Entry Securities
solicited by a Selling Agent or made by a Purchasing Agent and accepted by the
Company on a particular date (the "Trade Date") will be settled on a date (the
"Settlement Date") which is on or before the third Business Day after the Trade
Date pursuant to the "Settlement Procedure Timetable" set forth below, unless
the Company and the purchaser agree to settlement on another day, which shall be
no earlier than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For offers to purchase Book-Entry Securities solicited by a Selling
Agent and accepted by the Company for settlement on the first Business Day after
the Trade Date, Settlement Procedures "A" through "L" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
7
<PAGE>
Settlement Procedure Time
- -------------------- ----
A 11:00 a.m. on the Trade Date
B 12:00 noon on the Trade Date
C 2:00 p.m. on the Trade Date
D 3:00 p.m. on the day before the
Settlement Date
E 9:00 a.m. on the Settlement Date
F 10:00 a.m. on the Settlement Date
G-H 2:00 p.m. on the Settlement Date
I 4:45 p.m. on the Settlement Date
J-K 5:00 p.m. on the Settlement Date
If a sale is to be settled more than one Business Day after the Trade
Date, Settlement Procedures A, B and C shall be completed as soon as practicable
but in no event later that 11:00 a.m., 12:00 noon and 2:00 p.m., as the case may
be, on the first Business Day after the Trade Date. If the initial interest rate
for a Floating Rate Book-Entry Security has not been determined at the time that
Settlement Procedure "A" is completed and the Settlement Date is at least three
Business Days after the Trade Date, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no later than 12:00 noon
and 2:00 p.m., respectively, on the second Business Day immediately preceding
the Settlement Date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or cancelled, the
Trustee, upon obtaining knowledge thereof, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to such effect by no later
than 2:00 p.m. on the Business Day immediately preceding the scheduled
Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "G", the Trustee may
deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Book-Entry
Security to the Trustee's participant account, provided that the Trustee's
participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "cancelled," make appropriate entries in the Trustee's
records and send such cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with the procedures of the
CUSIP Service Bureau of Standard & Poor's Corporation, be cancelled and not
immediately reassigned. If a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Securities represented by a Global
Security, the
8
<PAGE>
Trustee will exchange such Global Security for two Global Securities, one of
which shall represent such Book-Entry Security or Securities and shall be
cancelled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC, acting
on behalf of such purchaser), such participants and, in turn, the Agent for such
Book-Entry Security may enter delivery orders through DTC's Participant Terminal
System debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then debiting
such Book-Entry Security to such Agent's participant account and crediting such
Book-Entry Security to the Trustee's participant account and shall notify the
Company and the Trustee thereof. Thereafter, the Trustee will (i) immediately
notify the Company of such order and the Company shall transfer to such Agent
funds available for immediate use in an amount equal to the price of such
Book-Entry Security which was credited to the account of the Company maintained
at the Trustee in accordance with Settlement Procedure J, and (ii) deliver the
withdrawal message and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any reason other than default
by the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on an equitable
basis for the loss of its use of funds during the period when the funds were
credited to the account of the Company.
9
<PAGE>
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Securities to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedures "D", "E" and "G", for the authentication and issuance of a
Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Issuance:
Each Certificated Security will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Security will bear an
Original Issue Date, which will be (i) with respect to an original Certificated
Security (or any portion thereof), its original issuance date (which will be the
settlement date) and (ii) with respect to any Certificated Security (or portion
thereof) issued subsequently upon transfer or exchange of a Certificated
Security or in lieu of a destroyed, lost or stolen Certificated Security, the
original issuance date of the predecessor Certificated Security, regardless of
the date of authentication of such subsequently issued Certificated Security.
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
10
<PAGE>
A. Communication of Sale Information to the Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly on the Sale Date
the following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate, the
Interest Payment Dates, the initial Interest Payment Date and
whether such Security is an Amortizing Security, and if so,
the Amortization Schedule;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) If denominated or payable in a currency other than U.S.
dollars, the relevant provisions relating thereto;
(7) If payments thereon are to be determined by reference to an
index, the relevant provisions relating thereto;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, provisions
relating to such redemption or repayment;
(12) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
11
<PAGE>
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s) and address for payment of principal and
interest;
(14) Denomination of certificates to be delivered at settlement;
(15) Original Issue Discount provisions, if any;
(16) Selling Agent or Purchasing Agent;
[(17) Whether the Book-Entry Security is a Renewable Security, and
if it is a Renewable Security, the Initial Maturity Date and
the Final Maturity Date;]
[(18) Whether the Company has the option to extend the Original
Maturity Date of the Book-Entry Security, and, if so, the
Final Maturity Date of such Book-Entry Security;]
[(19) Whether the Company has the option to reset the Interest Rate,
the Spread or the Spread Multiplier of the Book-Entry
Security; and]
(20) Any other applicable terms.
B. The Company will advise the Trustee by telephone or electronic
transmission (confirmed in writing at any time on the same date) of the
information set forth in Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a pre-printed
four-ply packet for such Certificated Security, which packet will contain the
following documents in forms that have been approved by the Company, the
relevant Agent and the Trustee:
(1) Security with customer confirmation;
(2) Stub One - For the Trustee;
(3) Stub Two - For the relevant Agent; and
12
<PAGE>
(4) Stub Three - For the Company.
D. The Trustee will complete such Certificated Security and
authenticate such Certificated Security and deliver it (with the confirmation)
and Stubs One and Two to the relevant Agent, and such Agent will acknowledge
receipt of the Certificated Security by stamping or otherwise marking Stub One
and returning it to the Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions have been given by such
Agent for payment to the account of the Company at __________________
__________________, or to such other account as the Company shall have specified
to such Agent and the Trustee, in immediately available funds, of an amount
equal to the price of such Certificated Security less such Agent's commission.
In the event that the instructions given by such Agent for payment to the
account of the Company are revoked, the Company will as promptly as possible
wire transfer to the account of such Agent an amount of immediately available
funds equal to the amount of such payment made and such Agent will as promptly
as possible return the Certificated Security and all Stubs to the Company.
E. Unless the relevant Agent is the end purchaser of such Certificated
Security, such Agent will deliver such Certificated Security (with confirmation)
to the customer against payment in immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Certificated Security by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by first-class mail.
At any time upon request from an Agent, the Trustee will also send to the
Company a statement setting forth the principal amount of the Certificated
Securities outstanding as of that date under the Indenture and setting forth a
brief description of any sales of which the Company has advised the Trustee that
have not yet been settled.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, such number of such Pricing Supplement as the Agent may
reasonably request, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to file a copy of the
Pricing Supplement with the Commission not later than the close of business of
the Commission on the second Business Day following the date on which such
Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will provide a copy of such Pricing Supplement to each investor or
purchaser of the relevant Certificated Security or its agent. Pursuant to Rule
434 under the Securities Act, the Pricing Supplement may be delivered separately
from the Prospectus. Outdated Pricing Supplements (other than those retained for
files) will be destroyed.
13
<PAGE>
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
The receipt by the Company of immediately available funds in exchange
for an authenticated Certificated Security delivered to the relevant Agent and,
if applicable, such Agent's delivery of such Certificated Security against
receipt of immediately available funds, shall constitute "settlement" with
respect to such Security. All offers of Certificated Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company will be
settled on a date (the "Settlement Date") which is the third Business Day after
the date of acceptance of such offer, unless the Company and the purchaser agree
to settlement (a) on another Business Day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
For sales by the Company of Certificated Securities to a Purchasing
Agent or through a Selling Agent (unless otherwise specified pursuant to a Terms
Agreement), Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times in New York City set forth below:
Settlement Procedure Time
- -------------------- ----
A 2:00 p.m. on the Business Day
before Settlement Date
B 3:00 p.m. on the Business Day
before Settlement Date
C-D 12:00 noon on Settlement Date
E 12:00 noon on Settlement Date
F 5:00 p.m. on Settlement Date
If the Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities, Settlement Procedure "B" will be given by the
Company by 11:00 a.m., New York City time.
The Company shall not use any proceeds advanced by a Selling Agent to
acquire securities prior to the Selling Agent receiving the Certificated
Securities from the Company.
14
<PAGE>
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. Such
wire transfer will be made on the Settlement Date, if possible, and in any event
not later than the Business Day following the Settlement Date. If the failure
shall have occurred for any reason other than a default by such Selling Agent in
the performance of its obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period when they were credited
to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
15
<PAGE>
EXHIBIT 4(q)
================================================================================
WELLS FARGO & COMPANY
TO
_________________________,
Trustee
----------------
INDENTURE
Dated as of __________________
----------------
Senior Debt Securities
===============================================================================
<PAGE>
WELLS FARGO & COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________________
Trust Indenture Act Section Indenture Section
ss.310(a)(1).................................................. 609
(a)(2).................................................. 609
(a)(3).................................................. Not Applicable
(a)(4).................................................. Not Applicable
(a)(5).................................................. 609
(b)..................................................... 608, 610
(c)..................................................... Not Applicable
ss.311(a)..................................................... 613
(b)..................................................... 613
ss.312(a)..................................................... 701, 702(a)
(b)..................................................... 702(b)
(c)..................................................... 702(c)
ss.313(a)..................................................... 703(a)
(b)..................................................... 703(a)
(c)..................................................... 703(a)
(d)..................................................... 703(b)
ss.314(a)..................................................... 704, 1007
(b)..................................................... Not Applicable
(c)(1).................................................. 102
(c)(2).................................................. 102
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 102
ss.315(a)..................................................... 601
(b)..................................................... 602
(c)..................................................... 601
(d)..................................................... 601
(e)..................................................... 514
ss.316(a)..................................................... 101
(a)(1)(A)............................................... 104(h), 502
........................................................ 512
(a)(1)(B)............................................... 104(h), 513
(a)(2).................................................. Not Applicable
(b)..................................................... 508
(c)..................................................... 104(h)
ss.317(a)(1).................................................. 503
(a)(2).................................................. 504
(b)..................................................... 1003
ss.318(a)..................................................... 107
(c)..................................................... 107
- -----------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
Parties......................................................................1
Recitals.....................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.....................................................1
Act.....................................................................2
Affiliate...............................................................2
Authorized Newspaper....................................................2
Bearer Security.........................................................2
Board of Directors......................................................2
Board Resolution........................................................2
Business Day............................................................3
Capital Stock...........................................................3
CEDEL"or "CEDEL S.A.....................................................3
Commission..............................................................3
Company.................................................................3
Company Request"and "Company Order......................................3
corporation.............................................................4
coupon..................................................................4
Debt Securities.........................................................4
Defaulted Interest......................................................4
Depositary..............................................................4
Designated Currency.....................................................4
Dollar"or "$............................................................4
ECU.....................................................................4
Eligible Instruments....................................................4
Euroclear...............................................................4
European Communities....................................................5
Event of Default........................................................5
Exchange Rate...........................................................5
Exchange Rate Agent.....................................................5
Exchange Rate Officer's Certificate.....................................5
Foreign Currency........................................................5
Global Exchange Agent...................................................5
Global Exchange Date....................................................5
Global Security.........................................................5
Holder..................................................................5
Indenture...............................................................5
<PAGE>
interest................................................................6
Interest Payment Date...................................................6
Maturity................................................................6
Officers'Certificate....................................................6
Opinion of Counsel......................................................6
Original Issue Discount Security........................................6
Outstanding.............................................................6
Paying Agent............................................................7
Person..................................................................7
Place of Payment........................................................7
Predecessor Security....................................................7
Principal Subsidiary Bank...............................................7
Redemption Date.........................................................7
Redemption Price........................................................8
Registered Security.....................................................8
Regular Record Date.....................................................8
Remarketing Entity......................................................8
Repayment Date..........................................................8
Repayment Price.........................................................8
Responsible Officer.....................................................8
Security Register.......................................................8
Special Record Date.....................................................8
Stated Maturity.........................................................8
Subsidiary..............................................................8
Subsidiary Bank.........................................................9
Trust Indenture Act.....................................................9
Trustee.................................................................9
United States...........................................................9
United States Alien.....................................................9
U.S. Government Obligations.............................................9
Voting Stock............................................................9
Section 102. Compliance Certificates and Opinions...........................10
Section 103. Form of Documents Delivered to Trustee.........................10
Section 104. Acts of Holders................................................11
Section 105. Notices, etc., to Trustee and Company..........................13
Section 106. Notice to Holders; Waiver......................................13
Section 107. Conflict with Trust Indenture Act..............................14
Section 108. Effect of Headings and Table of Contents.......................14
Section 109. Successors and Assigns.........................................15
Section 110. Separability Clause............................................15
Section 111. Benefits of Indenture..........................................15
Section 112. Governing Law..................................................15
Section 113. Legal Holidays.................................................15
Section 114. Counterparts...................................................15
ii
<PAGE>
ARTICLE TWO
Debt Security Forms
Section 201. Forms Generally................................................16
Section 202. Form of Trustee's Certificate of Authentication................17
Section 203. Debt Securities in Global Form.................................17
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series...........................18
Section 302. Denominations..................................................21
Section 303. Execution, Authentication, Delivery and Dating.................21
Section 304. Temporary Debt Securities......................................24
Section 305. Registration; Registration of Transfer and Exchange............27
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities..........31
Section 307. Payment of Interest; Interest Rights Preserved.................32
Section 308. Persons Deemed Owners..........................................34
Section 309. Cancellation...................................................34
Section 310. Computation of Interest........................................35
Section 311. Certification by a Person Entitled to Delivery of a
Bearer Security................................................35
Section 312. Judgments......................................................35
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture........................36
Section 402. Application of Trust Money and Eligible Instruments............37
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series..................................................38
ARTICLE FIVE
Remedies
Section 501. Events of Default..............................................41
Section 502. Acceleration of Maturity; Rescission and Annulment.............42
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................43
Section 504. Trustee May File Proofs of Claim...............................44
Section 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons..........................................45
Section 506. Application of Money Collected.................................45
Section 507. Limitation on Suits............................................46
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................47
Section 509. Restoration of Rights and Remedies.............................47
Section 510. Rights and Remedies Cumulative.................................47
Section 511. Delay or Omission Not Waiver...................................47
Section 512. Control by Holders of Debt Securities..........................48
Section 513. Waiver of Past Defaults........................................48
Section 514. Undertaking for Costs..........................................48
iii
<PAGE>
Section 515. Waiver of Stay or Extension Laws...............................49
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities............................49
Section 602. Notice of Default..............................................50
Section 603. Certain Rights of Trustee......................................50
Section 604. Not Responsible for Recitals or Issuance of Debt
Securities.....................................................51
Section 605. May Hold Debt Securities or Coupons............................51
Section 606. Money Held in Trust............................................52
Section 607. Compensation and Reimbursement.................................52
Section 608. Disqualification; Conflicting Interests........................53
Section 609. Corporate Trustee Required; Eligibility........................53
Section 610. Resignation and Removal; Appointment of Successor..............53
Section 611. Acceptance of Appointment by Successor.........................55
Section 612. Merger, Conversion, Consolidation or Succession to Business....56
Section 613. Preferential Collection of Claims Against Company..............57
Section 614. Authenticating Agent...........................................57
ARTICLE SEVEN
Holders'Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders......59
Section 702. Preservation of Information; Communications to Holders.........59
Section 703. Reports by Trustee.............................................60
Section 704. Reports by Company.............................................60
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, etc. Only on Certain Terms............60
Section 802. Successor Corporation Substituted..............................61
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.............62
Section 902. Supplemental Indentures with Consent of Holders................63
Section 903. Execution of Supplemental Indentures...........................64
Section 904. Effect of Supplemental Indentures..............................65
Section 905. Conformity with Trust Indenture Act............................65
Section 906. Reference in Debt Securities to Supplemental Indentures........65
iv
<PAGE>
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest...................65
Section 1002. Maintenance of Office or Agency..............................66
Section 1003. Money for Debt Securities Payments to Be Held in Trust.......67
Section 1004. Purchase of Debt Securities by Company or Subsidiary.........68
Section 1005. Restrictions Upon Sale or Issuance of Capital Stock of
Certain Subsidiary Banks.....................................69
Section 1006. Payment of Additional Amounts................................69
Section 1007. Officers'Certificate as to Default...........................70
Section 1008. Waiver of Certain Covenants..................................70
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability of Article.....................................71
Section 1102. Election to Redeem; Notice to Trustee........................71
Section 1103. Selection by Trustee of Debt Securities to be Redeemed.......71
Section 1104. Notice of Redemption.........................................72
Section 1105. Deposit of Redemption Price..................................73
Section 1106. Debt Securities Payable on Redemption Date...................73
Section 1107. Debt Securities Redeemed in Part.............................74
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.....................................75
Section 1202. Satisfaction of Sinking Fund Payments with Debt Securities...75
Section 1203. Redemption of Debt Securities for Sinking Fund...............76
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article.....................................76
Section 1302. Repayment of Debt Securities.................................76
Section 1303. Exercise of Option; Notice...................................77
Section 1304. Election of Repayment by Remarketing Entities................78
Section 1305. Securities Payable on the Repayment Date.....................78
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401. Purposes for Which Meetings May Be Called....................79
Section 1402. Call, Notice and Place of Meetings...........................79
Section 1403. Person Entitled to Vote at Meetings..........................79
Section 1404. Quorum; Action...............................................80
Section 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings..................................................80
v
<PAGE>
Section 1406. Counting Votes and Recording Action of Meetings..............81
ARTICLE FIFTEEN
Defeasance
Section 1501. Termination of Company's Obligations.........................82
Section 1502. Repayment to Company.........................................83
Section 1503. Indemnity for Eligible Instruments...........................84
Testimonium................................................................76
Signature and Seals........................................................76
Acknowledgements...........................................................77
Exhibit A.................................................................A-1
Exhibit B.................................................................B-1
vi
<PAGE>
INDENTURE (the "Indenture") dated as of _________________, between WELLS
FARGO & COMPANY, a Delaware corporation (hereinafter called the "Company"),
having its principal place of business at 420 Montgomery Street, San Francisco,
California 94163 and __________________________, (hereinafter called the
"Trustee"), having its Corporate Trust Office at ____________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds and other evidences of indebtedness (herein called the "Debt
Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the benefit of all
Holders of such Debt Securities or of any such series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of
which this instrument was executed, except as provided in Section 905, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting
<PAGE>
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the
United States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar impact refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to Section
201 which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment, means any
day which is not a Saturday or Sunday and which is not a legal holiday or a day
on which
2
<PAGE>
banking institutions or trust companies in that Place of Payment are authorized
or obligated by law or executive order to close.
"Capital Stock" means, as to shares of a corporation, outstanding shares of
stock of any class, whether now or hereafter authorized, irrespective of whether
such class shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding up
of such corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of original execution of this Indenture is located at
_____________________________________, except that, with respect to presentation
of the Debt Securities for payment or registration of transfers or exchanges and
the location of the Security Registrar, such term means the office or agency of
the Trustee at which at any particular time its corporate agency business shall
be conducted, which at the date of original execution of this Indenture is
located at _____________________________________.
The term "corporation" includes corporations, associations, companies and
business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
3
<PAGE>
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Eligible Instruments" means monetary assets, money market instruments and
securities that are payable in Dollars only and essentially risk free as to
collection of principal and interest, including U.S. Government Obligations.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in Section
301.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or
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any Assistant Treasurer of the Company or the Exchange Rate Agent appointed
pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or part of a
series of Debt Securities in accordance with Section 303.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of or counsel for
the Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
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"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Debt Securities means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money or Eligible Instruments in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such Debt
Securities and any coupons appertaining thereto; provided, however, that if
such Debt Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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"Place of Payment", when used with respect to the Debt Securities of any
series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated
by Section 301.
"Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any
Debt Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debt Security.
"Principal Subsidiary Bank" means any Subsidiary Bank at the time having
total assets as set forth in its most recent statement of condition equal to
more than 10% of the total consolidated assets of the Company and its
Subsidiaries determined on a consolidated basis from the Company's most recent
financial statements filed with the Commission pursuant to the Securities
Exchange Act of 1934.
"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be repaid
upon exercise of an option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security to be repaid
upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
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"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding shares
of Voting Stock, except for directors' qualifying shares, of which shall at the
time be owned, directly or indirectly, by the Company or by one or more of the
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Subsidiary Bank" means any commercial bank or trust company organized in
the United States under Federal or state law, at least a majority of the shares
of the Voting Stock of which shall at the time be owned, directly or indirectly,
by the Company or by one or more Subsidiaries or by the Company and one or more
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Debt Securities
of any series shall mean the Trustee with respect to Debt Securities of that
series.
"United States" means the United States of America (including the District
of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States, and shall also
include a depository receipt issued by a bank (as defined in
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Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock", as applied to the stock (or the equivalent thereof) of any
corporation, means stock (or the equivalent thereof) of any class or classes,
however designated, having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock (or such equivalent)
having such power only by reason of the happening of a contingency.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee, if so requested by the Trustee, an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Debt Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Debt Securities
duly called and held in accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Debt Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner
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provided in this Section. The record of any meeting of Holders of Debt
Securities shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debt Security shall bind every future holder
of the same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, suffered or omitted by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Debt
Security.
(g) For purposes of determining the principal amount of Outstanding Debt
Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt
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Security denominated in a Foreign Currency or composite currency shall be deemed
to have the principal amount determined by the Exchange Rate Agent by converting
the principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the Exchange Rate as of the date such
Act is delivered to the Trustee and, where it is hereby expressly required, to
the Company, by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided),
if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities
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of such series are then listed on any other stock exchange outside the United
States and such stock exchange shall so require, in any other required city
outside the United States or, if not practicable, in Europe on a Business Day at
least twice, the first such publication to be not later than the latest date and
not earlier than the earliest date prescribed for the giving of such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or impracticable to mail
notice of any event to Holders when said notice is required to be given pursuant
to any provision of this Indenture or of the Debt Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice. In any case where notice to Holders of
Registered Securities is to be given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Debt Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Debt Securities or coupons) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or at the Stated Maturity, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date or Stated Maturity, as the case may be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
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ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially the form (including
temporary or permanent global form) as shall be established in or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with the rules of any securities exchange,
or as may, consistently herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt
Securities or coupons. If the form of Debt Securities of any series or coupons
(including any such Global Security) is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such Debt
Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt Securities
in bearer form other than Debt Securities in temporary or permanent global form
shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
_______________________________,
as Trustee
By______________________________
Authorized Officer
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SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(10) of Section 301 and the provisions of Section 302, such Global Security
shall represent such of the outstanding Debt Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Debt Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amounts, of
Outstanding Debt Securities represented thereby shall be made in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to any
Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture
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(except for Debt Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Debt Securities of
the series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except
for any Debt Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Registered Security
on any Interest Payment Date and the circumstances, if any, in which the
Company may defer interest payments;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Debt Securities of the series and this
Indenture may be served and where notices to Holders pursuant to Section
106 will be published;
(6) if applicable, the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(9) whether the Debt Securities of the series shall be issued in whole
or in part in the form of a Global Security or Securities and, in such
case, the Depositary and Global Exchange Agent for such Global Security or
Securities, whether such global form shall be permanent or temporary and,
if applicable, the Global Exchange Date;
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(10) if Debt Securities of the series are to be issuable initially in
the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Debt Securities
and whether the definitive Debt Securities will be Registered and/or Bearer
Securities and will be in global form and whether interest in respect of
any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Global Exchange Date shall be paid to any
clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(11) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1006;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the denomination
of $5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) the currency or currencies of denomination of the Debt Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(15) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and Exchange Rate Agent;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index based on a currency or currencies other than that in
which the Debt Securities are denominated or designated to be payable, the
manner in which such amounts shall be determined;
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(17) if payments of principal of (and premium, if any) or interest on
the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined or if the Exchange Rate is to be determined otherwise than as
provided in Section 101;
(18) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(19) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of Debt Securities
of the series in lieu of any covenant or warranty set forth herein for the
benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of
all series shall not be for the benefit of Debt Securities of such series,
or any combination of such covenants, warranties or provisions and whether
the provisions of Section 1008 will not apply such covenants and
warranties;
(20) the terms and conditions, if any, pursuant to which the Company's
obligations under this Indenture may be terminated through the deposit of
money or Eligible Instruments as provided in Articles Four and Fifteen;
(21) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
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If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or coupons of any series or did not hold such offices at the date of
such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, Debt Securities of any series may be executed by the Company and
delivered to the Trustee for authentication, and, except as otherwise provided
in this Article Three, shall thereupon be authenticated and delivered by the
Trustee upon Company Order, without any further action by the Company; provided,
however, that, in connection with its original issuance, a Bearer Security may
be delivered only outside the United States and, except in the case of a
temporary Global Security, only if the Company or its agent shall have received
the certification required pursuant to Sections 304(b)(iii) and (iv), unless
such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal
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amounts, rates of interest, maturity dates and other matters contemplated by
such Board Resolution and Officers' Certificate or supplemental indenture to be
so instructed in respect thereof. Before authorizing and delivering the first
Debt Securities of any series (and upon request of the Trustee thereafter), the
Company shall deliver to the Trustee (i) the certificates called for under
Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next
sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of the
Debt Securities of such series and coupons, if any, pursuant to Sections
201 and 301 and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Debt Securities have been
complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any,
has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if any,
have been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 301 in conformity with
the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and the application of general principles of equity and
except further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Debt Securities
denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into Dollars at
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a rate of exchange prevailing on a date determined pursuant to
applicable law or (ii) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in permanent or
temporary form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
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(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any series,
the Company may execute, and upon receipt of documents required by Sections 301
and 303, together with a Company Order, the Trustee shall authenticate and
deliver, temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor and terms of the definitive Debt Securities in lieu of which they are
issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt
Securities may determine, as evidenced by their signatures on such Debt
Securities. In the case of Debt Securities of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form, representing
all or any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form, if
temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in
exchange for a Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security
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(the "Global Exchange Date"), the Company shall deliver definitive Debt
Securities to the Trustee or the agent appointed by the Company pursuant to
Section 301 to effect the exchange of the temporary Global Security for
definitive Debt Securities (the "Global Exchange Agent"), in an aggregate
principal amount equal to the principal amount of such temporary Global
Security, executed by the Company. On or after the Global Exchange Date,
such temporary Global Security shall be surrendered by the Depositary to
the Global Exchange Agent, to be exchanged, in whole or from time to time
in part, for definitive Debt Securities without charge and the Trustee or
the Global Exchange Agent, if authorized by the Trustee pursuant to Section
614, shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of
definitive Debt Securities of the same series of authorized denominations
and of like tenor and terms as the portion of such temporary Global
Security to be exchanged. Upon any exchange of a part of such temporary
Global Security for definitive Debt Securities, the portion of the
principal amount and any interest thereon so exchanged shall be endorsed by
the Global Exchange Agent on a schedule to such temporary Global Security,
whereupon the principal amount and interest payable with respect to such
temporary Global Security shall be reduced for all purposes by the amount
so exchanged and endorsed. The definitive Debt Securities to be delivered
in exchange for any such temporary Global Security shall be in bearer form,
registered form, global registered form or global bearer form, or any
combination thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, in the case of the exchange of the
temporary Global Security for definitive Bearer Securities (including a
definitive Global Bearer Security), upon such presentation by the
Depositary, such temporary Global Security shall be accompanied by a
certificate signed by Euroclear as to the portion of such temporary Global
Security held for its account then to be exchanged and a certificate signed
by CEDEL S.A. as to the portion of such temporary Global Security held for
its account then to be exchanged, each in the form set forth in Exhibit B
to this Indenture, unless such certificate(s) shall have been provided
earlier pursuant to section 304(b)(v) hereof; and provided, further, that
definitive Bearer Securities (including a definitive Global Bearer
Security) shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a series
in a temporary Global Security shall be exchanged for definitive Debt
Securities of the same series and of like tenor and terms following the
Global Exchange Date when the account holder instructs Euroclear or CEDEL
S.A., as the case may be, to request such exchange on such account holder's
behalf and, in the case of the exchange of the temporary Global Security
for definitive Bearer Securities (including a definitive Global Bearer
Security), unless such certificate(s) shall have been provided earlier
pursuant to Section 304(b)(v) hereof, the account holder delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form set
forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no
earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
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S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and CEDEL S.A. Definitive
Debt Securities in bearer form to be delivered in exchange for any portion
of a temporary Global Security shall be delivered only outside the United
States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same
series and of like tenor and terms authenticated and delivered hereunder,
except that interest payable on a temporary Global Security on an Interest
Payment Date shall be payable to Euroclear and CEDEL S.A. on such Interest
Payment Date only if there has been delivery by Euroclear and CEDEL S.A. to
the Global Exchange Agent of a certificate or certificates in the form set
forth in Exhibit B to this Indenture dated no earlier than the first
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture dated no earlier than the first Interest
Payment Date. Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company in
accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 305
and Section 1002, with respect to the Debt Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Debt Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such Debt
Securities and transfers and exchanges of such Debt Securities as herein
provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee
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or transferees, one or more new Registered Securities of the same series of any
authorized denomination or denominations, of like tenor and terms and aggregate
principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
form and denomination, of like tenor and terms and aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered
Securities.
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor and terms after the close of business at such
office or agency of (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Debt Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 303(h), the
Company shall appoint a successor Depositary with respect to the Debt Securities
of such series. If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice
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or becomes aware of such ineligibility, the Company's election pursuant to
Section 301(9) shall no longer be effective with respect to the Debt Securities
of such series and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without charge to any Holder,
(a) to each Person specified by such Depositary a new Debt Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only
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outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Debt Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Registered Securities to the persons in whose names such Debt
Securities are so registered. The Trustee shall deliver Bearer Securities issued
in exchange for a Global Security pursuant to this Section to the persons, and
in such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
All Debt Securities issued upon any registration of transfer or exchange of
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No charge to any Holder shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Debt Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities
of such series selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in
part, except the unredeemed
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portion of such Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of like tenor and terms of
that series, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a mutilated
coupon appertaining to it is surrendered to a Paying Agent outside the United
States designated by the Company, or, in the case of any Registered Security, to
the Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or coupon,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice to the Company and the Trustee that such Debt Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
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Upon the issuance of any new Debt Security or coupons under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and printing expenses)
connected therewith.
Every new Debt Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Debt Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that series and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective
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Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount
of money and/or, to the extent such Debt Securities are denominated and
payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holder of such Registered
Securities) will provide money in such amounts as will (together with any
money irrevocably deposited in trust with the Trustee, without investment)
be equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
and/or Eligible Instruments when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements satisfactory to
the Trustee with respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series held by, the
Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the
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requirements of any securities exchange on which the Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Subject to the limitations set forth in Section 1002, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities, all
Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
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acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture or a Debt Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt Securities
of any series that, to the fullest extent possible under applicable law and
except as may otherwise be specified as contemplated in Section 301, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Debt Securities of any series and any appurtenant coupons in
a Foreign Currency, composite currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 301 is of the essence and agrees that
judgments in respect of such Debt Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such Debt
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Debt Securities herein expressly provided for and rights to receive payments of
principal and interest thereon and any right to receive additional amounts, as
provided in Section 1006) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and delivered and
all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has
been waived as provided in Section 305, (ii) Debt Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (iii) coupons appertaining to Bearer
Securities called for redemption or surrendered for repayment and maturing
after the relevant Redemption Date or Repayment Date, as appropriate,
surrender of which has been waived as provided in Section 1106 or 1303 and
(iv) Debt Securities and coupons for whose payment money and/or Eligible
Instruments have theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee cancelled or for cancellation; or
(B) all such Debt Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
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and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge the entire indebtedness on such
Debt Securities and coupons of such series for principal (and premium,
if any) and interest, and any mandatory sinking fund, repayment or
analogous payments thereon, on the scheduled due dates therefor to the
date of such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt Securities
repayable at the option of the Holders thereof); provided, however,
that in the event a petition for relief under the Bankruptcy Reform
Act of 1978 or a successor statute is filed with respect to the
Company within 91 days after the deposit, the obligations of the
Company under the Indenture with respect to the Debt Securities of
such series shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited money and
Eligible Instruments then held by the Trustee to the Company;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money and Eligible Instruments.
(a) Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
401, 403 or 1501 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the
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Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money or Eligible Instruments have been deposited with
the Trustee.
(b) The Trustee shall deliver or pay to the Company from time to time upon
Company Request any Eligible Instruments or money held by it as provided in
Section 403 or 1501 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such Eligible
Instruments or money were deposited or received.
(c) If this Section 402(c) is specified, as contemplated by Section 301, to
be applicable to the Debt Securities of any series, the Trustee shall deliver to
the Company from time to time upon Company Request any Eligible Instruments held
by it as provided in Section 403 or 1501, provided that the Company in
substitution therefor simultaneously delivers to the Trustee, money or other
Eligible Instruments which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, would then be sufficient to satisfy the Company's
payment obligations in respect of the Debt Securities in the manner contemplated
by Section 403 or 1501.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt Securities of
any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Debt Securities of any series, then, notwithstanding Section 401,
(i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect
(except as to the rights of Holders of Debt Securities to receive, from the
trust fund described in subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Debt Securities and related coupons on the Stated Maturity
of such principal (and premium, if any) or installment of principal (and
premium, if any) or interest or (y) any mandatory sinking fund, repayment or
analogous payments applicable to the Debt Securities of that series on that day
on which such payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities, the Company's obligations with respect to
such Debt Securities under Sections 304, 305, 306, 1002, 1003 and 1006 and the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 607 hereof); and (iii) the Trustee, at the expense
of the Company, shall, upon Company Order, execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited
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or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to comply
with the provisions of this Section 403 applicable to it) irrevocably,
as trust funds in trust, money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of such Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium,
if any) and interest on the Outstanding Debt Securities of that series
and related coupons on the Stated Maturity of such principal or
interest or, if such series may be redeemed by the Company prior to
the Stated Maturity thereof, and the Company shall have given
irrevocable instructions to the Trustee to effect such redemption, at
the date fixed for such redemption pursuant to Article Eleven, and
(ii) any mandatory sinking fund payments or analogous payments
applicable to Debt Securities of such series on the date on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing on
the date of such deposit and no Event of Default under Section 501(6) or
Section 501(7) or event which, with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 501(6) or Section
501(7) shall have occurred and be continuing on the 91st day after such
date; provided, however, that should that condition fail to be satisfied on
or before such 91st day, the Trustee shall promptly, upon satisfactory
receipt of evidence of such failure, return such deposit to the Company;
(5) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date
of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities and
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related coupons of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred;
(6) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted;
(7) such deposit shall have been effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301; and
(8) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above shall
be irrevocable and shall be made under the terms of an escrow or trust agreement
in form and substance satisfactory to the Trustee. If any Outstanding Debt
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow or trust agreement
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403 with
respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Debt Security of
such series or a related coupon, if any, when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of Debt Securities of a series other than
such series), and continuance of such default or breach for a period of 90
days after there as been given by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder, or
(5) the failure of the Company, subject to the provisions of Section
1008, to observe and perform the covenants contained in Section 1005; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such
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decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default, if any, provided with respect to Debt
Securities of such series specified as contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of Outstanding
Debt Securities of such series may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of and
all accrued but unpaid interest on all the Debt Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by such Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. Upon
payment of such amount, all obligations of the Company in respect of the payment
of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
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(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt Securities
of such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of the principal of Debt Securities of
such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security or any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Debt Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs
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and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and coupons, wherever situated.
If an Event of Default with respect to Debt Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly
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to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Debt Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name, as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Debt Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities and
any coupons, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively. The
Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
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THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Debt Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Debt Security or payment of such coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on the Redemption Date or
the Repayment Date, as the case may be) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
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(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt Security
or coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Company or the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security or the payment of any coupons on or after
the respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or
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advantage of, any stay or extension law whenever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefits or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default, the Trustee's duties
and responsibilities under this Indenture shall be governed by the Trust
Indenture Act. In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any series
the Trustee shall transmit by mail to all Holders of Debt Securities of such
series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof; and provided further, that, except in the case of a default
in the payment of principal of (or premium, if any) or interest on any Debt
Security of such series or related coupons or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of the Debt Securities of such series.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Debt Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any signature, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Debt Securities of such series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Global Exchange Agent,
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Depositary or Paying Agent shall be deemed an agent of the Trustee and the
Trustee shall not be responsible for any act or omission by any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not be
responsible for and makes no representations to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other agent of
the Company or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities and coupons, and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder which shall have been separately
agreed to by the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel),
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except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
claim, loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Debt Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Debt Securities or any coupons.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under (a) this Indenture with respect to any particular series of Debt
Securities or (b) the Indenture dated as of _____________________.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with respect to
the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an
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assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee. In
addition, the Company may remove the Trustee if the Company shall determine by a
Board Resolution that the services provided by the Trustee hereunder may be
obtained at a substantially lower cost to the Company.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Debt Securities, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Debt Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Debt Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Debt Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Debt Securities of any series shall
have been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide Holder of a
Debt Security of such series for at least six months may, subject to Section
514, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee upon payment of its charges and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon the
Debt Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding collection of claims against the Company (or any such
other obligor).
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more authenticating
agents (including, without limitation, the Company or any Affiliate thereof)
with respect to one or more series of Debt Securities which shall be authorized
on behalf of the Trustee in authenticating Debt Securities of such series in
connection with the issue, delivery, registration of transfer, exchange, partial
redemption or repayment of such Debt Securities. Wherever reference is made in
this Indenture to the authentication of Debt Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of
the United States or of any State, having a combined capital and surplus of at
least $1,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by Federal or State authorities or the equivalent
foreign authority in the case of an authenticating agent who is not organized
and doing business under the laws of the United States or of any State thereof
or the District of Columbia.
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The Trustee hereby initially appoints Norwest Bank Minnesota, N.A. as its
authenticating agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or more
series of Debt Securities by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time terminate the agency of any
authenticating agent with respect to one or more series of Debt Securities by
giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may appoint
a successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment, subject to the provisions
of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall be
applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt Securities
of each series covered by such appointment may have endorsed thereon, in lieu of
the Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
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This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
__________________________________________
By _______________________________________
As Authenticating Agent for the Trustee
By _______________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record Date
in respect of the Debt Securities of such series or on May 15 and November
15 of each year with respect to each series of Debt Securities for which
there are no Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered
Securities as of such Regular Record Date or May 1 or November 1, as the
case may be, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or
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Security Registrar, if so acting. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished. The
Trustee shall preserve for at least two years the names and addresses of Holders
of Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Debt Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee shall be held accountable by reason of any disclosure of information
as to the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Debt Securities pursuant to this Indenture and at
any other time required by the Trust Indenture Act, the Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture and such other matters as may be required pursuant to the Trust
Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the time and
in the manner pursuant to such Act; provided that such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series as
permitted by Sections 201 and 301; or
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(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(9) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Debt Securities of any series or any appurtenant
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of all series affected by such
supplemental indenture, acting together as a class, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities of such series and any related coupons; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal or any installment of
principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment, or the
coin or currency in which any Debt Security or the interest thereon or any
coupon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
such
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supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or reduce the requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7), or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders of the Debt Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and any appurtenant coupons that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities and any
appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer Securities on
or before Maturity, other than additional amounts, if any, payable as provided
in Section 1006 in respect of principal of (or premium, if any, on) such a Debt
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Debt
Securities an office or agency where Debt Securities (but, except as otherwise
provided below, unless such Place of Payment is located outside the United
States, not Bearer Securities) may be presented or surrendered for payment,
where Debt Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debt Securities and this Indenture may be served. If Debt Securities of a series
are issuable as Bearer Securities, the Company will maintain, subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); provided, however,
that if the Debt
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Securities of such series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Debt Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices or demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
presentations, surrenders, notices and demands, except that Bearer Securities of
that series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1006) at the place specified for the purpose
pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, payment
of principal of and any premium and interest denominated in Dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Debt Securities, at
the option of the Holder of any Bearer Security or related coupon, payment may
be made by check in the currency designated for such payment pursuant to the
terms of such Bearer Security presented or mailed to an address outside the
United States or by transfer to an account in such currency maintained by the
payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of such Place of Payment) where the Debt Securities
of one or more series and any appurtenant coupons (subject to the preceding
paragraph) may be presented or surrendered for any or all such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for any
series of Debt Securities for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
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SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of Debt
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series or any appurtenant
coupons; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its obligations
under this Indenture with respect to Debt Securities of any series or for any
other purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
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Any principal and interest received on the Eligible Instruments deposited
with the Trustee or any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Purchase of Debt Securities by Company or Subsidiary.
If and so long as the Debt Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Debt Securities of that series by private treaty
at a price (exclusive of expenses and accrued interest) which exceeds 120% of
the mean of the nominal quotations of the Debt Securities of that series as
shown in The Stock Exchange Daily Official List for the last trading day
preceding the date of purchase.
SECTION 1005. Restrictions Upon Sale or Issuance of Capital Stock of
Certain Subsidiary Banks.
The Company will not, and will not permit any Subsidiary to, sell, assign,
pledge, transfer or otherwise dispose of, or permit any Principal Subsidiary
Bank to issue, any shares of Capital Stock of, or any securities convertible
into Capital Stock of, any Principal Subsidiary Bank or any shares of Capital
Stock of any Subsidiary owning, directly or indirectly, in whole or in part,
Capital Stock of any Principal Subsidiary Bank, except:
(1) any sale, assignment, pledge, transfer or other disposition or
issuance made, in the minimum amount required by law, to any person for the
purpose of the qualification of such person to serve as a director;
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(2) any sale, assignment, pledge, transfer or other disposition or
issuance for fair market value (as determined by the Board of Directors of
the Company, such determination being evidenced by a resolution of the
Board of Directors), if, after giving effect to such disposition and to the
issuance of any shares issuable upon conversion or exchange of securities
convertible or exchangeable into Capital Stock, the Company would own
directly or indirectly through other Subsidiaries not less than 80% of the
shares of each class of Capital Stock of such Principal Subsidiary Bank;
(3) any sale, assignment, pledge, transfer or other disposition or
issuance made in compliance with an order or direction of a court or
regulatory authority of competent jurisdiction; or
(4) any sale by any Principal Subsidiary Bank of additional shares of
Capital Stock to its stockholders at any price, so long a (a) prior to such
sale the Company owns, directly or indirectly, shares of the same class and
(b) immediately after such sale, the percentage of the shares of such class
of Capital Stock owned by the Company shall not have been reduced.
SECTION 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Debt Security of any series
or any coupon appertaining thereto additional amounts upon the terms and subject
to the conditions provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Debt Security of any series or any related
coupon or the net proceeds received on the sale or exchange of any Debt Security
of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided for in the terms of such Debt Securities and this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Debt Securities (or if the Debt Securities of that series will
not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of
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that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Debt Securities or coupons and the Company
will pay to the Trustee or such Paying Agent the additional amounts, if any,
required by the terms of such Debt Securities and the first paragraph of this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 1007. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 1005 with respect to the Debt Securities of
any series or any other covenant or condition applicable to the Debt Securities
of any series pursuant to Section 301 unless such covenant or condition is
determined pursuant to Section 301 not to be subject to this provision if,
before the time for such compliance the Holders of at least a majority in
principal amount of all series of the Debt Securities at the time Outstanding to
which such covenant or condition applies shall, acting together as a class, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Debt Securities of any
series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at such
place or places which are outside the United States, except as otherwise
provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election of
the Company shall be given by the Company, or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 1002, unless otherwise
specified as contemplated by Section 301.
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SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt Securities to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new
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Registered Security or Registered Securities of the same series and of like
tenor and terms, of any authorized denominations as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of a series except as otherwise specified as
contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
term of Debt Securities of any series is herein referred to an "optional sinking
fund payment". If provided for by the terms of Debt Securities of any series,
the amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Debt Securities of any series as provided for by the terms of Debt Securities of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Debt Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 1202, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time
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to time pay over and deliver to the Company any cash payment so being held by
the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Debt Securities purchased by the Company having an unpaid principal amount equal
to the cash payment requested to be released to the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
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SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Debt Security to be repaid in
whole or in part together with written notice of the exercise of such option at
any office or agency of the Company in a Place of Payment, not less than 30 nor
more than 45 days prior to the Repayment Date; provided, however, that surrender
of Bearer Securities together with written notice of exercise of such option
shall be made at an office or agency located outside the United States except as
otherwise provided in Section 1002. Such notice, which shall be irrevocable,
shall specify the principal amount of such Debt Security to be repaid, which
shall be equal to the minimum authorized denomination for such Debt Security or
an integral multiple thereof, and shall identify the Debt Security to be repaid
and, in the case of a partial repayment of the Debt Security, shall specify the
denomination or denominations of the Debt Security or Debt Securities of the
same series to be issued to the Holder for the portion of the principal of the
Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Debt Security so surrendered which is not to be
paid; provided, however, that the issuance of a Registered Security therefor
shall be subject to applicable laws and regulations, including provisions of the
United States Federal income tax laws and regulations in effect at the time of
the exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the
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Company would suffer adverse consequences under the United States Federal income
tax laws then in effect and the Company has delivered to the Trustee a Company
Order directing the Trustee not to make such issuances thereafter unless and
until the Trustee receives a subsequent Company Order to the contrary. The
Company shall deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Debt Securities shall relate, in the
case of any Debt Security repaid or to be repaid only in part, to the portion of
the principal of such Debt Security which has been or is to be repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Debt Securities
of such series from the Holders thereof who give notice and surrender their Debt
Securities in accordance with Section 1303.
SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Debt Securities so to be repaid having been surrendered as aforesaid, such Debt
Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Debt Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of Debt
Securities of such series.
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SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Debt Securities of such series for any purpose specified in Section 1401, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Debt Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to
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the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
majority in principal amount of the Outstanding Debt Securities of that series,
provided however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of
Debt Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 1402(b), in
which case the Company or the Holders of Debt Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary
76
<PAGE>
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Debt Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Debt Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Debt
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1401. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
77
<PAGE>
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Termination of Company's Obligations.
If this Section 1501 is specified, as contemplated by Section 301, to be
applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due dates therefor at the Stated Maturity thereof, the Company's obligations
under Section 1005 and any other covenant determined pursuant to Section 301 to
be subject to this Section shall terminate with respect to the Debt Securities
of the series for which such deposit was made; provided, however, that (i) no
Event of Default with respect to the Debt Securities of such series under
Section 501(6) or 501(7) or event that with notice or lapse of time or both
would constitute such an Event of Default shall have occurred and be continuing
on such date, (ii) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound, and (iii) such termination shall not
relieve the Company of its obligations under the Debt Securities of such series
and this Indenture to pay when due the principal of (and premium, if any) and
interest and additional amounts on such Debt Securities and any coupons
appertaining thereto if such Debt Securities or coupons are not paid (or payment
is not provided for) when due from the money and Eligible Instruments (and the
proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible Instruments
and the termination of the Company's obligations pursuant to the provisions of
this Section with respect to the Debt Securities of any series under Section
1005 and any other covenant determined pursuant to Section 301 to be subject to
this Section that the Company deliver to the Trustee (i) an Opinion of Counsel
to the effect that: (a) Holders of Debt Securities of such series and any
coupons appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and termination and (b) such
Holders (and future Holders) will be subject to tax in the same amount, manner
and timing as if such deposit and termination had not occurred, (ii) an
Officers' Certificate to the effect that under the laws in effect on the date
such money and/or Eligible Instruments are deposited with the Trustee, the
amount thereof will be sufficient, after payment of all Federal, state and local
taxes in respect thereof payable by the Trustee, to pay principal (and premium,
if any) and interest when due on the Debt Securities of such series and any
coupons appertaining thereto; and (iii) an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for
relating to the defeasance contemplated in this Section have been complied with.
78
<PAGE>
It shall be an additional condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section under Section 1005 and any other covenant determined
pursuant to Section 301 to be subject to this Section, with respect to the Debt
Securities of any series then listed on the New York Stock Exchange, that the
Company deliver an Opinion of Counsel that the Debt Securities of such series
will not be delisted from the New York Stock Exchange as a result of such
deposit and termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under Section 1005 and any other covenant determined pursuant to
Section 301 to be subject to this Section.
SECTION 1502. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Eligible Instruments not required for the payment
of the principal of (and premium, if any) and interest on the Debt Securities of
any series and any related coupons for which money or Eligible Instruments have
been deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1501. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1503. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
79
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WELLS FARGO & COMPANY
By______________________________________
Its___________________________________
[CORPORATE SEAL]
Attest:
___________________________________
Its______________________________
________________________________________
By______________________________________
Its___________________________________
[CORPORATE SEAL]
Attest:
___________________________________
Its______________________________
80
<PAGE>
STATE OF ____________ )
)SS.
COUNTY OF ___________ )
On the ____ day of _________, ____, before me personally came
________________, to me known, who, being duly sworn, did depose and say that he
resides at ___________________________________; that he is a
_____________________ of Wells Fargo & Company, a corporation described in and
which executed the above instrument; that he knows the seal of said corporation;
that it was so affixed pursuant to the authority of the Board of Directors of
said corporation; and that he signed his name thereto pursuant to like
authority.
___________________________________
Notary Public
81
<PAGE>
STATE OF ____________ )
)SS.
COUNTY OF ___________ )
On the ____ day of _________, ____, before me personally came
______________, to me known, who, being duly sworn, did depose and say that she
resides at __________________________________________; that she is a
____________________ of ____________________, a national banking association
described in and which executed the above instrument; that she knows the seal of
said corporation; that it was so affixed pursuant to the authority of the Board
of Directors of said corporation; and that she signed her name thereto pursuant
to like authority.
___________________________________
Notary Public
82
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of _________________
(the "Indenture") between Wells Fargo & Company and ____________________ (the
"Trustee"), covering the above-captioned Debt Securities. This is to certify
that as of the date hereof, _______________________ principal amount of Debt
Securities credited to you for our account (i) is owned by persons that are not
United States Persons, as defined below; (ii) is owned by United States Persons
that are (a) foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We undertake
to advise you by tested telex followed by written confirmation if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then appear in your
books as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize you
to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to ___________ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered
<PAGE>
and interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated: _____________________________
[To be dated on or after
_______________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
__________________________________________
(Authorized Signatory)
Name: ____________________________________
Title:____________________________________
__________________
*Delete if inappropriate
A-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of _________________
(the "Indenture"), between Wells Fargo & Company and _____________________,
relating to the offering of the above-captioned Debt Securities (the "Debt
Securities"). Unless herein defined, terms used herein have the same meaning as
given to them in the Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
Dated: _____________________
[To be dated on or after
_________________ (the date
determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
__________________________________________
(Authorized Signatory)
Name: ____________________________________
Title:____________________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of Debt Securities to be delivered]
We refer to that portion, ___________, of the Global Security representing
the above-captioned issue [which is herewith submitted to be exchanged for
definitive Debt Securities]* [for which we are seeking to obtain payment of
interest]* (the "Submitted Portion"). This is to certify, pursuant to the
Indenture dated as of _________________ (the "Indenture") between Wells Fargo &
Company and _____________________ (the "Trustee"), that we have received in
writing, by tested telex or by electronic transmission from member organizations
with respect to each of the persons appearing in our records as being entitled
to a beneficial interest in the Submitted Portion a Certificate of Beneficial
Ownership by a Non-United States Person or by Certain Other Persons [and, in
some cases, a Certificate of Status as a Foreign Branch of a United States
Financial Institution, authorizing us to inform the issuer or the issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986 and the regulations thereunder]* substantially
in the form of Exhibit A-1 [and A-2]* to the Indenture.
We hereby request that you deliver to the office of _______________________
in ______________________ definitive Bearer Securities in the denominations on
the attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated: ________________________
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System] [CEDEL S.A.]
By:___________________________________________
__________________
*Delete if inappropriate.
<PAGE>
EXHIBIT 4(r)
================================================================================
WELLS FARGO & COMPANY
TO
--------------------------------
Trustee
----------------
INDENTURE
Dated as of _______________________
----------------
Subordinated Debt Securities
================================================================================
<PAGE>
WELLS FARGO & COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________________
Trust Indenture Act Section Indenture Section
ss.310(a)(1)............................................ 609
(a)(2)........................................... 609
(a)(3)........................................... Not Applicable
(a)(4)........................................... Not Applicable
(a)(5)........................................... 609
(b).............................................. 608, 610
(c).............................................. Not Applicable
ss.311(a)............................................... 613
(b).............................................. 613
ss.312(a)............................................... 701, 702(a)
(b).............................................. 702(b)
(c).............................................. 702(c)
ss.313(a)............................................... 703(a)
(b).............................................. 703(a)
(c).............................................. 703(a)
(d).............................................. 703(b)
ss.314(a)............................................... 704, 1004
(b).............................................. Not Applicable
(c)(1)........................................... 102
(c)(2)........................................... 102
(c)(3)........................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 102
ss.315(a)............................................... 601
(b).............................................. 602
(c).............................................. 601
(d).............................................. 601
(e).............................................. 514
ss.316(a)............................................... 101
(a)(1)(A)........................................ 104(h), 502
512
(a)(1)(B)........................................ 104(h), 513
(a)(2)........................................... Not Applicable
(b).............................................. 508
(c).............................................. 104(h)
ss.317(a)(1)............................................ 503
(a)(2)........................................... 504
(b).............................................. 1003
ss.318(a)............................................... 107
(c).............................................. 107
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
Parties.......................................................................1
Recitals......................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.................................................1
Act.........................................................2
Affiliate...................................................2
Authorized Newspaper........................................2
Bearer Security.............................................2
Board of Directors..........................................2
Board Resolution............................................2
Business Day................................................2
Capital Exchange Agent......................................3
Capital Exchange Date.......................................3
Capital Exchange Price......................................3
Capital Securities..........................................3
Capital Security Election Form..............................3
CEDEL" or "CEDEL S.A........................................3
Closing Price...............................................3
Commission..................................................3
Common Stock................................................3
Company.....................................................4
Company Request" and "Company Order.........................4
Conversion Price............................................4
Convertible Securities......................................4
Corporate Trust Office......................................4
corporation.................................................4
coupon......................................................4
Debt Securities.............................................4
Defaulted Interest..........................................4
Depositary..................................................4
Designated Currency.........................................4
Dollar" or "$...............................................5
ECU.........................................................5
Eligible Instruments........................................5
Euroclear...................................................5
European Communities........................................5
Event of Default............................................5
<PAGE>
Exchange Rate...............................................5
Exchange Rate Agent.........................................5
Exchange Rate Officer's Certificate.........................5
Foreign Currency............................................5
Global Exchange Agent.......................................5
Global Exchange Date........................................5
Global Security.............................................5
Holder......................................................6
Indenture...................................................6
interest....................................................6
Interest Payment Date.......................................6
Market Value................................................6
Maturity....................................................6
Officers' Certificate.......................................6
Opinion of Counsel..........................................6
Optional Securities Fund....................................6
Original Issue Discount Security............................7
Outstanding.................................................7
Paying Agent................................................7
Perpetual Preferred Stock...................................7
Person......................................................8
Place of Capital Exchange...................................8
Place of Payment............................................8
Predecessor Security........................................8
Primary Federal Regulator...................................8
ranking junior to the Debt Securities.......................8
ranking on a parity with the Debt Securities................8
Redemption Date.............................................9
Redemption Price............................................9
Registered Security.........................................9
Regular Record Date.........................................9
Remarketing Entity..........................................9
Repayment Date..............................................9
Repayment Price.............................................9
Responsible Officer.........................................9
Rights......................................................9
Secondary Offering..........................................9
Securities Fund.............................................9
Security Register...........................................9
Senior Debt................................................10
Special Record Date........................................10
Stated Maturity............................................10
Trust Indenture Act........................................10
Trustee....................................................10
United States..............................................10
ii
<PAGE>
United States Alien........................................10
U.S. Government Obligations................................11
Section 102. Compliance Certificates and Opinions.......................11
Section 103. Form of Documents Delivered to Trustee.....................12
Section 104. Acts of Holders............................................12
Section 105. Notices, etc., to Trustee and Company......................14
Section 106. Notice to Holders; Waiver..................................14
Section 107. Conflict with Trust Indenture Act..........................15
Section 108. Effect of Headings and Table of Contents...................16
Section 109. Successors and Assigns.....................................16
Section 110. Separability Clause........................................16
Section 111. Benefits of Indenture......................................16
Section 112. Governing Law..............................................16
Section 113. Legal Holidays.............................................16
Section 114. Counterparts...............................................17
ARTICLE TWO
Debt Security Forms
Section 201. Forms Generally............................................17
Section 202. Form of Trustee's Certificate of Authentication............18
Section 203. Debt Securities in Global Form.............................18
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series.......................19
Section 302. Denominations..............................................22
Section 303. Execution, Authentication, Delivery and Dating.............23
Section 304. Temporary Debt Securities..................................26
Section 305. Registration; Registration of Transfer and Exchange........28
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities......32
Section 307. Payment of Interest; Interest Rights Preserved.............33
Section 308. Persons Deemed Owners......................................35
Section 309. Cancellation...............................................36
Section 310. Computation of Interest....................................36
Section 311. Certification by a Person Entitled to Delivery of a
Bearer Security............................................36
Section 312. Judgments..................................................36
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture....................37
Section 402. Application of Trust Money and Eligible Instruments........39
iii
<PAGE>
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series..............................................39
ARTICLE FIVE
Remedies
Section 501. Events of Default..........................................42
Section 502. Acceleration of Maturity; Rescission and Annulment.........42
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.....................................44
Section 504. Trustee May File Proofs of Claim...........................45
Section 505. Trustee May Enforce Claims without Possession of
Debt Securities or Coupons.................................46
Section 506. Application of Money Collected.............................46
Section 507. Limitation on Suits........................................47
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Exchange Debt Securities for
Capital Securities.........................................47
Section 509. Restoration of Rights and Remedies.........................48
Section 510. Rights and Remedies Cumulative.............................48
Section 511. Delay or Omission Not Waiver...............................48
Section 512. Control by Holders of Debt Securities......................48
Section 513. Waiver of Past Defaults....................................49
Section 514. Undertaking for Costs......................................49
Section 515. Waiver of Stay or Extension Laws...........................50
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities........................50
Section 602. Notice of Default..........................................50
Section 603. Certain Rights of Trustee..................................51
Section 604. Not Responsible for Recitals or Issuance of
Debt Securities............................................52
Section 605. May Hold Debt Securities or Coupons........................52
Section 606. Money Held in Trust........................................52
Section 607. Compensation and Reimbursement.............................52
Section 608. Disqualification; Conflicting Interests....................53
Section 609. Corporate Trustee Required; Eligibility....................53
Section 610. Resignation and Removal; Appointment of Successor..........54
Section 611. Acceptance of Appointment by Successor.....................56
Section 612. Merger, Conversion, Consolidation or
Succession to Business.....................................57
Section 613. Preferential Collection of Claims Against Company..........57
Section 614. Authenticating Agent.......................................57
iv
<PAGE>
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders..59
Section 702. Preservation of Information; Communications to Holders.....59
Section 703. Reports by Trustee.........................................60
Section 704. Reports by Company.........................................60
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, etc. Only on Certain Terms........61
Section 802. Successor Corporation Substituted..........................61
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.........62
Section 902. Supplemental Indentures with Consent of Holders............63
Section 903. Execution of Supplemental Indentures.......................65
Section 904. Effect of Supplemental Indentures..........................65
Section 905. Conformity with Trust Indenture Act........................65
Section 906. Reference in Debt Securities to Supplemental Indentures....65
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest................65
Section 1002. Maintenance of Office or Agency...........................66
Section 1003. Money for Debt Securities Payments to Be Held in Trust....67
Section 1004. Officers' Certificate as to Default.......................69
Section 1005. Waiver of Certain Covenants...............................69
Section 1006. Payment of Additional Amounts.............................69
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability of Article..................................70
Section 1102. Election to Redeem; Notice to Trustee.....................70
Section 1103. Selection by Trustee of Debt Securities to be Redeemed....70
Section 1104. Notice of Redemption......................................71
Section 1105. Deposit of Redemption Price...............................72
v
<PAGE>
Section 1106. Debt Securities Payable on Redemption Date................72
Section 1107. Debt Securities Redeemed in Part..........................73
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article..................................73
Section 1202. Satisfaction of Sinking Fund Payments with
Debt Securities...........................................74
Section 1203. Redemption of Debt Securities for Sinking Fund............74
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article..................................75
Section 1302. Repayment of Debt Securities..............................75
Section 1303. Exercise of Option; Notice................................75
Section 1304. Election of Repayment by Remarketing Entities.............76
Section 1305. Securities Payable on the Repayment Date..................77
ARTICLE FOURTEEN
Exchange of Capital Securities for Debt Securities
Section 1401. Applicability of Article..................................77
Section 1402. Exchange of Capital Securities for Debt Securities
at Stated Maturity........................................77
Section 1403. Right of Early Exchange of Capital Securities for
Debt Securities...........................................78
Section 1404. Notices of Exchange.......................................79
Section 1405. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities..........................80
Section 1406. Election to Exchange......................................82
Section 1407. Deposit of Capital Exchange Price.........................82
Section 1408. Debt Securities Due on Capital Exchange Date;
Debt Securities Exchanged in Part.........................83
Section 1409. Form of Capital Security Election Form....................84
Section 1410. Fractional Capital Securities.............................85
Section 1411. Company to Obtain Governmental and Regulatory Approvals...85
Section 1412. Taxes on Exchange.........................................85
Section 1413. Covenants as to Capital Securities and
Secondary Offering........................................85
Section 1414. Provision in Case of Consolidation, Merger or
Transfer of Assets........................................86
Section 1415. Responsibility of Trustee.................................87
Section 1416. Revocation of Obligation to Exchange Capital Securities
for Debt Securities.......................................87
Section 1417. Optional Securities Funds.................................88
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ARTICLE FIFTEEN
Securities Funds
Section 1501. Creation of Securities Funds..............................89
Section 1502. Designations of Securities Funds..........................89
Section 1503. Covenant of the Company to Obtain Securities Funds........89
ARTICLE SIXTEEN
Meetings of Holders of Debt Securities
Section 1601. Purposes for Which Meetings May Be Called.................90
Section 1602. Call, Notice and Place of Meetings........................90
Section 1603. Persons Entitled to Vote at Meetings......................91
Section 1604. Quorum; Action............................................91
Section 1605. Determination of Voting Rights; Conduct and
Adjournment of Meetings...................................92
Section 1606. Counting Votes and Recording Action of Meetings...........93
ARTICLE SEVENTEEN
Defeasance
Section 1701. Termination of Company's Obligations......................93
Section 1702. Repayment to Company......................................95
Section 1703. Indemnity for Eligible Instruments........................95
ARTICLE EIGHTEEN
Subordination of Debt Securities
Section 1801. Debt Securities Subordinate to Senior Debt................95
Section 1802. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Debt; Trustee
Not Fiduciary to Holders of Senior Debt...................97
Section 1803. Payment Permitted If No Default...........................98
Section 1804. Trustee Not Charged with Knowledge of Prohibition.........98
Section 1805. Trustee to Effectuate Subordination.......................99
Section 1806. Rights of Trustee as Holder of Senior Debt................99
Section 1807. Article Applicable to Paying Agents.......................99
Section 1808. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt..................99
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ARTICLE NINETEEN
Conversion of Convertible Securities
Section 1901. Applicability of Article.................................100
Section 1902. Right to Convert.........................................100
Section 1903. Exercise of Conversion Privilege;
Delivery of Common Stock on Conversion; No Adjustment
for Interest or Dividends................................100
Section 1904. Cash Payments in Lieu of Fractional Shares...............102
Section 1905. Conversion Price.........................................102
Section 1906. Adjustment to Conversion Price...........................102
Section 1907. Effect of Reclassification, Consolidation,
Merger or Sale...........................................106
Section 1908. Taxes on Shares Issued...................................106
Section 1909. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock....................107
Section 1910. Responsibility of Trustee................................107
Section 1911. Notice to Holders Prior to Certain Actions...............108
Section 1912. Covenant to Reserve Shares...............................108
Testimonium ................................................................103
Signature and Seals ........................................................103
Acknowledgements ...........................................................104
Exhibit A ..................................................................A-1
Exhibit B ..................................................................B-1
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INDENTURE (the "Indenture") dated as of _____________________, between
WELLS FARGO & COMPANY, a Delaware corporation (hereinafter called the
"Company"), having its principal place of business at 420 Montgomery Street, San
Francisco, California 94163, and _________________________________________, a
national banking association (hereinafter called the "Trustee"), having its
Corporate Trust Office at -----------------------------------------------.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds and other evidences of indebtedness (herein called the
"Debt Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of
which this instrument was executed, except as provided in Section 905, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and,
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except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to Section
201 which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment or Place of
Capital Exchange, means any day which is not a Saturday or Sunday and which is
not a legal
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holiday or a day on which banking institutions or trust companies in that Place
of Payment or Place of Capital Exchange are authorized or obligated by law or
executive order to close.
"Capital Exchange Agent" means the Person or Persons appointed by the
Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fourteen.
"Capital Exchange Date", when used with respect to the Debt Securities of
any series, means any date on which such Debt Securities are to be exchanged for
Capital Securities pursuant to this Indenture.
"Capital Exchange Price", when used with respect to any Debt Security of
any series to be exchanged for Capital Securities, means the amount of Capital
Securities for which such Debt Security is to be exchanged pursuant to this
Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the Company which
consist of any of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock or (iii) securities which at the date of issuance may be issued in
exchange for, or the proceeds from the sale of which may be designated as
Securities Funds or Optional Securities Funds for the payment of the principal
of, "mandatory convertible securities" under applicable regulations of the
Primary Federal Regulator. Capital Securities may have such terms, rights and
preferences as may be determined by the Company.
"Capital Security Election Form" means a form substantially in the form
included in Section 1409.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A.
"Closing Price" has the meaning specified in Section 1906(d).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Stock" means, when used with reference to the capital stock of the
Company, the class of stock which, at the date of execution of this Indenture,
is designated as common stock of the Company and stock of any class or classes
into which such common stock or any such other class may thereafter be changed
or reclassified. In case by reason of the operation of Article Nineteen, the
Convertible Securities shall be convertible into any other shares or other
securities or property of the Company or any other corporation, any reference in
this Indenture to the conversion of Convertible Securities pursuant to Article
Nineteen shall be
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deemed to refer to and include conversion of Convertible Securities into such
other shares or other securities or property.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company, or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 1905.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which any particular time its corporate trust business shall be
administered.
The term "corporation" includes corporations, associations, companies and
business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
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"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Eligible Instruments" means monetary assets, money market instruments and
securities that are payable in Dollars only and essentially risk free as to
collection of principal and interest, including U.S. Government Obligations.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or part of
a series of Debt Securities in accordance with Section 303.
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"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Value" of any Capital Securities issued on any Capital Exchange
Date for Debt Securities of any series shall be the sale price of such Capital
Securities which are sold in the Secondary Offering for the Debt Securities of
such series. In the event no such Secondary Offering takes place, the Market
Value of such Capital Securities shall be the fair value of such Capital
Securities on such Capital Exchange Date for Debt Securities of such series as
determined by three independent nationally recognized investment banking firms
selected by the Company.
"Maturity", when used with respect to any Debt Security, means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of or counsel
for the Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Optional Securities Fund" means a fund pursuant to which the proceeds of
sales of Capital Securities may be designated on the books of the Company for
the payment of any of the principal of any Debt Security pursuant to Section
1417 of this Indenture.
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"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Debt Securities means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money or Eligible Instruments in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such Debt
Securities and any coupons appertaining thereto; provided, however, that if
such Debt Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Perpetual Preferred Stock" means any stock of any class of the Company
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Perpetual Preferred Stock of
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another class or series or with the proceeds of the sale of Common Stock or
Perpetual Preferred Stock.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Capital Exchange", when used with respect to Debt Securities of
any series, means any place where the Debt Securities of such series are
exchangeable for Capital Securities as specified pursuant to Section 301.
"Place of Payment", when used with respect to the Debt Securities of any
series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated
by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States federal
regulator of the Company (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution.
"ranking junior to the Debt Securities," when used with respect to any
obligation of the Company shall mean any obligation of the Company which (a)
ranks junior to and not equally with or prior to the Debt Securities (or any
other obligations of the Company ranking on a parity with the Debt Securities)
in right of payment upon the happening of any event of the kind specified in the
first sentence of the second paragraph in Section 1801 or (b) is specifically
designated as ranking junior to the Debt Securities by express provision in the
instrument creating or evidencing such obligation. The securing of any
obligations of the Company, otherwise ranking junior to the Debt Securities,
shall be deemed to prevent such obligations from constituting obligations
ranking junior to the Debt Securities.
"ranking on a parity with the Debt Securities," when used with respect to
any obligation of the Company shall mean any obligation of the Company which (a)
ranks equally with and not prior to the Debt Securities in right of payment upon
the happening of any event of the kind specified in the first sentence of the
second paragraph in Section 1801 or (b) is specifically designated as ranking on
a parity with the Debt Securities by express provision in the instrument
creating or evidencing such obligation. The securing of any obligations of the
Company, otherwise ranking on a parity with the Debt Securities, shall not be
deemed to prevent such obligations from constituting obligations ranking on a
parity with the Debt Securities.
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"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be repaid
upon exercise of an option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security to be
repaid upon exercise an option for repayment by the Holder, means the price at
which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Rights" has the meaning specified in Section 1906(c).
"Secondary Offering", when used with respect to the Debt Securities of any
series, means the offering and sale by the Company of Capital Securities for the
account of Holders of Debt Securities of such series who elect to receive cash
and not Capital Securities on the Capital Exchange Date for such series.
"Securities Fund" means a fund pursuant to which the proceeds of sales of
Capital Securities are designated on the books of the Company for the payment of
any principal of any Debt Security pursuant to the provisions of Section 1501.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
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"Senior Debt" means
(i) any of the Company's indebtedness for borrowed or purchased money,
whether or not evidenced by bonds, debentures, notes or other written
instruments,
(ii) the Company's obligations under letters of credit,
(iii) any of the Company's indebtedness or other obligations with
respect to commodity contracts, interest rate and currency swap agreements,
cap, floor and collar agreements, currency spot and forward contracts, and
other similar agreements or arrangements designed to protect against
fluctuations in currency exchange or interest rates, and
(iv) any guarantees, endorsements (other than by endorsement of
negotiable instruments for collection in the ordinary course of business)
or other similar contingent obligations in respect of obligations of others
of a type described in clauses (i), (ii) and (iii), whether or not such
obligation is classified as a liability on a balance sheet prepared in
accordance with generally accepted accounting principles,
in each case whether outstanding on the date of execution of this Indenture or
thereafter incurred, other than obligations ranking on a parity with the Debt
Securities or junior to the Debt Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to Debt Securities
of that series.
"United States" means the United States of America (including the District
of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien
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fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 102. Compliance Certificates and Opinions .
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee, if so requested by the Trustee, an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee .
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Debt Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Debt Securities
duly called and held in accordance with the provisions of Article Sixteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution
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of any such instrument or of a writing appointing any such agent, or the holding
by any Person of a Debt Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Debt Securities shall be proved in the manner provided in
Section 1606.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debt Security shall bind every future holder
of the same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, suffered or omitted by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Debt
Security.
(g) For purposes of determining the principal amount of Outstanding Debt
Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
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terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company, by Holders
of the required aggregate principal amount of the Outstanding Debt Securities of
such series (or, if there is no such rate on such date, such rate on the date
determined as specified as contemplated in Section 301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided),
if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York
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and, if the Debt Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, in London, and, if the Debt Securities of such series
are then listed on the Luxembourg Stock Exchange and such stock exchange shall
so require, in Luxembourg and, if the Debt Securities of such series are then
listed on any other stock exchange outside the United States and such stock
exchange shall so require, in any other required city outside the United States
or, if not practicable, in Europe on a Business Day at least twice, the first
such publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or impracticable to mail
notice of any event to Holders when said notice is required to be given pursuant
to any provision of this Indenture or of the Debt Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice. In any case where notice to Holders of
Registered Securities is to be given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
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SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Capital
Exchange Date, Repayment Date or Stated Maturity of any Debt Security shall not
be a Business Day at any Place of Payment or Place of Capital Exchange, then
(notwithstanding any other provision of this Indenture or of the Debt Securities
or coupons) payment of interest or principal (and premium, if any) or exchange
of Debt Securities for Capital Securities or cash need not be made at such Place
of Payment or Place of Capital Exchange on such date, but may be made on the
next succeeding Business Day at such Place of Payment or Place of Capital
Exchange with the same force and effect as if made on the Interest Payment Date,
Capital Exchange Date, Redemption Date, Repayment Date or at the Stated
Maturity, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, Capital Exchange Date or
Stated Maturity, as the case may be.
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SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
ARTICLE TWO
Debt Security Forms
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially the form (including
temporary or permanent global form) as shall be established in or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with the rules of any securities exchange,
or as may, consistently herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt
Securities or coupons. If the form of Debt Securities of any series or coupons
(including any such Global Security) is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such Debt
Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt Securities
in bearer form other than Debt Securities in temporary or permanent global form
shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
________________________________
as Trustee
By_______________________________
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(12) of Section 301 and the provisions of Section 302, such Global Security
shall represent such of the outstanding Debt Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Debt Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amounts, of
Outstanding Debt Securities represented thereby shall be made in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to any
Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
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ARTICLE THREE
The Debt Securities
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 906, 1107,
1303, 1408 or 1903 and except for any Debt Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Registered Security
on any Interest Payment Date and the circumstances, if any, in which the
Company may defer interest payments;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Debt Securities of the series and this
Indenture may be served and where notices to Holders pursuant to Section
106 will be published;
(6) if applicable, the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Debt
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Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) if applicable, the place or places at which, the period or periods
within which, the price or prices at which and the terms and conditions
upon which Debt Securities shall be exchangeable for Capital Securities of
the Company, which terms and conditions shall not be inconsistent with
Article Fourteen;
(8) any covenant or option of the Company to create a Securities Fund
for the repayment of the Debt Securities and the terms and conditions of
such Securities Fund, which terms and conditions shall not be inconsistent
with Article Fifteen;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(10) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(11) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(12) if Debt Securities of the series are to be issuable initially in
the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Debt Securities
and whether the definitive Debt Securities will be Registered and/or Bearer
Securities and will be in global form and whether interest in respect of
any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Global Exchange Date shall be paid to any
clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(13) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1006;
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(14) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the denomination
of $5,000;
(15) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(16) the currency or currencies of denomination of the Debt Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(17) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and Exchange Rate Agent;
(18) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index based on a currency or currencies other than that in
which the Debt Securities are denominated or designated to be payable, the
manner in which such amounts shall be determined;
(19) if payments of principal of (and premium, if any) or interest on
the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined or if the Exchange Rate is to be determined otherwise than as
provided in Section 101;
(20) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(21) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of Debt Securities
of the series in lieu of any covenant or warranty set forth herein for the
benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of
all series shall not be for the benefit of Debt Securities of such series,
or any combination
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of such covenants, warranties or provisions and whether the provisions of
Section 1005 will not apply such covenants and warranties;
(22) the terms and conditions, if any, pursuant to which the Company's
obligations under this Indenture may be terminated through the deposit of
money or Eligible Instruments as provided in Articles Four and Seventeen;
(23) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee;
(24) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price and
the date on which the right to convert expires; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
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multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or coupons of any series or did not hold such offices at the date of
such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, Debt Securities of any series may be executed by the Company and
delivered to the Trustee for authentication, and, except as otherwise provided
in this Article Three, shall thereupon be authenticated and delivered by the
Trustee upon Company Order, without any further action by the Company; provided,
however, that, in connection with its original issuance, a Bearer Security may
be delivered only outside the United States and, except in the case of a
temporary Global Security, only if the Company or its agent shall have received
the certification required pursuant to Sections 304(b)(iii) and (iv), unless
such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
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In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of the
Debt Securities of such series and coupons, if any, pursuant to Sections
201 and 301 and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Debt Securities have been
complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any,
has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if any,
have been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 301 in conformity with
the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except that where
Debt Securities of any series are to be exchanged for Capital
Securities or paid from the Securities Fund, the issuance of Capital
Securities will require further action by the Board of Directors, and
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and the application of general principles
of equity and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Debt Securities
denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (ii) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States.
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(c) If the Company shall establish pursuant to Section 301 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in permanent or
temporary form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
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SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any series,
the Company may execute, and upon receipt of documents required by Sections 301
and 303, together with a Company Order, the Trustee shall authenticate and
deliver, temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor and terms of the definitive Debt Securities in lieu of which they are
issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt
Securities may determine, as evidenced by their signatures on such Debt
Securities. In the case of Debt Securities of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form, representing
all or any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form, if
temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in
exchange for a Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Debt Securities (the "Global Exchange
Agent"), in an aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the
Global
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Exchange Date, such temporary Global Security shall be surrendered by the
Depositary to the Global Exchange Agent, to be exchanged, in whole or from
time to time in part, for definitive Debt Securities without charge and the
Trustee or the Global Exchange Agent, if authorized by the Trustee pursuant
to Section 614, shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such temporary
Global Security to be exchanged. Upon any exchange of a part of such
temporary Global Security for definitive Debt Securities, the portion of
the principal amount and any interest thereon so exchanged shall be
endorsed by the Global Exchange Agent on a schedule to such temporary
Global Security, whereupon the principal amount and interest payable with
respect to such temporary Global Security shall be reduced for all purposes
by the amount so exchanged and endorsed. The definitive Debt Securities to
be delivered in exchange for any such temporary Global Security shall be in
bearer form, registered form, global registered form or global bearer form,
or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, in the case of the
exchange of the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation by
the Depositary, such temporary Global Security shall be accompanied by a
certificate signed by Euroclear as to the portion of such temporary Global
Security held for its account then to be exchanged and a certificate signed
by CEDEL S.A. as to the portion of such temporary Global Security held for
its account then to be exchanged, each in the form set forth in Exhibit B
to this Indenture, unless such certificate(s) shall have been provided
earlier pursuant to section 304(b)(v) hereof; and provided, further, that
definitive Bearer Securities (including a definitive Global Bearer
Security) shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a series
in a temporary Global Security shall be exchanged for definitive Debt
Securities of the same series and of like tenor and terms following the
Global Exchange Date when the account holder instructs Euroclear or CEDEL
S.A., as the case may be, to request such exchange on such account holder's
behalf and, in the case of the exchange of the temporary Global Security
for definitive Bearer Securities (including a definitive Global Bearer
Security), unless such certificate(s) shall have been provided earlier
pursuant to Section 304(b)(v) hereof, the account holder delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form set
forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no
earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in
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the event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and CEDEL S.A. Definitive
Debt Securities in bearer form to be delivered in exchange for any portion
of a temporary Global Security shall be delivered only outside the United
States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same
series and of like tenor and terms authenticated and delivered hereunder,
except that interest payable on a temporary Global Security on an Interest
Payment Date shall be payable to Euroclear and CEDEL S.A. on such Interest
Payment Date only if there has been delivery by Euroclear and CEDEL S.A. to
the Global Exchange Agent of a certificate or certificates in the form set
forth in Exhibit B to this Indenture dated no earlier than the first
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture dated no earlier than the first Interest
Payment Date. Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company in
accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 305
and Section 1002, with respect to the Debt Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Debt Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such Debt
Securities and transfers and exchanges of such Debt Securities as herein
provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
form and denomination, of like tenor and terms and aggregate principal amount,
upon surrender of the
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Registered Securities to be exchanged at such office or agency. Bearer
Securities may not be delivered in exchange for Registered Securities.
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor and terms after the close of business at such
office or agency of (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Debt Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 303(h), the
Company shall appoint a successor Depositary with respect to the Debt Securities
of such series. If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 301(11) shall no longer be effective with respect to the Debt
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form in an aggregate principal amoun equal to the
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principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in
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exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Registered Securities to the persons in whose names such Debt Securities
are so registered. The Trustee shall deliver Bearer Securities issued in
exchange for a Global Security pursuant to this Section to the persons, and in
such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
All Debt Securities issued upon any registration of transfer or exchange of
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Debt Securities of any particular series to be redeemed or exchanged
for Capital Securities for a period of fifteen days preceding the first
publication of the relevant notice of redemption or, if Registered Securities
are outstanding and there is no publication, the mailing of the relevant notice
of redemption or exchange, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption or exchange in whole or in part,
except the unredeemed or unexchanged portion of such Registered Security being
redeemed or exchanged in part, or (iii) to exchange any Bearer Security so
selected for redemption or exchange except that such a Bearer Security may be
exchanged for a Registered Security of like tenor and terms of that series,
provided that such Registered Security shall be simultaneously surrendered for
redemption or exchange.
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Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a mutilated
coupon appertaining to it is surrendered to a Paying Agent outside the United
States designated by the Company, or, in the case of any Registered Security, to
the Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or coupon,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by the to save each of them harmless, then, in the absence of
notice to the Company and the Trustee that such Debt Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and printing expenses)
connected therewith.
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Every new Debt Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Debt Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that series and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of suc series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee
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an amount of money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holder
of such Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money and/or Eligible Instruments when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
fo the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements satisfactory to
the Trustee with respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series held by, the
Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securitie of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Subject to the limitations set forth in Section 1002, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
If any Registered Security is exchanged for Capital Securities after any
record date and on or prior to the next succeeding Interest Payment Date (other
than any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be paid by
the Company on such Interest Payment Date notwithstanding such exchange, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Debt Security is registered at the close
of business on such record date.
If any Bearer Security is exchanged for Capital Securities after any record
date and on or prior to the next succeeding Interest Payment Date (other than
any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid by the
Company pursuant to such procedures as may be satisfactory to the Trustee.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments
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made on account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities, all
Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture or a Debt Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt Securities
of any series that, to the fullest extent possible under applicable law and
except as may otherwise be specified as contemplated in Section 301, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Debt Securities of any series and any appurtenant coupons in
a Foreign Currency, composite currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 301 is of the essence and agrees that
judgments in respect of such Debt Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such Debt
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or
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otherwise), be discharged only to the extent of the amount in the Designated
Currency that the Holder receiving such payment may, in accordance with normal
banking procedures, purchase with the sum paid in such other currency (after any
premium and cost of exchange) in the country of issue of the Designated Currency
in the case of Foreign Currency or Dollars or in the international banking
community in the case of a composite currency on the Business Day immediately
following the day on which such Holder receives such payment; (c) if the amount
in the Designated Currency that may be so purchased for any reason falls short
of the amount originally due, the Company shall pay such additional amounts as
may be necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect,
including the provisions of Article Eighteen hereof (except as to any surviving
rights of registration of transfer or exchange of Debt Securities herein
expressly provided for and rights to receive payments of principal and interest
thereon and any right to receive additional amounts, as provided in Section
1006) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and delivered and
all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has
been waived as provided in Section 305, (ii) Debt Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (iii) coupons appertaining to Bearer
Securities called for redemption or surrendered for repayment and maturing
after the relevant Redemption Date or Repayment Date, as appropriate,
surrender of which has been waived as provided in Section 1106 or 1303 and
(iv) Debt Securities and coupons for whose payment money and/or Eligible
Instruments have theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee cancelled or for cancellation; or
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(B) all such Debt Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of Debt Securities) will provide money in such
amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay and discharge
the entire indebtedness on such Debt Securities and coupons of such series
for principal (and premium, if any) and interest, and any mandatory sinking
fund, repayment or analogous payments thereon, on the scheduled due dates
therefor to the date of such deposit (in the case of Debt Securities and
coupons which have become due and payable) or to the Stated Maturity or
Redemption Date, if any, and all Repayment Dates (in the case of Debt
Securities repayable at the option of the Holders thereof); provided,
however, that in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a successor statute is filed with respect to the
Company within 91 days after the deposit, the obligations of the Company
under the Indenture with respect to the Debt Securities of such series
shall not be deemed terminated or discharged, and in such event the Trustee
shall be required to return the deposited money and Eligible Instruments to
the Company;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the
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obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money and Eligible Instruments.
(a) Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
401, 403 or 1701 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
(b) The Trustee shall deliver or pay to the Company from time to time upon
Company Request any Eligible Instruments or money held by it as provided in
Section 403 or 1501 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such Eligible
Instruments or money wer deposited or received.
(c) If this Section 402(c) is specified, as contemplated by Section 301, to
be applicable to the Debt Securities of any series, the Trustee shall deliver to
the Company from time to time upon Company Request any Eligible Instruments held
by it as provided in Section 403 or 1501, provided that the Company in
substitution therefor simultaneously delivers to the Trustee, money or other
Eligible Instruments which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, would then be sufficient to satisfy the Company's
payment obligations in respect of the Debt Securities in the manner contemplated
by Section 403 or 1501.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt Securities of
any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Debt Securities of any series, then, notwithstanding Section 401,
(i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Eighteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of
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that series on that day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Debt Securities, the Company's
obligations with respect to such Debt Securities under Sections 304, 305, 306,
1002, 1003 and 1006 and the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including those under Section 607 hereof); and (iii) the
Trustee, at the expense of the Company, shall, upon Company Order, execute
proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such series and
related coupons, with reference to this Section 403, the Company has
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to comply with
the provisions of this Section 403 applicable to it) irrevocably, as trust
funds in trust, money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be sufficient to pay and discharge (i) the principal of
(and premium, if any) and interest on the Outstanding Debt Securities of
that series and related coupons on the Stated Maturity of such principal or
interest or, if such series may be redeemed by the Company prior to the
Stated Maturity thereof, and the Company shall have given irrevocable
instructions to the Trustee to effect such redemption, at the date fixed
for such redemption pursuant to Article Eleven, and (ii) any mandatory
sinking fund payments or analogous payments applicable to Debt Securities
of such series on the date on which such payments are due and payable in
accordance with the terms of this Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 301,
to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with respect
to the Outstanding Debt Securities of such series and related coupons;
(3) such deposit will not result in a breach of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice or lapse
of time, or both, would become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be continuing on the date of
such deposit and no
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Event of Default under Section 501(1) or Section 501(2) or event which, with the
giving of notice or lapse of time, or both, would become an Event of Default
under Section 501(1) or Section 501(2) shall have occurred and be continuing on
the 91st day after such date; provided, however, that should that condition fail
to be satisfied on or before such 91st day, the Trustee shall promptly, upon
satisfactory receipt of evidence of such failure, return such deposit to the
Company;
(5) the Company has delivered to the Trustee an Opinion of Counsel to the
effect that (a) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (b) since the date of this Indenture
there has been a change in applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of Debt Securities and related coupons of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred;
(6) if the Debt Securities of that series are then listed on any domestic
or foreign securities exchange, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that such deposit, defeasance and discharge
will not cause such Debt Securities to be delisted;
(7) such deposit shall have been effected in compliance with any additional
terms, conditions or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301; and
(8) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness of all Outstanding Debt Securities and related coupons have been
complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above shall
be irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. If any Outstanding Debt
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403 with
respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be
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discharged from any payment obligations in respect of Debt Securities of such
series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or the consent by
the Company to the entry of a decree or order for relief in an involuntary
case under any such law; or
(3) any other Event of Default, if any, provided with respect to Debt
Securities of such series specified as contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of Outstanding
Debt Securities of such series may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of and
all accrued but unpaid interest on all the Debt Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if
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given by such Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. Upon payment of such
amount, all obligations of the Company in respect of the payment of principal of
the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt Securities
of such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of the principal of such series which
have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security or any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series, or
(4) default is made in any required designation of funds as Securities
Funds, or
(5) default is made in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of series of Debt Securities other
than such series), and such default or breach continues for a period of 30
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest, sinking fund installment and interest, including the delivery of any
Capital Securities then required to be delivered, and, to the extent that
payment of such interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and, upon overdue installments of interest, at
the rate or rates prescribed therefor in such Debt Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts (including the delivery of any
Capital Securities then required to be delivered) forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and the
delivery of any Capital Securities required to be delivered and not so
delivered, or, in the case of the failure to deliver Capital Securities, money
equal to the principal amount of the Debt Securities for which the Capital
Securities were to be exchanged, and may prosecute such proceeding to judgment
or final decree, and may enforce
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the same against the Company or any other obligor upon such Debt Securities and
coupons and collect the moneys (or money equal to the principal amount of any
Debt Securities for which Capital Securities were to be exchanged) adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Debt Securities and coupons, wherever
situated.
If an Event of Default with respect to Debt Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Debt Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name, as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Debt Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of amounts then due and unpaid to the holders
of Senior Debt, to the extent required by Article Eighteen;
THIRD: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Debt Securities and any
coupons, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively. The
Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
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FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Exchange Debt Securities for Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Debt Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Debt Security or payment of such coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on the Redemption Date or
the Repayment Date, as the cas may be), to have the Debt Securities exchanged
for Capital Securities pursuant to Article Fourteen, if applicable, and to
institute suit for the enforcement of any such payment or exchange, and such
right shall not be impaired without the consent of such Holder, subject,
however, to the provisions of Article Eighteen.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
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(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt Security
or coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Company or the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security or the payment of any coupons on or after
the respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be) or for the enforcement of the right
to exchange any Debt Securities for Capital Securities as provided in Article
Fourteen.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law whenever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided in the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liabilit is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any series
the Trustee shall transmit by mail to all Holders of Debt Securities of such
series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or any related coupons or in the payment of any sinking
fund installment with respect to Debt Securities of such series or in the
exchange of Capital Securities for Debt Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Debt Securities
of such series. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Debt Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any signature, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Debt Securities of such series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Capital Exchange Agent,
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Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of
the Trustee and the Trustee shall not be responsible for any act or omission by
any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons or any Capital Securities. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no representations
to the Company's ability or authority to issue Bearer Securities or the
lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other agent of
the Company or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities and coupons, and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such agent.
Section 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder which shall have been separately
agreed to by the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel),
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except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
claim, loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Debt Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Debt Securities or any coupons. The claims of the
Trustee under this Section shall not be subject to the provisions of Article
Eighteen.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under (a) this Indenture with respect to Debt Securities of any
particular series of Debt Securities other than that series and (b) the
Indenture dated __________________.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in
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accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with respect to
the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or
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taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee. In
addition, the Company may remove the Trustee if the Company shall determine by a
Board Resolution that the services provided by the Trustee may be obtained at a
substantially lower cost to the Company.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Debt Securities, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Debt Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to th Debt Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Debt Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Debt Securities of any series shall
have been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafte provided, any Holder who has been a bona fide Holder of a
Debt Security of such series for at least six months may, subject to Section
514, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee upon payment of its charges and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be truste of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon the
Debt Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding collection of claims against the Company (or any such
other obligor).
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more authenticating
agents (including, without limitation, the Company or any Affiliate thereof)
with respect to one or more series of Debt Securities which shall be authorized
on behalf of the Trustee in authenticating Debt Securities of such series in
connection with the issue, delivery, registration of transfer, exchange, partial
redemption or repayment of such Debt Securities. Wherever reference is made in
this Indenture to the authentication of Debt Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of
the United States or of any State, having a combined capital and surplus of at
least $1,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by Federal or State authorities or the equivalent
foreign authority, in the case of an authenticating agent who is not organized
and doing business under the laws of the United States or of any State thereof
or the District of Columbia.
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The Trustee hereby initially appoints Norwest Bank Minnesota, N.A. as its
authenticating agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or more
series of Debt Securities by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time terminate the agency of any
authenticating agent with respect to one or more series of Debt Securities by
giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may appoint
a successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment, subject to the provisions
of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall be
applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt Securities
of each series covered by such appointment may have endorsed thereon, in lieu of
the Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
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This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
By ________________________________________
As Authenticating Agent for the Trustee
By ________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record Date
in respect of the Debt Securities of such series or on May 15 and November
15 of each year with respect to each series of Debt Securities for which
there are no Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered
Securities as of such Regular Record Date or May 1 or November 1, as the
case may be, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or
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Security Registrar, if so acting. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished. The
Trustee shall preserve for at least two years the names and addresses of Holders
of Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Debt Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee shall be held accountable by reason of any disclosure of information
as to the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the
Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture and such other matters as may be required
pursuant to the Trust Indenture Act in the manner required by the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Debt Securities of such series are listed, with the Commission and also
with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the time and
in the manner pursuant to such Act; provided that such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series as
permitted by Sections 201 and 301; or
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(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(9) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Debt Securities of any series or any appurtenant
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of all series affected by such
supplemental indenture, acting together as a class, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities of such series and any related coupons; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal or any installment of
principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment, or the
coin or currency in which any Debt Security or the interest thereon or any
coupon is payable, or impair any right to the delivery of Capital
Securities in exchange for Debt Securities provided for in this Indenture
or the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date or Capital
Exchange Date, as the case may be), or
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(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1604 for quorum or voting,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1005, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1005, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Debt Securities of any series to
receive Capital Securities on any Capital Exchange Date for Debt Securities
of such series with a Market Value equal to the principal amount of such
Holder's Debt Securities of such series or in an amount sufficient to
provide proceeds upon sale by the Company in the Secondary Offering equal
to the principal amount of such Holder's Debt Securities of such series; or
(6) impair the right of any Holder of Convertible Securities of any
series to convert such Debt Securities pursuant to Article Nineteen;
and provided, further, that no change shall be made in the provisions of Article
Eighteen that will affect adversely the holders of Senior Debt without the
consent of the holders of all Senior Debt Outstanding.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders of the Debt Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplementa indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and any appurtenant coupons that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities and any
appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture.
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Any interest due on Bearer Securities on or before Maturity, other than
additional amounts, if any, payable as provided in Section 1006 in respect of
principal of (or premium, if any, on) such a Debt Security, shall be payable
only upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. For all purposes
of this Indenture, the exchange of Capital Securities for Debt Securities of any
series pursuant to the Indenture shall constitute full payment of principal of
the Debt Securities of such series being exchanged on any Capital Exchange Date
for Debt Securities of such series, without prejudice to any Holder's rights
pursuant to Section 1413.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Debt
Securities an office or agency where Debt Securities (but, except as otherwise
provided below, unless such Place of Payment is located outside the United
States, not Bearer Securities) may be presented or surrendered for payment,
where Debt Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debt Securities and this Indenture may be served. If Debt Securities of a series
are issuable as Bearer Securities, the Company will maintain, subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); provided, however,
that i the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, payment
of principal of and any premium and interest denominated in Dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices outside the
United States maintained for the purpose
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by the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions and the Trustee
receives an Opinion of Counsel that such payment within the United States is
legal. Unless otherwise provided a contemplated by Section 301 with respect to
any series of Debt Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of such Place of Payment) where the Debt Securities
of one or more series and any appurtenant coupons (subject to the preceding
paragraph) may be presented or surrendered for any or all such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an offic or agency in each Place of Payment for any
series of Debt Securities for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of Debt
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series and any
appurtenant coupons in trust
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for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series or any appurtenant
coupons; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its obligations
under this Indenture with respect to Debt Securities of any series or for any
other purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee such Paying Agent shall be released from all further
liability with respect to such money.
Any principal and interest received on the Eligible Instruments deposited
with the Trustee or any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
paymen thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
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SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
SECTION 1005. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition applicable to the Debt Securities of any series pursuant to Section
301 unless such covenant or condition is determined pursuant to Section 301 not
to be subject to this provision if, before the time for such compliance the
Holders of at least a majority in principal amount of all series of the Debt
Securities at the time Outstanding to which such covenant or condition applies
shall, acting together as a class, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Debt Security of any series
or any coupon appertaining thereto additional amounts upon the terms and subject
to the conditions provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Debt Security of any series or any related
coupon or the net proceed received on the sale or exchange of any Debt Security
of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided for in the terms of such Debt Securities and this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Debt Securities (or if the Debt Securities of that series will
not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying
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Agents, if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of (and premium, if any) or interest on the Debt Securities of that series shall
be made to Holders of Debt Securities of that series or the related coupons who
are United States Aliens withou withholding for or on account of any tax,
assessment or other governmental charge described in the Debt Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Debt Securities or coupons and the Company
will pay to the Trustee or such Paying Agent the additional amounts, if any,
required by the terms of such Debt Securities and the first paragraph of this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such
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method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Registered
Securities or Bearer Securities (if issued in more than one authorized
denomination) of such series of a denomination larger than the minimum
authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at such
place or places which are outside the United States, except as otherwise
provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the case,
and
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(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election of
the Company shall be given by the Company, or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 1002, unless otherwise
specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt Securities to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of a series except as otherwise specified as
contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
term of Debt Securities of
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any series is herein referred to an "optional sinking fund payment". If provided
for by the terms of Debt Securities of any series, the amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Debt Securities of
any series as provided for by the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Debt Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation o the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Debt Securities in lieu of cash
payments pursuant to this Section 1202, the principal amount of Debt Securities
to be redeemed in order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Debt Securities for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Debt Securities purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the
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Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Debt Security to be repaid in
whole or in part together with written notice of the exercise of such option at
any office or agency of the Company in a Place of Payment, not less than 30 nor
more than 45 days prior to the Repayment Date; provided, however, that surrender
of Bearer Securities together with written notice of exercise of such option
shall be made at an office or agency located outside the United States except as
otherwise provided in Section 1002. Such notice, which shall be irrevocable,
shall specify the principal amount of such Debt Security to be repaid, which
shall be equal to the minimum authorized denomination for such Debt Security or
an integral multiple thereof, and shall identify the Debt Security to be repaid
and, in the case of a partial repayment of the Debt Security, shall specify the
denomination or denominations of the Debt Security or Debt Securities of the
same series to be issued to the Holder for the portion of the principal of the
Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such
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Bearer Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Repayment Price, such Holder shall be entitled to receive the amount so deducted
without interest thereon; provided, however, that interest represented by
coupons shall be payable only at an office or agency located outside the United
States except as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Debt Security so surrendered which is not to be
paid; provided, however, that the issuance of a Registered Security therefor
shall be subject to applicable laws and regulations, including provisions of the
United States Federal income tax laws and regulations in effect at the time of
the exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Debt Securities shall relate, in the
case of any Debt Security repaid or to be repaid only in part, to the portion of
the principal of such Debt Security which has been or is to be repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Debt Securities
of such series from the Holders thereof who give notice and surrender their Debt
Securities in accordance with Section 1303.
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SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Debt Securities so to be repaid having been surrendered as aforesaid, such Debt
Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides for the exchange of Capital Securities for Debt Securities of any
series at the election of the Company or otherwise, Debt Securities of such
series shall be exchanged for Capital Securities in accordance with their terms
and (except as otherwise specified in such Officers' Certificate or supplemental
indenture) in accordance with this Article.
SECTION 1402. Exchange of Capital Securities for Debt Securities at Stated
Maturity.
At the Stated Maturity of Debt Securities of any series which may be
exchanged, subject to prepayment prior to such Stated Maturity on the Capital
Exchange Date selected by the Company for Debt Securities of such series, as
described below, early exchange pursuant to Section 1403 or payment in cash
pursuant to Section 502, 1416 or 1417, the Company shall exchange Capital
Securities with a Market Value equal to the principal amount of the Outstanding
Debt Securities of such series for the Debt Securities of such series in whole.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent as to the type of Capital Securities to be exchanged
for the Debt Securities of such series on the Capital Exchange Date for Debt
Securities of such series. Such notice shall include a form of Capital Security
Election Form substantially as set forth in Section 1409, shall make the
statements and contain the information included in Section 1404(a), and shall be
given no less than 90 days prior to the Stated Maturity of such Debt Securities.
Notice of such Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination
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of the Debt Securities of such series, if larger, shall also be given by the
Company in the manner required by Section 1404(b) not less than three Business
Days prior to such Capital Exchange Date.
The Capital Exchange Date for any prepayment of Debt Securities of each
series may be selected by the Company to be any date between a date 60 days
prior to the Stated Maturity of such Debt Securities and such Stated Maturity,
inclusive, and to be the date of the closing of the Secondary Offering for Debt
Securities of such series. In the event the Company fails to effect such
Secondary Offering, the Capital Exchange Date will be the Stated Maturity of the
Debt Securities of such series Notice of each such Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of the Debt Securities of such series, if larger, shall also be given by the
Company in the manner required by Section 1404(b) not less than three Business
Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing of
the Secondary Offering will occur on the Capital Exchange Date.
SECTION 1403. Right of Early Exchange of Capital Securities for Debt
Securities.
The Debt Securities of any series to be exchanged may be exchanged at the
election of the Company, as a whole or from time to time in part, prior to the
Stated Maturity thereof for Capital Securities with a Market Value equal to the
principal amount of such Debt Securities on any early Capital Exchange Date,
together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent not less than 90 days nor more than 120 days prior to
any early Capital Exchange Date for Debt Securities of such series, which notice
shall include a form of Capital Security Election Form substantially as set
forth in Section 1409 and make the statements and contain the information
included in Section 1404(a). Notice of each such early Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of such series, if larger, shall also be given by the Company in the manner
required by Section 1404(b) not less than three Business Days prior to such
early Capital Exchange Date.
The Company may at its option accelerate any such Capital Exchange Date
within the 60-day period prior to such Capital Exchange Date by giving notice of
such accelerated Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of such series, if larger, in the
manner required by Section 1404(b) not less than three Business Days prior to
such accelerated Capital Exchange Date.
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The Company will effect each Secondary Offering such that the closing of
such Secondary Offering will occur on the Capital Exchange Date.
SECTION 1404. Notices of Exchange.
(a) All notices of exchange subject to this paragraph shall state:
(1) the type of Capital Securities to be exchanged for the Debt
Securities of such series on the Capital Exchange Date for Debt Securities
of such series;
(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such series being exchanged
will receive on such Capital Exchange Date accrued and unpaid interest in
cash and may elect to receive on such Capital Exchange Date Capital
Securities with a Market Value equal to the principal amount of the Debt
Securities of such series owned by such Holder and that, in the absence of
any such election by the Holder, such Holder will be deemed to have
received on such Capital Exchange Date Capital Securities having such
Market Value and to have elected to have such Capital Securities sold for
such Holder by the Company in the related Secondary Offering for cash
proceeds to such Holder on such Capital Exchange Date equal to the
aggregate principal amount of all Debt Securities of such series being
exchanged owned by such Holder;
(4) that on such Capital Exchange Date the Capital Exchange Price will
become due and payable upon each such Debt Security to be exchanged and
that interest thereon will cease to accrue on and after said date;
(5) if less than all the Outstanding Debt Securities of any series are
to be exchanged, the identification and principal amount of the particular
Debt Securities to be exchanged;
(6) that each Holder for whom Capital Securities are being offered in
the Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the
Company deems necessary or appropriate to effect such Secondary Offering;
(7) (A) that the Company will assume, unless advised to the contrary
in writing within 30 days after the date of notice of exchange, that the
Capital Securities are to be offered for the account of the Holder, that
such Holder has not held any position, office or other material
relationship with the Company within three years preceding the Secondary
Offering, that the Holder owns no other Capital Securities, and that after
completion of the Secondary Offering the Holder wil own less than one
percent of the class of such Capital Securities, and (B) that if any of
these assumptions is not correct, the Holder shall promptly so advise the
Company;
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(8) the Place or Places of Capital Exchange;
(9) that Bearer Securities may be surrendered for payment or exchange
only at a Place or Places of Capital Exchange which are outside the United
States, except as otherwise provided in Section 1002; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall be given in the
manner provided in Section 106 to each Holder of Debt Securities to be
exchanged, and the Company shall forthwith give such notice by telephone to the
Trustee and the Capital Exchange Agent, promptly confirmed in writing.
(c) (1) Except as may otherwise be specified pursuant to Section 301 for
Debt Securities of any series, if less than all the Debt Securities of any
series are to be exchanged, the Company shall at least 135 days prior to the
related Capital Exchange Date (unless a shorter period shall be satisfactory to
the Trustee) notify the Trustee of such Capital Exchange Date and of the
principal amount of Debt Securities of such series to be exchanged and the
particular Debt Securities to be exchanged shall be selected not more than 135
days prior to the related Capital Exchange Date by the Trustee, from the
Outstanding Debt Securities of such series not previously exchanged, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for exchange of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Registered or Bearer Securities of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
In any case where Debt Securities of such series are registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Debt Security of such series.
(2) The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for exchange and, in the case of any Debt Securities
selected for partial exchange, the principal amount thereof to be exchanged.
(3) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the exchange of Debt Securities shall
relate, in the case of any Debt Securities exchanged or to be exchanged only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be exchanged.
SECTION 1405. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities.
(a) Subject to Section 503, and without prejudice to the rights pursuant to
Section 1413 of Holders of Debt Securities of any series to be exchanged, no
Holder of Debt
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Securities of such series shall be entitled to receive any cash from the Company
on any Capital Exchange Date or at the Stated Maturity of any Debt Security of
such series except from the proceeds of the sale of such Holder's Capital
Securities in the related Secondary Offering and except as provided herein with
respect to fractional Capital Securities, amounts equal to expenses of the sale
in the related Secondary Offering of such Capital Securities, accrued and unpaid
interest and acceleration upon an Event of Default. In the event that the
Company does not effect such Secondary Offering, such Holder will receive
Capital Securities with a Market Value equal to the principal amount of Debt
Securities of such series owned by such Holder which are subject to such
exchange and not cash other than in lieu of any fractional Capital Securities
and for accrued and unpaid interest, without prejudice to such Holder's rights
pursuant to Section 1413.
(b) Each Holder for whom Capital Securities are being offered in the
Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days following the
date of the notice described in Section 1404(a) by any Holder for whom Capital
Securities are being offered in the Secondary Offering, the Company shall assume
for the purposes of any Secondary Offering that the Capital Securities are to be
offered for the account of such Holder, that such Holder has not held any
position, office or other material relationship with the Company within three
years preceding the Secondary Offering, that such Holder owns no other Capital
Securities, and that after completion of the Secondary Offering such Holder will
own less than one percent of the class of such Capital Securities.
(d) Each Holder for whom Capital Securities are being offered in the
Secondary Offering agrees to indemnify and hold harmless the Company, any other
Holder, and any underwriter, agent or other similar person from and against any
and all losses, claims, damages and liabilities resulting from or based upon any
untrue statement or alleged untrue statement of any material fact contained in
any notice of exchange, any offering memorandum or selling document or
registration statement relating to the Secondary Offering, any preliminary
prospectus or prospectus contained therein, or any amendment thereof or
supplement thereto, or resulting from or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue statement,
alleged untrue statement, omission or alleged omission is made therein (i) in
reliance upon and in conformity with any written information furnished to th
Company by or on behalf of any such Holder specifically for use in connection
with the preparation thereof or (ii) because of such Holder's failure to advise
the Company in writing that any of the assumptions described in Section
1404(a)(7)(A) and Subsection (c) of this Section is incorrect.
(e) In order for any Holder who has duly returned a Capital Security
Election Form to receive Capital Securities on any Capital Exchange Date for any
Debt Security of any series, (1) the Holder of any Registered Security to be
exchanged shall surrender such Debt
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Security (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder of any Registered Security o his attorney
duly authorized in writing) to the Capital Exchange Agent on the Capital
Exchange Date, and (2) the Holder of any Bearer Security to be exchanged shall
surrender such Debt Security and all unmatured coupons and all matured coupons
in default with the Capital Security Election Form at a Place of Capital
Exchange outside the United States designated pursuant to Section 1404(a)(8)
except as otherwise provided in Section 1002. If the Holder of a Bearer Security
is unable to produce any such Debt Security or coupons, the surrender of such
Debt Security or coupons may be waived by the Company and the Trustee, if there
be furnished to them such security or indemnity as they may require to save each
of them and any Capital Exchange Agent harmless in respect of such Debt Security
or coupons. Except as provided in Section 307, no payment or adjustment shall be
made upon any exchange on account of any interest accrued on any Debt Securities
surrendered for exchange or on account of any dividends or interest on the
Capital Securities issued upon exchange.
(f) Debt Securities of any series to be exchanged shall be deemed to have
been exchanged on the Capital Exchange Date therefor in accordance with the
foregoing provisions, and at such time the rights of the Holders of such Debt
Securities as Holders shall cease (subject to the provisions of Section 307 and
without prejudice to the rights of Holders of Debt Securities of such series
pursuant to Section 1413), and the Person or Persons entitled to receive the
Capital Securities issuable upon such exchange shall be treated for all purposes
as the record holder or holders of such Capital Securities at such time.
SECTION 1406. Election to Exchange.
The election of the Company to exchange Capital Securities for Debt
Securities pursuant to Section 1403 shall be evidenced by a Board Resolution.
SECTION 1407. Deposit of Capital Exchange Price.
On any Capital Exchange Date for Debt Securities of any series which may be
exchanged, the Company shall deposit with the Trustee or with a Capital Exchange
Agent in the Borough of Manhattan, The City of New York (or, if the Company is
acting as Capital Exchange Agent, segregate and hold in trust as provided in
Section 1003) Capital Securities and an amount of money which together are
sufficient to pay the Capital Exchange Price of, and (except if such Capital
Exchange Date shall be an Interest Payment Date) accrued interest on, all the
Debt Securities of such series or portions thereof which are to be exchanged on
that date; provided, however, that deposits with respect to Bearer Securities
shall be made with a Capital Exchange Agent or Capital Exchange Agents located
outside the United States except as otherwise provided in Section 1002, unless
otherwise specified as contemplated by Section 301.
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SECTION 1408. Debt Securities Due on Capital Exchange Date; Debt Securities
Exchanged in Part.
Notice of exchange having been given as aforesaid, the Debt Securities of
any series so to be exchanged shall, on the Capital Exchange Date for such Debt
Securities, become due and payable at the Capital Exchange Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Capital Exchange Price and accrued interest) Debt Securities of
such series to be exchanged shall cease to bear interest and the coupons for
such interest appertaining t any Bearer Securities to be exchanged, except to
the extent provided below, shall be void. Upon surrender of any Debt Security of
such series for exchange in accordance with said notice, such Debt Security
shall be paid by the Company at the Capital Exchange Price, together with
accrued interest to the Capital Exchange Date; provided, however, that if such
Capital Exchange Date is an Interest Payment Date, the interest payable on such
date shall be paid to the Holder of Debt Securities of such series according to
the terms of the Debt Securities of such series and the provisions of Section
307; and provided further, that exchanges of Bearer Securities shall be made
only and installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Capital Exchange Date shall be payable only at an office or
agency located outside the United States except as otherwise provided in Section
1002 and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Capital Exchange Price an amount equal to
the face amount of all missing coupons, or the surrender of such missing coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Capital
Exchange Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or Capital Exchange Agent any such missing coupon in
respect of which a deduction shall have been made from the Capital Exchange
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest on Bearer Securities shall be
payable only at an office or agency located outside of the United States except
as otherwise provided in Section 1002.
If any Debt Security of any series called for exchange shall not be so paid
or exchanged upon surrender thereof for exchange, the principal shall, until
paid, bear interest from such Capital Exchange Date at the rate or rates
prescribed therefor in such Debt Security; provided, however, that in the case
of Bearer Securities, any such principal and interest thereon shall be paid at
an office or agency located outside the United States except as otherwise
provided in Section 1002.
Any Registered Security which is to be exchanged only in part shall be
surrendered as provided herein (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing) and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder
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of such Debt Security without service charge a new Registered Security or
Securities of the same series, of any authorized denomination or denominations
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unexchanged portion of principal of the Debt Security so
surrendered.
Any Bearer Security which is to be exchanged only in part shall be
surrendered as provided herein and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities or new Bearer
Security or Securities (and all appurtenant unmatured coupons and coupons in
default) or any combination thereof of the same series, of any surrendered
denomination or denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unexchanged portion of principal of the
Debt Security so surrendered; provided, however, the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities in exchange for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such exchanges
thereafter unless and until the Company delivers to the Trustee a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 1409. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be substantially as
follows with such additions, deletions or changes thereto as may be approved by
the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses
of Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security] ("Debt
Securities") of Wells Fargo & Company hereby elects to receive on the Capital
Exchange Date determined pursuant to the Indenture dated as of __________, ____
("Indenture"), between Wells Fargo & Company and ____________________________,
as Trustee, and referred to in the notice of exchange published or delivered to
the undersigned with this Capital Security Election Form, Capital Securities of
Wells Fargo & Company with a Market Value equal to the principal amount of the
Debt Securities being exchanged owned by the undersigned Holder and, in the case
of Bearer Securities, delivered herewith together with all coupons appertaining
thereto. Unless this Capital Security Election Form together with, in the case
of Bearer Securities, such Bearer Securities and coupons, is received by any
Capital Exchange Agent named above at an address shown above on or prior to
______________________________, the Holder will be deemed to have elected to
participate
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in the sale of the Holder's Capital Securities in the Secondary Offering and
will receive cash on the Capital Exchange Date in an amount equal to the
principal amount of all Debt Securities being exchanged owned by the Holder. All
terms used herein and not otherwise defined herein shall have the meanings
specified in the Indenture.
Dated ______________________
______________________________________
Name of Holder
SECTION 1410. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon exchange for any Debt
Securities. If more than one Debt Security of any series shall be surrendered
for exchange at one time by the same Holder, the amount of all Capital
Securities which shall be issuable upon exchange thereof shall be computed on
the basis of the aggregate principal amount of Debt Securities of such series so
surrendered. In lieu of issuing any fractional Capital Security, the Company
shall pay a cash adjustment i respect of such fraction in an amount equal to the
same fraction of the Market Value of the Capital Security.
SECTION 1411. Company to Obtain Governmental and Regulatory Approvals.
The Company covenants that if any Capital Securities required to be
exchanged for Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law, or any national
securities exchange, before such Capital Securities may be issued, the Company
will in good faith and as expeditiously as possible endeavor to cause such
Capital Securities to be duly registered or approved, as the case may be;
provided, however, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
SECTION 1412. Taxes on Exchange.
The Company will pay any and all transfer, stamp or similar taxes that may
be payable in respect of the issue or delivery of Capital Securities in exchange
for Debt Securities pursuant hereto.
SECTION 1413. Covenants as to Capital Securities and Secondary Offering.
(a) The Company covenants that it will issue, or cause to be issued,
Capital Securities of the type, in the amounts and at the times required by this
Indenture.
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(b) The Company covenants that all Capital Securities which may be issued
in exchange for Debt Securities will upon issuance be duly and validly issued
and, if applicable, fully paid and nonassessable.
(c) The Company unconditionally undertakes to sell Capital Securities in
each Secondary Offering (and to bear all expenses of each Secondary Offering,
including underwriting discounts and commissions) at the times and in the manner
required by this Indenture unless all Holders have duly elected to receive
Capital Securities on the related Capital Exchange Date.
(d) The Company agrees to indemnify and hold harmless in connection with
any Secondary Offering any Holder for the account of whom Capital Securities are
being offered and sold from and against any and all losses, claims, damages and
liabilities resulting from or based upon any untrue statement or alleged untrue
statement of any material fact contained in any notice of exchange, any offering
memorandum or selling document or registration statement relating to the
Secondary Offering, any preliminary prospectus or prospectus contained therein,
or any amendment thereof or supplement thereto, or resulting from or based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
resulting from the Company's failure to comply with Section 1411; provided,
however, the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement, alleged untrue statement, omission or alleged omission made
therein (i) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for use
in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Company in writing that any of the assumptions described
in Section 1404(a)(7)(A) is incorrect. In connection with any Secondary
Offering, the Company agrees to obtain appropriate indemnification of any Holder
for the account of whom Capital Securities are being offered and sold in any
Secondary Offering from any underwriter, agent or other similar person.
SECTION 1414. Provision in Case of Consolidation, Merger or Transfer of
Assets.
In case of any consolidation of the Company with, or merger of the Company
into, any other corporation (other than a consolidation or merger in which the
Company is the continuing corporation), or in case of any conveyance or transfer
of the properties and assets of the Company substantially as an entirety, the
corporation formed by such consideration or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets of the Company, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Debt Security
then Outstanding shall have the right thereafter to receive securities of such
successor on the Capital Exchange Date for such Debt Security with a Market
Value equal to the principal amount of such Debt Security. The above provisions
of this Section shall similarly apply to successive consolidations, mergers,
conveyances or transfers.
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SECTION 1415. Responsibility of Trustee.
The Trustee shall not at any time be under any duty or responsibility to
any Holder of Debt Securities of any series to be exchanged to determine the
Market Value of any Capital Securities delivered in exchange for Debt Securities
of such series and may rely on and shall be entitled to receive prior to any
Capital Exchange Date for Debt Securities of such series an Officers'
Certificate of the Company as to the Market Value of the Capital Securities
being exchanged for the Debt Securitie of such series and the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series or the minimum denomination of such series, if larger, and that
such Capital Securities qualify as Capital Securities under the definition
thereof contained herein. The Trustee shall not be accountable with respect to
the validity or value (or the kind or amount) of any Capital Securities which
may at any time be issued or delivered in exchange for any Debt Security; and
the Trustee does not make any representation with respect thereto. The Trustee
shall not be responsible for any failure of the Company to issue, transfer or
deliver any Capital Securities or Capital Security certificates or other
securities or property upon the surrender of any Debt Security for the purpose
of exchange or to comply with any of the covenants of the Company contained in
this Article.
SECTION 1416. Revocation of Obligation to Exchange Capital Securities for
Debt Securities.
The Company's obligations to exchange Capital Securities for Debt
Securities of any series as provided in Section 1402 is absolute and
unconditional; provided, however, that such obligation may be revoked at the
option of the Company at any time on not less than 60 days' prior notice given
in the manner provided in Section 106 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the Company shall
determine that under regulations then in effect of the Company's Primary Federal
Regulator either the Debt Securities are no longer includable as capital or it
is no longer necessary for the Company to be obligated to exchange Capital
Securities for Debt Securities in order for the Debt Securities to maintain the
same capital treatment as they are then receiving under the regulations or if
approval of the Primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series in cash at 100%
of the principal amount thereof on the Stated Maturity thereof, and
(b) the Company may, at any time on or after a date selected by the
Company, on not less than 60 days' prior notice given in the manner provided in
Section 106 to the Holders of Debt Securities of such series and the Trustee,
redeem the Debt Securities of such series, in whole or in part, for cash at 100%
of the principal amount thereof, plus accrued interest to the Redemption Date.
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SECTION 1417. Optional Securities Funds.
(a) (1) With respect to Debt Securities of any series for which an
Officers' Certificate or supplemental indenture pursuant to Section 301
provides that the Debt Securities of such series are exchangeable for
Capital Securities, the Company may elect to establish a fund (referred to
herein as the "Optional Securities Funds") to which funds may at any time
be designated by the Company as provided in Section 1502 as if such
Optional Securities Funds were Securities Funds (as defined in Article
Fifteen) to be used to pay the principal of the Debt Securities of such
series.
(2) Notwithstanding any provisions to the contrary contained in this
Indenture or in the Debt Securities of any series, neither funds designated
as Optional Securities Funds nor any other property from time to time held
as Optional Securities Funds shall be deemed to be for any purpose property
of the Holders or trust funds for the benefit of the Holders, and the
Optional Securities Funds shall not constitute security for the payment of
the Debt Securities.
(b) In lieu of, or in addition to, any exchange of Capital Securities for
Debt Securities of any series which may be made in accordance with the
provisions of Sections 1402 and 1403, the Company may elect to redeem the Debt
Securities of such series in accordance with the provisions of Section 1106 and
the terms of the Debt Securities of each series, in whole or in part, by paying
the principal of such Debt Securities with funds designated as Optional
Securities Funds at a price equal to the percentage of the principal amount
established in the terms of the Debt Securities of such series on the Redemption
Date of the Debt Securities to be so redeemed, and (except if such Redemption
Date shall be an Interest Payment Date) by paying accrued interest on such Debt
Securities. If such Redemption Date is an Interest Payment Date, the interest
payable on such date shall be paid to the Holder of Debt Securities of such
series according to the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed redemption in the manner
provided in Section 106 to the Holders of the Debt Securities of such series
within the time prescribed for the giving of the initial notice in Section 1402
or 1403, depending upon the Redemption Date selected by the Company. Such notice
shall state the Redemption Date and the place or places where the Debt
Securities of the series to be paid are to be surrendered for payment; provided,
however, if such redemption is of less than all of the Debt Securities of such
series and is to be made on a Capital Exchange Date specified in accordance with
Section 1402 or 1403, then such notice may be incorporated into any initial
notice of such Capital Exchange Date and provided that no notice of any
redemption may be given unless there are sufficient Optional Securities Funds to
pay the principal amount of the Debt Securities to be redeemed.
(d) If less than all the Debt Securities of any series are to be so
redeemed, then Sections 1404(c) and 1408 shall apply to the redemption in the
same manner as if such Debt Securities were to be exchanged for Capital
Securities.
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(e) Funds designated as Optional Securities Funds shall be released from
such designation under the circumstances described in Section 1503.
ARTICLE FIFTEEN
SECURITIES FUNDS
SECTION 1501. Creation of Securities Funds.
A fund (the "Securities Funds") will be established when specified in an
Officers' Certificate or supplemental indenture pursuant to Section 301 for the
Debt Securities of any series pursuant to which funds may be designated by the
Company as provided in Section 1502, to be used to pay the principal of the Debt
Securities of that series.
Notwithstanding any provision to the contrary contained in this Indenture
or in the Debt Securities of any series, neither funds designated as Securities
Funds nor any other property from time to time held as Securities Funds shall be
deemed to be for any purpose property of the Holders or trust funds for the
benefit of the Holders, and the Securities Funds shall not constitute security
for the payment of the Debt Securities.
SECTION 1502. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to (i) the net proceeds
of the sale of Capital Securities for cash from time to time after the date of
initial issuance of the Debt Securities of any series for which funds may be
designated by the Company as provided in this Section, and (ii) the market
value, as determined by the Company, of Capital Securities sold from time to
time after the date of initial issuance of the Debt Securities of such series in
exchange for other property, less the expenses to effect any such exchanges, and
(iii) other funds which the regulations of the Primary Federal Regulator then
permit for the payment of principal of "mandatory convertible securities (equity
commitment notes)" as defined in such regulations; provided that (x) the Company
has designated such amounts as Securities Funds on its books and records in the
manner required by the Primary Federal Regulator, and (y) there shall be
deducted from the Securities Funds an amount equal to the amount of any funds
used to redeem or repay the Debt Securities of such series for which Securities
Funds are required to be designated or any similar securities.
SECTION 1503. Covenant of the Company to Obtain Securities Funds.
Notwithstanding anything else contained herein, the Company hereby
covenants and agrees that with regard to the Debt Securities of any series which
by its terms requires the designation of Securities Funds (i) by the Interest
Payment Date which occurs on or next preceding the date when one-third of the
period from the date of issuance of the Debt Securities of such series to their
Stated Maturity has elapsed, it will have obtained Securities Funds in an
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amount that will equal at least one-third of the original aggregate principal
amount of the Debt Securities of such series (or such lesser amount as the
Primary Federal Regulator may permit from time to time) and will have prepared
and delivered to the Trustee an Officers' Certificate to the foregoing effect,
(ii) by the Interest Payment Date which occurs on or next preceding the date
when two-thirds of the period from the date of issuance of the Debt Securities
of such series to their Stated Maturity has elapsed, it will have obtained
Securities Funds in an amount that will equal at least two-thirds of the
original aggregate principal amount of the Debt Securities of such series (or
such lesser amount as the Primary Federal Regulator may permit from time to
time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect, and (iii) by 60 days prior to the Stated
Maturity of the Debt Securities of such series, it will have obtained Securities
Funds in an amount that will equal not less than the original aggregate
principal amount of the Debt Securities of such series (or such lesser amount as
the Primary Federal Regulator may permit from time to time) and will have
prepared and delivered to the Trustee an Officers' Certificate to the foregoing
effect; provided, however, that such covenant and agreement of the Company shall
be cancelled and amounts theretofore designated as Securities Funds will be
released from such designation in the event and to the extent that the Company
shall determine that under the regulations of the Company's Primary Federal
Regulator either the Debt Securities are no longer includable as capital or it
is no longer necessary for the Company to be obligated to pay the principal of
the Debt Securities out of Securities Funds in order for the Debt Securities to
maintain the same capital treatment as they are then receiving under such
regulations, in the event and to the extent that approval of the Primary Federal
Regulator is obtained for such cancellation and release or in the event and to
the extent that the Company shall have exchanged or redeemed such Debt
Securities pursuant to the terms of such Debt Securities of such series from a
source other than amounts designated as Securities Funds.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Debt Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of Debt
Securities of such series.
SECTION 1602. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1601, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities
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of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Debt Securities of such series for any purpose specified in Section 1601, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice o such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Debt Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1604. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less tha 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1602(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
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Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
majority in principal amount of the Outstanding Debt Securities of that series,
provided however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of
Debt Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 1602(b), in
which case the Company or the Holders of Debt Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of th Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Debt Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any
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other composite currency or a Foreign Currency) of Debt Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Debt Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1602 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Debt
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast a the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more person having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1601. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
DEFEASANCE
SECTION 1701. Termination of Company's Obligations.
If this Section 1701 is specified, as contemplated by Section 301, to be
applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with
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any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay the principal of (and premium, if any) and any installment
of principal of (and premium, if any) or interest when due on the Debt
Securities of such series and any coupons appertaining thereto and any mandatory
sinking fund, repayment or analogous payments thereon on the scheduled due dates
therefor at the Stated Maturity thereof, the Company's obligation under any
covenant determined pursuant to Section 301 to be subject to this Section shall
terminate with respect to the Debt Securities of the series for which such
deposit was made; provided, however, that (i) no Event of Default with respect
to the Debt Securities of such series under Section 501(1) or Section 501(2) or
event that with notice or lapse of time or both would constitute such an Event
of Default shall have occurred and be continuing on such date, (ii) such deposit
will not result in a breac of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by which it
is bound, and (iii) such termination shall not relieve the Company of its
obligations under the Debt Securities of such series and this Indenture to pay
when due the principal of (and premium, if any) and interest and additional
amounts on such Debt Securities and any coupons appertaining thereto if such
Debt Securities or coupons are not paid (or payment is not provided for) when
due from the money and Eligible Instruments (and the proceeds thereof) so
deposited.
It shall be a condition to the deposit of cash and/or Eligible Instruments
and the termination of the Company's obligations pursuant to the provisions of
this Section with respect to the Debt Securities of any series under any
covenant determined pursuant to Section 301 to be subject to this Section that
the Company deliver to the Trustee (i) an Opinion of Counsel to the effect that:
(a) Holders of Debt Securities of such series and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and termination and (b) such Holders (and future
Holders) will be subject to tax in the same amount, manner and timing as if such
deposit and termination had not occurred, (ii) an Officers' Certificate to the
effect that under the laws in effect on the date such money and/or Eligible
Instruments are deposited with the Trustee, the amount thereof will be
sufficient, after payment of all Federal, state and local taxes in respec
thereof payable by the Trustee, to pay principal (and premium, if any) and
interest when due on the Debt Securities of such series and any coupons
appertaining thereto; and (iii) an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section under any covenant determined pursuant to Section 301
to be subject to this Section, with respect to the Debt Securities of any series
then listed on the New York Stock Exchange, that the Company deliver an Opinion
of Counsel that the Debt Securities of such series will not be delisted from the
New York Stock Exchange as a result of such deposit and termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under any covenant determined pursuant to Section 301 to be
subject to this Section.
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SECTION 1702. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Eligible Instruments not required for the payment
of the principal of (and premium, if any) and interest on the Debt Securities of
any series and any related coupons for which money or Eligible Instruments have
been deposited pursuant to Section 1701 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1701. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1703. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
ARTICLE EIGHTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1801. Debt Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything in this Indenture or the
Debt Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Debt Securities of each series and any coupons appurtenant
thereto is subordinate and junior in right of payment to all Senior Debt to the
extent provided herein, and each Holder of Debt Securities of each series and
coupons appurtenant thereto, by such Holder's acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Debt shall continue to be Senior Debt and entitled
to the benefits of these subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Debt or extension or renewal of
the Senior Debt.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
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(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Debt Securities and coupons appurtenant thereto, together
with the holders of any obligations of the Company ranking on a parity with the
Debt Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Debt Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Debt Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the tim outstanding and to any securities issued
in respect thereof under any such plan or reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or
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security, each holder of Senior Debt is hereby irrevocably authorized to endorse
or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in the
right to enforce subordination of the indebtedness evidenced by the Debt
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Debt Securities and
coupons appurtenant thereto or prevent the Trustee or the Holder from exercising
all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding. Upon the payment in full of all
Senior Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Debt Securities of such
series and coupons appertaining thereto, if any, shall have been paid in full,
and such payments or distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Debt shall, as between the Company and
its creditors other than the holders of Senior Debt, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by th Company on account
of Senior Debt, and not on account of the Debt Securities of such series.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of this Section 1801 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
SECTION 1802. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company referred to in
this Article Eighteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of
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the trustee in bankruptcy, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Eighteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In the
event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payments or distributions pursuant to this Article Eighteen,
the Trustee may request such person to furnis evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person
under this Article Eighteen, and if such evidence is not furnished, the Trustee
may offer any payment to such Person pending judicial determination as to the
right of such Person to receive payment. The Trustee, however, shall not be
deemed t owe any fiduciary duty to the holders of Senior Debt.
SECTION 1803. Payment Permitted If No Default.
Nothing contained in this Article Eighteen or elsewhere in this Indenture,
or in any of the Debt Securities, shall prevent (a) the Company at any time,
except during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in Section 1801, from making payments of
the principal of (or premium, if any) or interest on the Debt Securities or (b)
the application by the Trustee or any Paying Agent of any moneys deposited with
it hereunder to payments o the principal of or interest on the Debt Securities,
if, at the time of such deposit, the Trustee or such Paying Agent, as the case
may be, did not have the written notice provided for in Section 1804 of any
event prohibiting the making of such deposit, or if, at the time of such deposit
(whether or not in trust) by the Company with the Trustee or any Paying Agent
(other than the Company) such payment would not have been prohibited by the
provisions of this Article, and the Trustee or any Paying Agent shall not be
affected by any notice to the contrary received by it on or after such date.
SECTION 1804. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Eighteen or elsewhere in this Indenture contained
to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 1801 has
happened, until the Trustee shall have received an Officers' Certificate to that
effect or notice i writing to that effect signed by or on behalf of the holder
or holders, or their representatives, of Senior Debt who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or
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holders or representatives or from any trustee under any indenture pursuant to
which such Senior Debt shall be outstanding. The Company shall give prompt
written notice to the Trustee and to the Paying Agent of any facts which would
prohibit the payment of money to or by the Trustee or any Paying Agent.
SECTION 1805. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such Holder's acceptance
thereof authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1806. Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Debt which may at the time be held by it, to the same
extent as any other holder of Senior Debt; provided that nothing in this Article
shall deprive the Trustee of any rights as such holder and provided further that
nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
SECTION 1807. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 1804 and 1806 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1808. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with. The holders of Senior Debt may, at any time or from time
to time and in their absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or alter, any such
Senior Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Debt including, without limitation, the waiver of default
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thereunder, all without notice to or assent from the Holders of the Debt
Securities or the Trustee and without affecting the obligations of the Company,
the Trustee or the Holders of the Debt Securities under this Article.
ARTICLE NINETEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1901. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
SECTION 1902. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof (or if such
Convertible Security is called for redemption or submitted for repayment, then
in respect of such Convertible Security to and including but not after the close
of business on the Redemption o Repayment Date, as the case may be, unless the
Company shall default in the payment due) to convert the principal amount of any
such Convertible Security, or, in the case of any Convertible Security of a
denomination greater than $1,000, any portion of such principal which is $1,000
or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Convertible Security or portion
thereof surrendered for conversion by the Conversion Price, by surrender of the
Convertible Security so to be converted in whole or in part in the manner
provided in Section 1903. Such conversion shall be effected by the Company.
SECTION 1903. Exercise of Conversion Privilege; Delivery of Common Stock on
Conversion; No Adjustment for Interest or Dividends.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company pursuant
to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion, in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 1908. Each Convertible Security
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surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or such Holder's duly
authorized attorney.
As promptly as practicable after the surrender of such Convertible Security
and the receipt of such notice and funds, if any, as aforesaid, the Company
shall deliver at such office or agency to such Holder, or on such Holder's
written order, a certificate or certificates for the number of full shares
deliverable upon the conversion of such Convertible Security or portion thereof
in accordance with the provisions of this Article and a check or cash in respect
of any fractional interest in respect of a share of Common Stock arising upon
such conversion as provided in Section 1904. In case any Convertible Security of
a denomination greater than $1,000 shall be surrendered for partial conversion
and subject to Section 302, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations i an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on which
such Convertible Security shall have been surrendered (accompanied by the funds,
if any, required by the last paragraph of this Section) and such notice shall
have been received by the Company, as aforesaid, and the person in whose name
any certificate or certificates for shares of Common Stock shall be registrable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
registered as the record holder thereof for all purposes on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Convertible Security
shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment on a date in such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Company, of an amoun equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Convertible Securities.
An amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Convertible Security on such Regular Record
Date, provided, however, that if the Company shall default in the payment of
interest on such Interest Payment Date, such amount shall be paid to the person
who made such required payment. Except as provided above in this Section, no
adjustment shall be made for interest accrued on any Convertible Security
converted or for dividends on any shares issued upon the conversion of such
Convertible Security as provided in this Article.
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SECTION 1904. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1905. Conversion Price.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
SECTION 1906. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding Common Stock into a greater number
of securities (including Common Stock), or (iii) combine or reclassify its
outstanding Common Stock into a smaller number of securities (including
Common Stock), the Conversion Price in effect immediately prior thereto
shall be adjusted so that the Holder of any Convertible Security thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned
or have been entitled to receive after the happening of any of the events
described above had such Convertible Security been converted immediately
prior to the happening of such event. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of a subdivision or combination. If, as a result
of an adjustment made pursuant to this subsection (a), the Holder of any
Convertible Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors of the Company (whose determination shall
be conclusiv and shall be described in a written statement filed with the
Trustee and any conversion agent) shall determine the allocation of the
adjusted Conversion Price between or among shares of such classes of
capital stock.
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In the event that at any time, as a result of an adjustment made
pursuant to this subsection (a) of this Section 1906, the Holder of any
Convertible Security thereafter converted shall become entitled to receive
any shares or other securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so received upon
conversion of any Convertible Security shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Common Stock contained in
this Section 1906, and other provisions of this Article Nineteen with
respect to the shares of Common Stock shall apply on like terms to any such
other shares or other securities.
(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring within
45 days after such record date) to subscribe for or purchase Common Stock
at a price per share (or a conversion price per share) less than the
current market price per share of Common Stock (as defined in subsection
(d) below) at such record date, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to such record date by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
shares so offered (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at such current market
price, and of which the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares
of Common Stock offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible). Such
adjustment shall be made successively whenever such a record date is fixed,
and shall become effective immediately after such record date. In
determining whether any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such current market
price, and in determining the aggregate offering price of such shares,
there shall be taken into account any consideration received by the Company
for such rights or warrants, the value of such consideration, if other than
cash, to be determined by the Board of Directors of the Company. Common
Stock owned by or held for the account of the Company or any majority owned
subsidiary shal not be deemed outstanding for the purpose of any adjustment
required under this subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its
indebtedness or assets (excluding regular quarterly or other periodic or
recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings of the Company or dividends or
distributions referred to in subsection (a) above) or rights or warrants to
subscribe or purchase (excluding those referred to in subsection ( above),
then in each such case the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to such record date by a fraction of which the
numerator shall be the current market price per share (as defined in
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subsection (d) below) of the Common Stock on such record date less the then
fair market value (as determined by the Board of Directors of the Company
whose determination shall be conclusive, and described in a certificate
filed with the Trustee) of the portion of the assets or evidences of
indebtedness so distributed or of such rights or warrants applicable to one
share of Common Stock, and the denominator shall be the current market
price per share (as defined in subsection (d) below) of the Common Stock.
Such adjustment shall be made successively whenever such a record date is
fixed and shall become effective immediately after such record date.
Notwithstanding the foregoing, in the event that the Company shall
distribute any rights or warrants to acquire capital stock ("Rights")
pursuant to this subsection (c), the distribution of separate certificates
representing such Rights subsequent to their initial distribution (whether
or not such distribution shall have occurred prior to the date of the
issuance of such Convertible Securities) shall be deemed to be the
distribution of such Rights for purposes of this subsection (c); provided
that the Company may, in lieu of making any adjustment pursuant to this
subsection (c) upon a distribution of separate certificates representing
such Rights, make proper provision so that each Holder of such Convertible
Security who converts such Convertible Security (or any portion thereof)
(i) before the record date for such distribution of separate certificates
shall be entitled to receive upon such conversion shares of Common Stock
issued with Rights and (ii) after such record date and prior to the
expiration, redemption or termination of such Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock
issuable upon such conversion, the same number of such Rights as would a
holder of the number of shares of Common Stock that such Convertible
Security so converted would have entitled the holder thereof to purchase in
accordance with the terms and provisions of and applicable to the Rights if
such Convertible Security were converted immediately prior to the record
date for such distribution. Common Stock owned by or held for the account
of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this
subsection (c).
(d) For the purpose of any computation under subsection (b) and (c)
above, the current market price per share of Common Stock at any date shall
be deemed to be the average of the daily Closing Prices for the thirty
consecutive days (which are not legal holidays as defined in Section 113)
commencing forty-five days (which are not legal holidays as defined in
Section 113) before the day in question. The Closing Price for any day
shall be (i) if the Common Stock is listed or admitted for trading on any
national securities exchange, the last sale price (regular way), or the
average of the closing bid and ask prices if no sale occurred, of Common
Stock on the principal securities exchange on which the Common Stock is
listed, or, if not listed or admitted to trading on any national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ"), (ii) if
not listed or quoted as described in (i), the mean between the closing high
bid and low asked quotations of Common Stock reported by NASDAQ, or any
similar system or automated dissemination of quotations of securities
prices then in common use, if so quoted, or (iii) if not quoted as
described in clause (ii), the mean
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between the high bid and low asked quotations for Common Stock as reported
by the National Quotation Bureau Incorporated if at least two securities
dealers have inserted both bid and asked quotations for Common Stock o at
least 5 of the 10 preceding days. If none of the conditions set forth above
is met, the Closing Price of Common Stock on any day or the average of such
Closing Prices for any period shall be the fair market value of Common
Stock as determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company.
(e)(i) Nothing contained herein shall be construed to require an
adjustment in the Conversion Price as a result of the issuance of Common
Stock pursuant to, or the granting or exercise of any rights under, the
Wells Fargo & Company Dividend Reinvestment and Optional Cash Payment Plan.
(ii) In addition, no adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by
reason of this subsection (e)(ii) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment,
further provided, however, that any adjustments which by reason of this
subsection (e)(ii) are not otherwise required to be made shall be made no
later than 3 years after the date on which occurs an event that requires an
adjustment to be made or carried forward.
(iii) All calculations under this Article Nineteen shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case
may be. Anything in this Section 1906 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Conversion Price,
in addition to those required by this Section 1906, as it in its discretion
shall determine to be advisable in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock or
securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Company to its shareholders shall not be
taxable.
(f) Whenever the Conversion Price is adjusted, as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date
on which such adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the Holder of each Convertible
Security at such Holder's last address appearing on the Security Register
provided for in Section 305 of this Indenture.
(g) In any case in which this Section 1906 provides that an adjustment
shall become effective immediately after a record date for an event, the
Company may defer until the occurrence of such event (i) delivering to the
Holder of any Convertible Security converted after such record date and
before the occurrence of such event the
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additional shares of Common Stock deliverable upon such conversion by
reason of the adjustment required by such event over and above the Common
Stock deliverable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 1904, provided, however, that the Company
shall deliver to such Holder a due bill or other appropriate instrument
evidencing such Holder's rights to receive such additional shares, and such
cash, upon the occurrence of the event requiring such adjustment. If such
event does not occur, no adjustments shall be made pursuant to this Section
1906.
SECTION 1907. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or
change of outstanding shares of Common Stock deliverable upon conversion of the
Convertible Securities (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination, but including any change in the shares of Common Stock into two
or more classes or series of securities), (ii) any consolidation or merger to
which the Company is party (other than a consolidation or merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of its Common Stock) or (iii)
any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the Company, or
such successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act as in force at the date of execution of such supplemental indenture and
comply with the provisions of Article Nine) providing that each Convertible
Security shall be convertible into the kind and amount of shares of stock and
other securities or property, including cash, receivable upon such
reclassification, change, consolidation merger, sale or conveyance by a holder
of a number of shares of Common Stock deliverable upon conversion of such
Convertible Securities immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each holder of Convertible Securities, at his address appearing on the Security
Register provided for in Section 305 of this Indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, consolidations, mergers and sales.
SECTION 1908. Taxes on Shares Issued.
The delivery of stock certificates on conversions of Convertible Securities
shall be made without charge to the Holder converting a Convertible Security for
any tax in respect of the issue thereof. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the delivery of stock registered in any name
106
<PAGE>
other than of the Holder of any Convertible Security converted, and the Company
shall not be required to deliver any such stock certificate unless and until the
person or persons requesting the delivery thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 1909. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided for
the purpose of conversion of Convertible Securities hereunder require
registration with or approval of any governmental authority under any Federal or
state law before such shares may be validly delivered upon conversion, the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by the rules of
the New York Stock Exchange, list and keep listed for so long as the Common
Stock shall be so listed on such exchange, upon official notice of issuance, all
Common Stock deliverable upon conversion of the Convertible Securities.
SECTION 1910. Responsibility of Trustee.
Neither Trustee nor any authenticating agent nor any conversion agent shall
at any time be under any duty or responsibility to any Holder of Convertible
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any authenticating agent nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time
be delivered upon the conversion of any Convertible Security, and neither the
Trustee nor any authenticating agent nor any conversion agent makes any
representation with respect thereto. Subject to the provisions of Section 601,
neither the Trustee nor any authenticating agent nor any conversion agent shall
be responsible for any failure of the Company to deliver any shares of Common
Stock or stock certificates or other securities or property or cash upon the
surrender of any Convertible Security for the purpose of conversion or for any
failure of the Company to comply with any of the covenants of the Company
contained in this Article.
107
<PAGE>
SECTION 1911. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on the Common Stock (other than in cash out of its current or retained
earnings); or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock (other than
a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to
par value) or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Corporation is
required or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and the Company shall cause
to be mailed to each holder of Convertible Securities at his address appearing
on the Security Register, provided for in Section 305 of this Indenture, as
promptly as possible but in any event no less than fifteen days prior to the
applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to b taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up or
any adjustment in the Conversion Price required by this Article Nineteen.
SECTION 1912. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued Common Stock,
such number of shares of Common Stock as shall then be deliverable upon the
conversion of all outstanding Convertible Securities.
108
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WELLS FARGO & COMPANY
By
--------------------------------
Its
------------------------------
[CORPORATE SEAL]
Attest:
Secretary
By
--------------------------------
Its
------------------------------
[CORPORATE SEAL]
Attest:
109
<PAGE>
STATE OF ________)
)SS.
COUNTY OF _______)
On the ____ day of __________________, ____, before me personally came
_____________________, to me known, who, being duly sworn, did depose and say
that he resides at ____________________________; that he is __________________
of Wells Fargo & Company, a corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that it was so
affixed pursuant to the authority of the Board of Directors of said corporation;
and that he signed his name thereto pursuant to like authority.
Notary Public
110
<PAGE>
COMMONWEALTH OF ______________)
)SS.
COUNTY OF ____________________)
On the ____ day of _______________, ____, before me personally came
___________________________, to me known, who, being duly sworn, did depose and
say that he resides at ________________________________; that he is
_____________________ of ______________________________________, a national
banking association described in and which executed the above instrument; that
he knows the seal of said corporation; that it was so affixed pursuant to the
authority of the Board of Directors of said corporation; and that he signed his
name thereto pursuant to like authority.
Notary Public
111
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of __________, ____ (the
"Indenture") between Wells Fargo & Company and
__________________________________, ____________________, as trustee (the
"Trustee"), covering the above-captioned Debt Securities. This is to certify
that as of the date hereof, ______________ principal amount of Debt Securities
credited to you for our account (i) is owned by persons that are not United
States Persons, as defined below; (ii) is owned by United States Persons that
are (a) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States Persons who
acquired the Debt Securities through foreign branches of United States financial
institutions and who hold the Debt Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution encloses herewith a certificate in the
form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
which United States or foreign financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Debt Securities for purposes of resale directly or
indirectly to a United States Person or to a person within the United States or
its possessions.
[Insert if certificate does not relate to an interest payment--We undertake
to advise you by tested telex followed by written confirmation if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then appear in your
books as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize you
to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to ___________ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered
<PAGE>
and interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated:_________________________
[To be dated on or after
____________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
__________________________________________
(Authorized Signatory)
Name:_____________________________________
Title:____________________________________
______________________________
*Delete if inappropriate
A-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of __________, ____ (the
"Indenture"), between Wells Fargo & Company and
_______________________________________________, ____________________, as
trustee, relating to the offering of the above-captioned Debt Securities (the
"Debt Securities"). Unless herein defined, terms used herein have the same
meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code o 1986 and the regulations
thereunder and is not purchasing for resale directly or indirectly to a United
States Person or to a person within the United States or its possessions. We
undertake to advise you by tested telex followed by written confirmation if the
statement in the immediately preceding sentence is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
Dated: ______________________________
[To be dated on or after _____________
(the date determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
__________________________________________
(Authorized Signatory)
Name:_____________________________________
Title:____________________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, _____, of the Global Security representing the
above-captioned issue [which is herewith submitted to be exchanged for
definitive Debt Securities]* [for which we are seeking to obtain payment of
interest]* (the "Submitted Portion"). This is to certify, pursuant to the
Indenture dated as of __________, ____ (the "Indenture") between Wells Fargo &
Company and ___________________________________, as trustee (the "Trustee"),
that we have received in writing, by teste telex or by electronic transmission
from member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of ____________________ in
_________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:____________________
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as Operator of
the Euroclear System] [CEDEL S.A.]
By:______________________________________
______________________________
*Delete if inappropriate.
<PAGE>
EXHIBIT 4(s)(A)
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
WELLS FARGO & COMPANY
FORM OF
MEDIUM-TERM FIXED RATE NOTE, SERIES __
Due Nine Months or More From Date of Issue
[ ] Check this box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % INTEREST RATE PER ANNUM:
STATED MATURITY DATE: INTEREST PAYMENT DATES: REGULAR RECORD DATES:
OPTIONAL REDEMPTION: INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
INITIAL REDEMPTION DATE: SINKING FUND: OPTION TO ELECT REPAYMENT:
OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS: DEPOSITARY (Only applicable
[ ] $1,000 if this Security is a Global Security):
[ ] Other
</TABLE>
<PAGE>
SPECIFIED CURRENCY:
OTHER/ADDITIONAL TERMS: ADDENDUM ATTACHED:
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _______________________ Dollars ($______________)
on the Stated Maturity Date shown above (except to the extent redeemed or repaid
prior to such date) and to pay interest, if any, on the principal amount hereof
at the Interest Rate shown above (computed on the basis of a 360-day year of
twelve 30-day months), semi-annually on each Interest Payment Date set forth
above from and after the date of this Security and at Maturity until payment of
the principal amount hereof has been made or duly provided for. Unless this
Security is a Security which has been issued upon transfer of, in exchange for,
or in replacement of, a Predecessor Security, interest on this Security shall
accrue from the Original Issue Date indicated above. If this Security has been
issued upon transfer of, in exchange for, or in replacement of, a Predecessor
Security, interest on this Security shall accrue from the last Interest Payment
Date to which interest was paid on such Predecessor Security or, if no interest
was paid on such Predecessor Security, from the Original Issue Date indicated
above. The first payment of interest on a Security originally issued and dated
between a Regular Record Date specified above and an Interest Payment Date will
be due and payable on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such next succeeding Regular
Record Date. Subject to certain exceptions provided in the Indenture referred to
herein below, the interest so payable on any Interest Payment Date will be paid
to the Person in whose name this Security is registered at the close of business
on the Regular Record Date (whether or not a Business Day) next preceding such
Interest Payment Date, and interest payable upon Maturity will be paid to the
person to whom principal is payable.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on, this Security is
payable by the Company in the Specified Currency specified above.
Any interest not punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent
2
<PAGE>
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly
provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in __________________ and ________________. The
Company has initially appointed __________________________________ as the Paying
Agent at its offices at _________________________________________________ and at
_____________________.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security will be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) will be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series, by wire
transfer of immediately available funds to such account as may have been
designated by such Holder. Any such designation for wire transfer purposes shall
be made by filing the appropriate information with the Paying Agent at its
corporate trust office not later than 15 calendar days prior to the applicable
Interest Payment Date and, unless revoked by written notice to the Paying Agent
received by the Paying Agent on or prior to the Regular Record Date immediately
preceding the applicable Interest Payment Date, shall remain in effect with
respect to any further payments with respect to this Security payable to such
Holder. Payment of principal of and interest, if any, on this Security at
Maturity will be made against presentation of this Security at the office or
agency of the Company maintained for that purpose in ________________ or
_________________.
The Company will pay any administrative costs imposed by banks on
payors in making payments on this Security in immediately available funds and
the Holder of this Security will pay any administrative costs imposed by banks
on payees in connection with such payments. Any tax, assessment or governmental
charge imposed upon payments on this Security will be borne by the Holder of
this Security.
Any payment on this Security due on any day which is not a Business Day
need not be made on such day, but may be made on the next succeeding Business
Day with the same force and effect as if made on the due date and no additional
interest shall accrue on the amount so payable for the period from and after
such date. For purposes of this Security, "Business Day" means any day other
than a Saturday, Sunday or a legal holiday or a day on which banking
institutions are authorized or required by law or regulation to close in
_____________ or ____________.
3
<PAGE>
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
WELLS FARGO & COMPANY
By:__________________________________
Its:______________________________
[SEAL]
Attest:______________________________
Its:______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
_____________________________________,
as Trustee
By: __________________________________
Authorized Signature
5
<PAGE>
[Reverse of Note]
WELLS FARGO & COMPANY
MEDIUM-TERM FIXED RATE NOTE, SERIES __
Due Nine Months or More From Date of Issue
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of _______________, as amended or
supplemented from time to time (herein called the "Indenture"), between the
Company and __________________________________, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto, reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series of the
Securities, which series is limited to an aggregate principal amount of
$_____________ or the equivalent thereof in one or more foreign or composite
currencies, designated as Medium-Term Notes, Series __, of the Company. The
Securities of this series may mature at different times, bear interest, if any,
at different rates, be redeemable at different times or not at all, be repayable
at the option of the Holder at different times or not at all, be issued at an
original issue discount and be denominated in different currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
6
<PAGE>
Modification and Waivers; Obligation of the Company Absolute
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together as a class.
The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together as a class, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with those provisions of the Indenture. Certain past defaults under
the Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except that in the event the Company deposits money or Eligible
Instruments as provided in Section 401 or 403 of the Indenture, such payments
will be made only from proceeds of such money or Eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security shall not be less
than the minimum authorized denomination hereof) on or after the date designated
as the Initial Redemption Date on the face hereof at 100% of the unpaid
principal amount hereof or the portion thereof redeemed multiplied by a
percentage (the "Redemption Percentage"), together with accrued interest, if
any, to the Redemption Date. The Redemption Percentage shall initially be equal
to the Initial Redemption Percentage specified on the face hereof and shall
decline at each anniversary of the Initial Redemption Date by the amount of the
Annual Redemption Percentage Reduction
7
<PAGE>
specified on the face hereof, until the Redemption Percentage is equal to 100%.
The Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 days prior to the applicable
Redemption Date to each Holder of the Securities of this series to be redeemed.
In the event of redemption of this Security in part only, the Company shall
issue a new Security or Securities for the unredeemed portion hereof in the name
of the Holder hereof upon the cancellation hereof. If less than all of the
Securities of this series with like tenor and terms are to be redeemed, the
Securities to be redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate.
Sinking Fund
Unless otherwise specified on the face hereof, this Security will not
be entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable
prior to the Stated Maturity Date at the option of the Holder, in whole or in
part and in increments of $1,000 (provided that any remaining principal amount
of this Security surrendered for partial repayment shall not be less than the
minimum authorized denomination hereof), on or after the date designated as an
Optional Repayment Date on the face hereof at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the Repayment Date. In order for this
Security to be repaid, the Company must receive at the applicable address of the
Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Security, at
least 30 but not more than 45 days prior to an Optional Repayment Date, either
(i) this Security, with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby, and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed, not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter (and this
Security and form duly completed are received by the Company by such fifth
Business Day). Any such election shall be irrevocable. The address to which such
deliveries to __________________________________ are to be made is
____________________________ _______________________________ (or, at such other
place as the Company shall notify the Holders of the Securities of this series).
All questions as to the validity, eligibility (including time of receipt) and
acceptance of any Security for repayment will be determined by the Company,
whose determination will be final and binding. Upon any partial repayment, this
Security shall be cancelled and a new Security or Securities for the remaining
principal amount hereof shall be issued in the name of the Holder of this
Security.
8
<PAGE>
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
Registration of Transfer
Upon due presentment for registration of transfer of this Security at
the office or agency of the Company maintained in _____________ or
_________________, a new Security or Securities of this series in authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, as provided in the Indenture and subject to the
limitations provided therein and to the limitations described below, without
charge except for any tax or other governmental charge imposed in connection
therewith.
If this Security is a Global Security (as specified above), this
Security is exchangeable for definitive Securities in registered form only if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a successor Depositary within 90 days
after receiving such notice or after becoming aware that the Depositary has
ceased to be so registered as a clearing agency, (y) the Company in its sole
discretion determines that this Security shall be exchangeable for definitive
Securities in registered form and notifies the Trustee thereof or (z) an Event
of Default with respect to the Securities represented hereby has occurred and is
continuing. If this Security is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, Stated Maturity Date and other terms and of authorized denominations
aggregating a like amount.
If this Security is a Global Security (as specified above), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except as provided
above, owners of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Securities in definitive form and will
not be considered the Holders hereof for any purpose under the Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
9
<PAGE>
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
Defined Terms
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
10
<PAGE>
--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
--------------------
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or the portion thereof specified below), pursuant
to its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_________________________________________________________________________, at
_________________________________________________________________ (please print
or typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the holder elects to have repaid: $__________.
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination or denominations (which shall be $1,000 or
an integral multiple thereof) of the
11
<PAGE>
Security or Securities to be issued to the holder for the portion of the within
Securities not being repaid (in the absence of any specification, one such
Security will be issued for the portion not being repaid): $______________.
Date: _________________ ____________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the
name as written upon page 2 of the within
Security in every particular without
alteration or enlargement or any change
whatsoever.
12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
_______________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
13
<PAGE>
the within Security of WELLS FARGO & COMPANY and all rights thereunder and does
hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_________________________
Signature Guaranteed: _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
14
<PAGE>
EXHIBIT 4(s)(B)
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
WELLS FARGO & COMPANY
FORM OF
MEDIUM-TERM FLOATING RATE NOTE, SERIES __
Due Nine Months or More From Date of Issue
[ ] Check box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % STATED MATURITY DATE:
BASE RATE: INITIAL INTEREST RATE: INTEREST PAYMENT DATES:
REGULAR RECORD DATES: INTEREST DETERMINATION DATES: CALCULATION DATES:
MAXIMUM RATE: MINIMUM RATE: INTEREST RESET PERIOD:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RESET DATES: INITIAL INTEREST RESET DATE: SPREAD MULTIPLIER:
SPREAD: + INDEX MATURITY: DESIGNATED CMT MATURITY
- INDEX AND DESIGNATED
TELERATE PAGE
(Only applicable if the
Base Rate is CMT):
DESIGNATED LIBOR PAGE INDEX CURRENCY CALCULATION AGENT:
(Only applicable if the Base (Only applicable if the
Rate is LIBOR): Base Rate is LIBOR):
[ ] LIBOR Telerate (p. __)
[ ] LIBOR Reuters (p. __)
OPTIONAL REDEMPTION INITIAL REDEMPTION DATE INITIAL REDEMPTION
(at option of Company): (at option of Company): PERCENTAGE:
ANNUAL REDEMPTION SINKING FUND: OPTION TO ELECT REPAYMENT:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS: DEPOSITARY
[ ] $1,000 (Only applicable if this Security
[ ] Other is a Global Security):
SPECIFIED CURRENCY:
OTHER/ADDITIONAL TERMS: ADDENDUM ATTACHED:
</TABLE>
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of
__________________________________Dollars ($_____________) on the Stated
Maturity Date shown above (except to the extent redeemed or repaid prior to such
date) and to pay interest, if any, on the Interest Payment Dates specified
above, commencing with the first Interest Payment Date specified above following
the Original Issue Date specified above, and at Maturity, on the principal
amount hereof at such offices and agencies, at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above following the Original Issue Date specified above and thereafter
at a rate per annum determined in accordance with the provisions on the reverse
hereof under the
2
<PAGE>
heading "Determination of CD Rate", "Determination of Commercial Paper Rate",
"Determination of Federal Funds Rate", "Determination of LIBOR", "Determination
of Prime Rate", "Determination of Treasury Rate" or "Determination of CMT Rate",
depending upon whether the Base Rate is CD Rate, Commercial Paper Rate, Federal
Funds Rate, LIBOR, Prime Rate, Treasury Rate or CMT Rate, as specified above.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on, this Security is
payable by the Company in the Specified Currency specified above.
Any Interest Payment Date specified above that would fall on a day that
is not a Business Day, other than an Interest Payment Date that is also the date
of Maturity, shall be the following day that is a Business Day, except that, if
the Base Rate specified above is LIBOR and such following Business Day is in the
next calendar month, such Interest Payment Date shall be the immediately
preceding day that is a Business Day. If the date of Maturity would fall on a
day that is not a Business Day, the payment of principal and any premium and
interest shall be made on the following Business Day, with the same force and
effect as if made on the due date, and no additional interest shall accrue on
the amount so payable for the period from and after such date of Maturity. For
purposes of this Security, "Business Day" means (a) any day other than a
Saturday, Sunday or a legal holiday or a day on which banking institutions are
authorized or required by law or regulation to close in ________________ or
___________________, and (b) if the Base Rate specified above is LIBOR, any such
day which is also a London Banking Day. For purposes of this Security, ("London
Banking Day" means any day on which dealings in deposits in the Index Currency
specified above are transacted in the London interbank market).
Interest payments on this Security shall be the amount of interest
accrued from and including the Original Issue Date specified above or from and
including the last date to which interest has been paid, or provided for, as the
case may be, to but excluding, the following Interest Payment Date or the date
of Maturity. If this Security has been issued upon transfer of, in exchange for,
or in replacement of, a Predecessor Security, interest on this Security shall
accrue from the last Interest Payment Date to which interest was paid on such
Predecessor Security or, if no interest was paid on such Predecessor Security,
from the Original Issue Date specified above.
Subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, the interest so payable on any Interest Payment Date shall
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date (whether or not a Business Day) next
preceding such Interest Payment Date, and interest payable upon the Maturity
(whether or not such date of Maturity is an Interest Payment Date)
3
<PAGE>
shall be paid to the Person to whom principal is payable; provided, however,
that the first payment of interest on a Security originally issued and dated
between a Regular Record Date specified above and an Interest Payment Date shall
be due and payable on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such next succeeding Regular
Record Date. Unless otherwise specified on the face hereof, "Regular Record
Date" shall mean the fifteenth calendar day (whether or not a Business Day)
immediately preceding the related Interest Payment Date.
Any interest not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly
provided for, the Company shall at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in _____________ and _________________. The
Company has initially appointed ______________________________ as the Paying
Agent at its offices at _________________
_______________________________________ and at _______________________________
_______________________________________.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security shall be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) shall be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series, by wire
transfer of immediately available funds to such account as may have been
designated by such Holder. Any such designation for wire transfer purposes shall
be made by filing the appropriate information with the Paying Agent at its
corporate trust office not later than 15 calendar days prior to the applicable
Interest Payment Date and, unless revoked by written notice to the Paying Agent
received by the Paying Agent on or prior to the Regular Record Date immediately
preceding the applicable Interest Payment Date, shall remain in effect with
respect to any further payments with respect to this Security payable to such
Holder. Payment of principal of and interest, if any, on this Security at
Maturity shall be made against presentation of this Security at the office or
agency of the Company maintained for that purpose in _____________ or
_________________.
4
<PAGE>
The Company shall pay any administrative costs imposed by banks on
payors in making payments on this Security in immediately available funds and
the Holder of this Security will pay any administrative costs imposed by banks
on payees in connection with such payments. Any tax, assessment or governmental
charge imposed upon payments on this Security shall be borne by the Holder of
this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
WELLS FARGO & COMPANY
By:___________________________
Its:___________________________
[SEAL]
Attest:___________________________
Its:___________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
______________________________________,
as Trustee
By:______________________________________
Authorized Signature
6
<PAGE>
[Reverse of Note]
WELLS FARGO & COMPANY
MEDIUM-TERM FLOATING RATE NOTE, SERIES __
Due Nine Months or More From Date of Issue
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of _______________, as amended or
supplemented from time to time (herein called the "Indenture"), between the
Company and __________________________________, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto, reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series of the
Securities, which series is limited to an aggregate principal amount of
$_____________ or the equivalent thereof in one or more foreign or composite
currencies, designated as Medium-Term Notes, Series __, of the Company. The
Securities of this series may mature at different times, bear interest, if any,
at different rates, be redeemable at different times or not at all, be repayable
at the option of the Holder at different times or not at all, be issued at an
original issue discount and be denominated in different currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
Interest Rate Reset
The interest rate in effect from the Original Issue Date to the Initial
Interest Reset Date specified on the face hereof shall be the Initial Interest
Rate specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof following the Original Issue Date specified on
the face hereof, the rate at which interest on this Security is payable shall be
adjusted daily, weekly, monthly, quarterly, semi-annually or annually as
specified on the face hereof under "Interest Reset Period". Each such adjusted
rate shall be applicable from and including the Interest Reset Date to which it
relates to but not including the next succeeding Interest Reset Date or until
Maturity, as the case may be. Subject to applicable provisions of law and except
as specified herein, on each Interest Reset Date, the rate of interest on this
Security shall be the rate determined with respect to the Interest Determination
Date
7
<PAGE>
next preceding such Interest Reset Date in accordance with the provisions of the
applicable heading below and adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, and/or by the multiplication by
the Spread Multiplier, if any, specified on the face hereof.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be the following Business Day,
except that if the Base Rate specified above is LIBOR and if such following
Business Day is in the next calendar month, such Interest Reset Date shall be
the immediately preceding Business Day.
Accrued interest shall be calculated by multiplying the principal
amount by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factor calculated for each day in the period for
which interest is being paid. Unless otherwise specified on the face hereof, the
interest factor for each such day will be computed by dividing the interest rate
(expressed as a decimal) applicable to such day by 360, if the Base Rate is the
CD Rate, the Commercial Paper Rate, the Federal Funds Rate, LIBOR or the Prime
Rate or by the actual number of days in the year, if the Base Rate is the
Treasury Rate or the CMT Rate.
Unless otherwise specified on the face hereof, all percentages
resulting from any calculation referred to herein shall be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of one percentage point rounded upward (e.g., 9.876545% (or.
09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)), and all dollar amounts used in or
resulting from any such calculation on this Security shall be rounded to the
nearest cent (with one-half cent being rounded upwards).
Notwithstanding the foregoing, the interest rate per annum hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date.
The interest rate on this Security shall in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that shall become effective on the next Interest
Reset Date with respect to this Security. The Calculation Agent's determination
of any interest rate shall be final and binding in the absence of manifest
error.
8
<PAGE>
Determination of CD Rate
If the Base Rate specified on the face hereof is CD Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CD Interest Determination Date") shall
equal the rate on such date for negotiable certificates of deposit having the
specified Index Maturity as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates" or
any successor publication of the Board of Governors of the Federal Reserve
System ("H.15(519)") under the heading "CDs (Secondary Market)."
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
o If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall
be the rate on the applicable CD Interest Determination Date
set forth in the daily update of H.15(519), available through
the world wide website of the Board of Governors of the
Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update"), or
another recognized electronic source used for the purpose of
displaying this rate, for the day in respect of certificates
of deposit having the Index Maturity specified on the face
hereof under the caption "CDs (secondary market)."
o If such rate is not yet published in either H.15(519) or the
H.15 Daily Update or another recognized electronic source by
3:00 p.m., New York City time, on the Calculation Date, then
the Calculation Agent shall determine the CD Rate to be the
arithmetic mean of the secondary market offered rates as of
10:00 a.m., New York City time, on such CD Interest
Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in New York
City selected by the Calculation Agent for negotiable
certificates of deposit in a denomination of $5,000,000 of
major United States money center banks of the highest credit
standing (in the market for negotiable certificates of
deposit) with a remaining maturity closest to the Index
Maturity specified on the face hereof.
o If the dealers selected by the Calculation Agent are not
quoting as mentioned immediately above, the CD Rate in effect
immediately prior to such CD Interest Determination Date shall
not change and shall remain the CD Rate in effect on such CD
Interest Determination Date.
Determination of Commercial Paper Rate
If the Base Rate specified on the face hereof is Commercial Paper Rate,
the interest rate per annum determined with respect to any Interest
Determination Date specified on the
9
<PAGE>
face hereof (each, a "Commercial Paper Interest Determination Date") shall equal
the Money Market Yield (calculated as described below) of the rate on such date
for commercial paper having the Index Maturity specified on the face hereof as
published in H.15(519) under the heading "Commercial Paper--Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield of the rate on the applicable
Commercial Paper Interest Determination Date for commercial
paper having the Index Maturity specified on the face hereof
as published in H.15 Daily Update, or another recognized
electronic source used for the purpose of displaying this
rate, under the heading "Commercial Paper--Nonfinancial."
o If by 3:00 p.m., New York City time, on such Calculation Date
such rate is not yet published in either H.15(519) or H.15
Daily Update or another recognized electronic source, then the
Calculation Agent shall determine the Commercial Paper Rate to
be the Money Market Yield of the arithmetic mean of the
offered rates of 11:00 a.m., New York City time, on such
Commercial Paper Interest Determination Date of three leading
dealers of commercial paper in New York City selected by the
Calculation Agent for commercial paper having the Index
Maturity specified on the face hereof placed for an industrial
issuer whose bond rating is "Aa," or the equivalent, from a
nationally recognized statistical rating agency.
o If the dealers selected by the Calculation Agent are not
quoting as mentioned immediately above, the Commercial Paper
Rate in effect immediately prior to such Commercial Paper
Interest Determination Date shall not change and shall remain
the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date.
"Money Market Yield" will be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
10
<PAGE>
Determination of Federal Funds Rate
If the Base Rate specified on the face hereof is Federal Funds Rate,
the interest rate per annum determined with respect to any Interest
Determination Date specified on the face hereof (each, a "Federal Funds Interest
Determination Date") shall equal the rate on that day for federal funds as
published in H.15(519) under the heading "Federal Funds (Effective)."
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be
the rate on the applicable Federal Funds Interest
Determination Date as published in H.15 Daily Update, or
another recognized electronic source used for the purpose of
displaying this rate, under the heading "Federal
Funds/(Effective)."
o If such rate is not yet published in either H.15(519) or H.15
Daily Update or another recognized electronic source by 3:00
p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be
the arithmetic mean of the rates for the last transaction in
overnight U.S. dollar Federal Funds arranged by each of three
leading brokers of U.S. dollar Federal Funds transactions in
New York City selected by the Calculation Agent prior to 9:00
a.m., New York City time, on such Federal Funds Interest
Determination Date.
o If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate in effect
immediately prior to such Federal Funds Interest Determination
Date shall not change and shall remain the Federal Funds Rate
in effect on such Federal Funds Interest Determination Date.
Determination of LIBOR
If the Base Rate specified on the face hereof is the London interbank
offered rate ("LIBOR"), the interest rate per annum determined with respect to
any Interest Determination Date specified on the face hereof (each, a "LIBOR
Interest Determination Date") shall be determined by the Calculation Agent as
follows:
o As of the LIBOR Interest Determination Date, LIBOR shall be
either:
o if "LIBOR Reuters" is specified on the face hereof,
the arithmetic mean of the offered rates (unless the
Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such
single rate shall be used) for deposits in the Index
Currency (as defined below) having the
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<PAGE>
Index Maturity specified on the face hereof,
commencing on the applicable Interest Reset Date,
that appear (or, if only a single rate is provided as
aforesaid, appears) on the Designated LIBOR Page as
of 11:00 a.m., London time, on such LIBOR Interest
Determination Date; or
o if "LIBOR Telerate" is specified on the face hereof
or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity specified on the
face hereof, commencing on such Interest Reset Date,
that appears on the Designated LIBOR Page as of 11:00
a.m., London time, on such LIBOR Interest
Determination Date.
If fewer than the required number of applicable rates appear, LIBOR on
such LIBOR Interest Determination Date shall be determined in
accordance with the provisions described immediately below.
o With respect to a LIBOR Interest Determination Date on which
fewer than the required number of applicable rates appear on
the Designated LIBOR Page as specified immediately above, the
Calculation Agent will request the principal London offices of
each of four major reference banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in
the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such LIBOR
Interest Determination Date and in a principal amount not less
than $1,000,000 (or the equivalent in the Index Currency as
applicable) that is representative for a single transaction in
such Index Currency in such market at such time. If at least
two quotations are so provided, then LIBOR on such LIBOR
Interest Determination Date shall be the arithmetic mean of
such quotations.
o If only one or no such quotations are so provided, then LIBOR
on such LIBOR Interest Determination Date shall be the
arithmetic mean of the rates quoted at approximately 11:00
a.m., in the applicable principal financial center for the
country of the Index Currency, on such LIBOR Interest
Determination Date by three major banks in such principal
financial center selected by the Calculation Agent for loans
in the Index Currency to leading European banks, having the
Index Maturity specified on the face hereof and in a principal
amount not less than $1,000,000 (or the equivalent in the
Index Currency as applicable) that is representative for a
single transaction in such Index Currency in such market at
such time.
o If the banks so selected by the Calculation Agent are not
quoting as mentioned immediately above, LIBOR in effect
immediately prior to such LIBOR
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<PAGE>
Interest Determination Date shall not change and shall remain
the LIBOR in effect on such LIBOR Interest Determination Date.
For purposes of the preceding discussion, the following capitalized
terms have the following meanings:
"Index Currency" means the currency specified on the face hereof (which
may be a composite currency) for which LIBOR shall be calculated. If no such
currency is specified, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means:
o if "LIBOR Reuters" is designated on the face hereof, the
display on the Reuters Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof
(or any other page as may replace such page or such service
(or any successor service)) for the purpose of displaying the
London interbank rates of major banks for the applicable Index
Currency; or
o if "LIBOR Telerate" is designated on the face hereof or
neither "LIBOR Reuters" nor "LIBOR Telerate" is designated on
the face hereof as the method for calculating LIBOR, the
display on Dow Jones Markets Limited (or any successor
service) on page 3750 if the U.S. dollar is the Index Currency
or with respect to any other Index Currency, on the page
specified on the face hereof (or any other page as may replace
such page or such service (or any successor service)) for the
purpose of displaying the London interbank rates of major
banks for the applicable Index Currency.
Determination of Prime Rate
If the Base Rate specified on the face hereof is Prime Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Prime Interest Determination Date")
shall equal the rate on such date as published in H.15(519) under the heading
"Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
o If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate shall be
the rate on such Prime Interest Determination Date as
published in H.15 Daily Update, or another recognized
electronic source used for the purpose of displaying this
rate, opposite the caption "Bank Prime Loan."
o If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date, in either H.15(519) or H.15
Daily Update or another
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<PAGE>
recognized electronic source, then the Calculation Agent shall
determine the Prime Rate to be the arithmetic mean of the
rates of interest publicly announced by each bank that appears
on the Reuters Screen US Prime1 Page (as defined below) as
such bank's prime rate or base lending rate as in effect for
that Prime Interest Determination Date.
o If fewer than four rates appear on the Reuters Screen US Prime
1 Page on such Prime Rate Interest Determination Date, then
the Calculation Agent shall determine the Prime Rate to be the
arithmetic mean of the prime rates or base lending rates
(quoted on the basis of the actual number of days in the year
divided by 360) as of the close of business on such Prime
Interest Determination Date by at least three major money
center banks in New York City selected by the Calculation
Agent.
o If the banks selected are not quoting as mentioned immediately
above, the Prime Rate in effect immediately prior to such
Prime Interest Determination Date shall not change and shall
remain the Prime Rate in effect on such Prime Interest
Determination Date.
"Reuters Screen US Prime1 Page" means the display designated as page
"USPrime1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the US Prime1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate
If the Base Rate specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Treasury Interest Determination
Date") shall equal the rate applicable to the auction held on such date of
direct obligations of the United States ("Treasury bills") having the Index
Maturity specified on the face hereof under the caption "Investment Rate" on the
display on Bridge Telerate, Inc. (or any successor service) on page 56 (or any
other page as may replace such page on such service ) ("Telerate Page 56") or
page 57 (or any other page as may replace such page on such service) ("Telerate
Page 57") or, if not so published by 3:00 p.m., New York City time, on the
related Calculation Date, the Bond Equivalent Yield (as hereinafter defined) of
the rate for such Treasury bills as published in H.15(519) Daily Update, or such
other recognized electronic source used for the purpose of displaying such rate,
under the heading "U.S. Government Securities/Treasury Bills/Auction High".
The following procedures shall be followed if the Treasury Rate cannot
be determined as described above:
o If the above rate is not published by 3:00 p.m., New York City
time, on the Calculation Date, the Treasury Rate shall be the
Bond Equivalent Yield of the
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<PAGE>
auction rate of such Treasury bills on such Treasury Interest
Determination Date as announced by the United States
Department of the Treasury.
o In the event that the auction rate of Treasury bills having
the Index Maturity specified on the face hereof is not
published or announced as provided above by 3:00 p.m., New
York City time, on such Calculation Date, or if no such
auction is held on such Treasury Interest Determination Date,
then the Calculation Agent shall determine the Treasury Rate
to be the Bond Equivalent Yield of the rate on such Treasury
Rate Interest Determination Date of Treasury bills having the
Index Maturity specified on the face hereof as published in
H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or, if not yet
published by 3:00 p.m., New York City time, on the related
Calculation Date, the rate on such Treasury Rate Interest
Determination Date of such Treasury bills as published in H.15
Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market."
If such rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, then the
Treasury Rate shall be calculated by the Calculation Agent and
shall be the Bond Equivalent Yield of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 p.m.,
New York City time, on such Treasury Interest Determination
Date, of three leading primary United States government
securities dealers selected by the Calculation Agent for the
issue of Treasury bills with a remaining maturity closest to
the Index Maturity specified on the face hereof.
o If the dealers selected by the Calculation Agent are not
quoting as mentioned immediately above, the Treasury Rate in
effect immediately prior to such Treasury Interest
Determination Date shall not change and shall remain the
Treasury Rate in effect on such Treasury Interest
Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Bond Equivalent Yield = D x N x 100
--------------
360 - (D x M)
where "D" refers to the applicable per annum rate for the security quoted on a
bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as the
case may be, and "M" refers to the actual number of days in the interest period
for which interest is being calculated.
15
<PAGE>
Determination of CMT Rate
If the Base Rate specified on the face hereof is CMT Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CMT Interest Determination Date") shall
equal the rate displayed on the Designated CMT Telerate Page (as defined below)
under the caption "Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays Approximately 3:45 p.m.," under the column for the
Designated CMT Maturity Index (as defined below) for:
(i) if the Designated CMT Telerate Page is 7051, such CMT
Interest Determination Date; and
(ii) if the Designated CMT Telerate Page is 7052, the week or
the month, as applicable, ended immediately before the week in which
the related CMT Interest Determination Date occurs.
The following procedures shall be used if the CMT Rate cannot be
determined as described above:
o If such rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate shall be such
treasury constant maturity rate for the Designated CMT
Maturity Index (as defined below) as published in H.15(519).
o If that rate is no longer published, or if not published by
3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity
Index) for the CMT Interest Determination Date with respect to
such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in
H.15(519).
o If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to be a yield
to maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30
p.m., New York City time, on the CMT Interest Determination
Date reported, according to their written records, by three
leading primary United States government securities dealers
(each, a "Reference Dealer") in New York City selected by the
Calculation Agent as described in the following sentence. The
Calculation Agent shall select five Reference Dealers and
shall eliminate the highest quotation (or, in the event of
overlap, one of the highest) and the lowest
16
<PAGE>
quotation (or, in the event of overlap, one of the lowest),
for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury notes") with an
original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such
Designated CMT Maturity Index minus one year.
o If the Calculation Agent cannot obtain three such Treasury
notes quotations, the Calculation Agent shall determine the
CMT Rate to be a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the CMT
Interest Determination Date of three Reference Dealers in New
York City (selected using the same method described above) for
Treasury notes with an original maturity of the number of
years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least
$100,000,000. If two Treasury notes with an original maturity
as described above have remaining terms to maturity equally
close to the Designated CMT Maturity Index, the Calculation
Agent shall obtain quotations for the Treasury note with the
shorter remaining term to maturity.
o If three or four (but not five) of such Reference Dealers are
quoting as described above, then the CMT Rate shall be based
on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes shall be
eliminated.
o If fewer than three Reference Dealers selected by the
Calculation Agent are quoting as mentioned immediately above,
the CMT Rate in effect immediately prior to such CMT Interest
Determination Date shall not change and shall remain the CMT
Rate in effect on such CMT Interest Determination Date.
"Designated CMT Telerate Page" means the display on the Telerate (or
any successor service) on the page specified on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)). If no such page is
specified, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate shall be
calculated.
17
<PAGE>
Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Modification and Waivers; Obligation of the Company Absolute
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together as a class.
The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together as a class, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with those provisions of the Indenture. Certain past defaults under
the Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except that in the event the Company deposits money or Eligible
Instruments as provided in Section 401 or 403 of the Indenture, such payments
shall be made only from proceeds of such money or eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security shall not be less
than the minimum authorized denomination
18
<PAGE>
hereof) on or after the date designated as the Initial Redemption Date on the
face hereof at 100% of the unpaid principal amount hereof or the portion thereof
redeemed multiplied by a percentage (the "Redemption Percentage"), together with
accrued interest, if any, to the Redemption Date. The Redemption Percentage
shall initially be equal to the Initial Redemption Percentage specified on the
face hereof and shall decline at each anniversary of the Initial Redemption Date
by the amount of the Annual Redemption Percentage Reduction specified on the
face hereof, until the Redemption Percentage is equal to 100%. The Company may
exercise such option by causing the Trustee to mail a notice of such redemption
at least 30 but not more than 60 days prior to the applicable Redemption Date to
each Holder of the Securities of this series to be redeemed. In the event of
redemption of this Security in part only, the Company shall issue a new Security
or Securities for the unredeemed portion hereof in the name of the Holder hereof
upon the cancellation hereof. If less than all of the Securities of this series
with like tenor and terms are to be redeemed, the Securities to be redeemed
shall be selected by the Trustee by such method as the Trustee shall deem fair
and appropriate.
Sinking Fund
Unless otherwise specified on the face hereof, this Security shall not
be entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable
prior to the Stated Maturity Date at the option of the Holder, in whole or in
part and in increments of $1,000 (provided that any remaining principal amount
of this Security surrendered for partial repayment shall not be less than the
minimum authorized denomination hereof), on or after the date designated as an
Optional Repayment Date on the face hereof at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the Repayment Date. In order for this
Security to be repaid, the Company must receive at the applicable address of the
Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Security, at
least 30 but not more than 45 days prior to an Optional Repayment Date, either
(i) this Security, with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby, and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed, not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter (and this
Security and form duly completed are received by the Company by such fifth
Business Day). Any such election shall be irrevocable. The address to which such
deliveries to __________________________________ are to be made is
______________________ ______________________________________ (or, at such other
place as the Company shall
19
<PAGE>
notify the Holders of the Securities of this series). All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Security
for repayment will be determined by the Company, whose determination will be
final and binding. Upon any partial repayment, this Security shall be cancelled
and a new Security or Securities for the remaining principal amount hereof shall
be issued in the name of the Holder of this Security.
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
Registration of Transfer
Upon due presentment for registration of transfer of this Security at
the office or agency of the Company maintained in _____________ or
_________________, a new Security or Securities of this series in authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, as provided in the Indenture and subject to the
limitations provided therein and to the limitations described below, without
charge except for any tax or other governmental charge imposed in connection
therewith.
If this Security is a Global Security (as specified above), this
Security is exchangeable for definitive Securities in registered form only if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a successor Depositary within 90 days
after receiving such notice or after becoming aware that the Depositary has
ceased to be so registered as a clearing agency, (y) the Company in its sole
discretion determines that this Security shall be exchangeable for definitive
Securities in registered form and notifies the Trustee thereof or (z) an Event
of Default with respect to the Securities represented hereby has occurred and is
continuing. If this Security is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, Stated Maturity Date and other terms and of authorized denominations
aggregating a like amount.
If this Security is a Global Security (as specified above), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except as provided
above, owners of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Securities in definitive form and will
not be considered the Holders hereof for any purpose under the Indenture.
20
<PAGE>
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
Defined Terms
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
21
<PAGE>
--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
--------------------
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or the portion thereof specified below), pursuant
to its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_____________________________, at ______________________________________ (please
print or typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the Holder elects to have repaid: $__________.
22
<PAGE>
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination or denominations (which shall be $1,000 or
an integral multiple thereof) of the Security or Securities to be issued to the
Holder for the portion of the within Securities not being repaid (in the absence
of any specification, one such Security will be issued for the portion not being
repaid): $______________.
Date: _________________ __________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the
name as written upon page 2 of the within
Security in every particular without
alteration or enlargement or any change
whatsoever.
23
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_____________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
_____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
24
<PAGE>
the within Security of WELLS FARGO & COMPANY and all rights thereunder and does
hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_________________________
Signature Guaranteed: _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
25
<PAGE>
EXHIBIT 4(t)
[Face of Debenture]
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
CUSIP NO. ___________ PRINCIPAL AMOUNT: $___________
REGISTERED NO. __
WELLS FARGO & COMPANY
____% DEBENTURES DUE ____
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & Co., or registered assigns,
the principal sum of ___________________________ ($___________) on
______________ and to pay interest thereon from _____________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for semi-annually on __________ and __________ of each year commencing
________________ at the rate of ____% per annum, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be __________ or _____________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
Any interest not punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior
<PAGE>
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
Payment of interest on this Security will be made in immediately
available funds at the office or agency of the Company maintained for that
purpose in the City of ______________________, or the City of _________________,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that, at the option of the Company, payment of interest may be paid by
check mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or by wire transfer to such account as may have
been designated by such Person. Payment of principal of and interest on this
Security at Maturity will be made against presentation of this Security at the
office or agency of the Company maintained for that purpose in the City of
_______________________, or the City of _________________.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: _____________
WELLS FARGO & COMPANY
By:_______________________________
Its__________________________
[SEAL]
Attest:___________________________
Its__________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
__________________________________,
as Trustee
By:_______________________________
Authorized Signature
3
<PAGE>
[Reverse of Debenture]
WELLS FARGO & COMPANY
____% DEBENTURES DUE ____
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of _______________, as amended or
supplemented from time to time (herein called the "Indenture"), between the
Company and __________________________________, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $___________.
[**The Securities of this series are not subject to redemption prior to
______________.] [**The Securities of this series are subject to redemption
prior to _________________ as follows: ____________________________________] The
Securities will not be entitled to any sinking fund.
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together, on behalf of
the Holders of all Securities of such series, to waive compliance by the Company
with those provisions of the Indenture. Certain past defaults under the
Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this
4
<PAGE>
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Upon due presentment for registration of transfer of this Security at
the office or agency of the Company in the City of ______________________, or
the City of _________________, a new Security or Securities of this series in
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange herefor, as provided in the Indenture and subject
to the limitations provided therein and to the limitations described below,
without charge except for any tax or other governmental charge imposed in
connection therewith.
This Security is exchangeable for definitive Securities in registered
form only if (x) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for this Security or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (y) the Company in its sole discretion
determines that this Security shall be exchangeable for definitive Securities in
registered form and notifies the Trustee thereof or (z) an Event of Default with
respect to the Securities represented hereby has occurred and is continuing. If
this Security is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for definitive Securities in registered form, bearing interest at
the same rate, having the same date of issuance, redemption provisions, Stated
Maturity and other terms and of authorized denominations aggregating a like
amount.
This Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor of the Depositary or a nominee of such successor.
Except as provided above, owners of beneficial interests in this global Security
will not be entitled to receive physical delivery of Securities in definitive
form and will not be considered the Holders hereof for any purpose under the
Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except that in the event the Company deposits money or Eligible
Instruments as provided in Section 401 or 403 of the Indenture, such payments
will be made only from proceeds of such money or Eligible Instruments.
5
<PAGE>
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_____________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
_____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
7
<PAGE>
the within Security of WELLS FARGO & COMPANY and does hereby irrevocably
constitute and appoint __________________ attorney to transfer the said Security
on the books of the Company, with full power of substitution in the premises.
Dated: _________________________
_________________________
_________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
8
<PAGE>
EXHIBIT 4(u)
[Face of Debenture]
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
CUSIP NO. ___________ PRINCIPAL AMOUNT: $___________
REGISTERED NO. __
WELLS FARGO & COMPANY
____% SUBORDINATED DEBENTURES DUE ____
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & Co., or registered assigns,
the principal sum of ___________________________ ($___________) on
______________ and to pay interest thereon from _____________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for semi-annually on __________ and __________ of each year commencing
________________ at the rate of ____% per annum, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be __________ or _____________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
Any interest not punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
<PAGE>
Payment of interest on this Security will be made in immediately
available funds at the office or agency of the Company maintained for that
purpose in the City of _____________________, or the City of _________________,
or, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that, at the option of the Company, payment of interest may be paid by
check mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or by wire transfer to such account as may have
been designated by such Person. Payment of principal of and interest on this
Security at Maturity will be made against presentation of this Security at the
office or agency of the Company maintained for that purpose in the City of
____________________, or the City of _________________.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: _____________
WELLS FARGO & COMPANY
By:_________________________________
Its____________________________
[SEAL]
Attest:_____________________________
Its____________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
__________________________________,
as Trustee
By:________________________________
Authorized Signature
3
<PAGE>
[Reverse of Debenture]
WELLS FARGO & COMPANY
____% SUBORDINATED DEBENTURES DUE ____
This Security is one of a duly authorized issue of subordinated
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an indenture dated as of _______________, as
amended or supplemented from time to time (herein called the "Indenture"),
between the Company and __________________________________, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $___________.
[**The Securities of this series are not subject to redemption prior to
______________.] [**The Securities of this series are subject to redemption
prior to _________________ as follows:
_________________________________________________] [**The Securities will not be
entitled to any sinking fund.]
The indebtedness evidenced by the Securities is, to the extent and in
the manner set forth in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the principal of and premium, if any,
and interest on all Senior Debt of the Company, and each Holder of the
Securities, by accepting the same, agrees to and shall be bound by the
provisions of the Indenture with respect hereto.
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together, on behalf of
the Holders of all Securities of such series, to waive compliance by the Company
with those provisions of the Indenture. Certain past defaults under the
Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series
4
<PAGE>
at the time Outstanding, on behalf of the Holders of all Securities of such
series. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Upon due presentment for registration of transfer of this Security at
the office or agency of the Company in the City of _____________________, or the
City of _________________, a new Security or Securities of this series in
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange herefor, as provided in the Indenture and subject
to the limitations provided therein and to the limitations described below,
without charge except for any tax or other governmental charge imposed in
connection therewith.
This Security is exchangeable for definitive Securities in registered
form only if (x) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for this Security or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (y) the Company in its sole discretion
determines that this Security shall be exchangeable for definitive Securities in
registered form and notifies the Trustee thereof or (z) an Event of Default with
respect to the Securities represented hereby has occurred and is continuing. If
this Security is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for definitive Securities in registered form, bearing interest at
the same rate, having the same date of issuance, redemption provisions, Stated
Maturity and other terms and of authorized denominations aggregating a like
amount.
This Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor of the Depositary or a nominee of such successor.
Except as provided above, owners of beneficial interests in this global Security
will not be entitled to receive physical delivery of Securities in definitive
form and will not be considered the Holders hereof for any purpose under the
Indenture.
Subject to the rights of holders of Senior Debt of the Company set
forth in this Security and the Indenture referred to above, no reference herein
to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed, except
that in the event the Company deposits money or Eligible Instruments as provided
in Section 401 or 403 of the Indenture, such payments will be made only from
proceeds of such money or Eligible Instruments.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
5
<PAGE>
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_____________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
_____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
7
<PAGE>
the within Security of WELLS FARGO & COMPANY and does hereby irrevocably
constitute and appoint __________________ attorney to transfer the said Security
on the books of the Company, with full power of substitution in the premises.
Dated: _________________________
_______________________________________
_______________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
8
<PAGE>
EXHIBIT 4(v)
WELLS FARGO & COMPANY
----------------------
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
----------------------
[CUMULATIVE] [NONCUMULATIVE] [CONVERTIBLE] [EXCHANGEABLE]
[PREFERRED] [PREFERENCE] STOCK, SERIES _
(Without Par Value)
----------------------
WELLS FARGO & COMPANY, 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, as
amended, which authorizes the issuance of up to [20,000,000 shares of preferred
stock, without par value,] [4,000,000 shares of preference stock, without par
value] (the "Preferred Stock") and pursuant to authority conferred upon the
Securities Committee of the Board 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 April 27, 1999,
and at a meeting of the Securities Committee duly held on ______________, ____:
1. The Board on April 27, 1999, 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 from
time to time, in one or more public offerings, securities in the form or forms
of one or more of the following (all of which are referred to herein as
"Securities"), subject to the preparation and filing with the SEC of the
Registration Statement covering such Securities and effectiveness thereof under
the 1933 Act: (i) one or more series of preferred or preference stock of the
Corporation (such shares, which are designated as Preferred Stock and Preference
Stock in the Corporation's Restated Certificate of Incorporation, as amended,
being hereinafter collectively referred to as 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
<PAGE>
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 (including associated Preferred Stock purchase
rights (the "Common Stock") or other capital securities of the Corporation; (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, or upon
the exercise of Stock Warrants (the Securities described in clauses (i), (iii),
(v) and (vi) hereof, together with any Securities related thereto, are referred
to collectively herein as "Equity Related Securities"), all of such Securities
to be issuable pursuant to the Registration Statement in an aggregate dollar
amount not to exceed $10,000,000,000 (the "Issuance Limit"), which Issuance
Limit shall be determined (1) with respect to the issuance of Debt Securities,
whether or not 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), provided, however, that the total principal amount of
Debt Securities that may be issued from time to time shall not exceed the
borrowing limits set forth in the January 26, 1999 Borrowing Limits Resolutions;
(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 shall have and may exercise,
subject to the Issuance Limit and these resolutions, the full powers of the
Board to authorize the issuance of Equity Related Securities, to establish all
terms and conditions and approve the form or forms of any agreements with
respect thereto, to designate the officers and employees authorized to take such
actions on behalf of the Corporation as the Securities Committee deems necessary
or appropriate, and to take any and all other actions the Securities Committee
deems necessary or appropriate in connection with Equity Related Securities;
provided, however, that any shares of Preferred Stock thus authorized for
issuance shall have the voting rights set forth in Appendix A to these
resolutions."
"APPENDIX A - VOTING RIGHTS
RESOLVED that no series of the Preferred Stock, 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 shares of a designated series of the Preferred Stock (such shares of such
designated series of Preferred Stock being hereinafter referred to as the
"Shares of such series") 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
2
<PAGE>
outstanding Shares of such series 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 such series, 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 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 such series (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 such series (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 such series shall have been paid in full, at which time such right
with respect to such Shares of such series 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 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.
So long as any Shares of such series remain outstanding, the consent of
the holders of the outstanding Shares of such series and outstanding shares of
all other series of Preferred Stock ranking on a parity with such Shares of 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, by a vote of at least two-thirds of all such outstanding
Shares of such series 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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(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 of such series 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 the Shares of such series designating
the Shares of such series 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 such series 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
such series 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 of such series shall have been
redeemed or sufficient funds shall have been deposited in trust to effect such
redemption."
2. The Securities Committee on ________________, ____, 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 Incorporation, as amended, of the
Corporation, as amended, and those established by the resolutions of the Board
adopted on April 27, 1999, are hereby fixed as follows:
[CUMULATIVE] [NONCUMULATIVE] [CONVERTIBLE] [EXCHANGEABLE]
[PREFERRED] [PREFERENCE] STOCK, SERIES _
1. Designation and Number of Shares. (a) The designation of the series
of preferred stock, without par value, provided for herein shall be
"[Cumulative] [Noncumulative] [Convertible] [Exchangeable] [Preferred]
[Preference] Stock, Series __" (hereinafter referred to as the "Series _
Preferred Stock") and the number of authorized shares constituting the Series _
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Preferred Stock is ____. The number of authorized shares of Series _ 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, but the number of authorized shares of
Series _ Preferred Stock shall not be increased.
(b) All shares of Series _ Preferred Stock purchased, redeemed, or
converted 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 Series _ Preferred Stock.
2. Dividends. (a) [Holders of shares of Series _ 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 $___________ per share, payable quarterly on
__________________, ________________, ____________________ and
___________________ of each year, commencing _______________, ____. Dividends on
shares of the Series _ Preferred Stock will be cumulative from the date of
initial issuance of such shares of Series _ Preferred Stock.] [The holders of
shares of Series ___ Preferred Stock shall be entitled to receive dividends out
of any assets legally available therefor. Such dividends shall be payable only
when, as, and if declared by the Board and shall be noncumulative.] 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 $______
annual rate. 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 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 Series _ 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 set apart for such payment on shares of
Series _ 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 Series _ Preferred Stock
and any other series of preferred stock ranking on a parity as to dividends with
Series _ Preferred Stock, all dividends declared upon shares of Series _
Preferred Stock and any other series of preferred stock ranking on a parity as
to dividends with Series _ Preferred Stock shall be declared pro rata so that
the amount of dividends declared per share on Series _ 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 Series _ Preferred Stock
and such other series of preferred stock bear to each other. Holders of shares
of Series _ 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 Series _ Preferred Stock. No interest, or sum
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<PAGE>
of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on Series _ Preferred Stock which may be in arrears.]
(ii) So long as any shares of Series _ 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 Series _ 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 or other distribution
declared or made upon the Common Stock or any other capital stock of the
Corporation ranking junior to or on a parity with Series _ 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 Series _
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 Series _ Preferred Stock as to dividends and upon
liquidation), unless, in each case, the [declared but unpaid] [full cumulative]
dividends on all outstanding shares of Series _ 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].
3. Optional Redemption. (a) The shares of Series _ Preferred Stock may
be redeemed at the option of the Corporation, as a whole, or from time to time
in part, at any time, upon not less than 30 nor more than 60 days' prior notice
mailed to the holders of the shares to be redeemed at their addresses as shown
on the stock books of the Corporation; provided, however, that shares of Series
_ Preferred Stock shall not be redeemable prior to _____________, ____. Subject
to the foregoing, shares of Series _ Preferred Stock are redeemable at the
following redemption prices per share (expressed as a percentage of the
liquidation preference thereof), if redeemed during the 12-month period
beginning in the year indicated:
Year Price Year Price
---- ----- ---- -----
% %
and 100% if redeemed on or after ______, ____, in each case together with an
amount equal to all dividends [declared but unpaid] [(whether or not earned or
declared) accrued and accumulated and unpaid to, but excluding, the date fixed
for redemption].
(b) If fewer than all of the outstanding shares of Series _ 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 the
holders of shares of Series _ Preferred Stock in proportion to the number of
such shares held by such holders (with adjustments to avoid redemption of
fractional shares).
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(c) If the Corporation shall redeem shares of Series _ Preferred Stock,
notice of such redemption shall be mailed or caused to be mailed by the
Corporation by first class mail, postage prepaid, 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. Such notice shall be so mailed 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 Series _ Preferred
Stock to be redeemed, (iii) the redemption price, (iv) the place or places where
certificates for such shares of Series _ Preferred Stock are to be surrendered
for payment of the redemption price, [and] [(v) that dividends on the shares to
be redeemed will cease to accrue on such redemption date] [, and (vi) the date
upon which the holder's conversion rights (as hereinafter defined) as to such
shares terminate]. If fewer than all shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
[(d) Notwithstanding the foregoing provisions of subsection (a) of this
Section 3, if any dividends on shares of Series _ Preferred Stock are in
arrears, no shares of Series _ Preferred Stock shall be redeemed unless all
outstanding shares of Series _ Preferred Stock are simultaneously redeemed, and
the Corporation shall not purchase or otherwise acquire any shares of Series _
Preferred Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series _ Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Series _ Preferred Stock.]
(e) If notice of redemption has been given under subsection (c) of this
Section 3, from and after the redemption date for the shares of Series _
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), [dividends on the shares of Series _ 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 the redemption
price) shall cease. Upon surrender in accordance with such notice of the
certificates for any shares so redeemed (properly endorsed or assigned 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
at the redemption price aforesaid. In case fewer than all of the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
[4. Conversion. (a) Subject to and upon compliance with the provisions
of this Section 4, each holder of Series _ Preferred Stock shall have the right,
at each such holder's option, at any time, to convert any or all of the shares
of Series _ Preferred Stock held by each such holder into the number of fully
paid and nonassessable shares of Common Stock (calculated as to each conversion,
for the purpose of determining the amount of any cash payments provided for
under subsection (c) of this Section 4, to the nearest 1/100 of a share of
Common Stock, with 1/200 of a share of Common Stock being rounded upward)
obtained by dividing the liquidation preference of a share of Series _ Preferred
Stock by the Conversion
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<PAGE>
Price (as defined below) and multiplying such resulting number by the number of
shares of Series _ Preferred Stock to be converted, and by surrender of such
shares of Series _ Preferred Stock so to be converted, such surrender to be made
in the manner provided in subsection (b) of this Section 4; provided, however,
that the right to convert shares called for redemption pursuant to Section 3
shall terminate at the close of business on the date fixed for such redemption
unless the Corporation shall default in making payment of the amount payable
upon such redemption.
The term "Applicable Price" means (i) in the event of a Fundamental
Change (as hereinafter defined) in which the holders of the Common Stock receive
only cash, the amount of cash received by a holder of one share of Common Stock
and (ii) in the event of any other Fundamental Change, the average of the
reported last sale prices for one share of the Common Stock (determined as set
forth in paragraph (d)(v) of this Section 4) during the ten Trading Days (as
defined in paragraph (d)(v) of this Section 4) prior to the record date for the
determination of the holders of Common Stock entitled to receive cash,
securities, property, or other assets in connection with such Fundamental
Change, or, if there is no such record date, prior to the date upon which the
holders of Common Stock shall have the right to receive such cash, securities,
property, or other assets.
For purposes of this Section 4, the term "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, except that for purposes of subsection (e) of this Section 4, the term
"Common Stock" shall also mean and include stock of the Corporation of any
class, whether now or hereafter authorized, which shall have the right to
participate in the distribution of either earnings or assets of the Corporation
without limit as to amount or percentage.
The term "Common Stock Fundamental Change" means any Fundamental Change
in which more than 50% (by value as determined in good faith by the Board) of
the consideration received by holders of Common Stock consists of common stock
that, for the ten Trading Days (as defined in paragraph (d)(v) of this Section
4) prior to such Fundamental Change, has been admitted for listing on a national
securities exchange or quoted on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations System.
The term "Conversion Price" shall mean $_____, as adjusted in
accordance with the provisions of this Section 4.
The term "Fundamental Change" means the occurrence of any transaction
or event in connection with which all or substantially all the Common Stock
shall be exchanged for, converted into, or acquired for, or shall constitute
solely the right to receive, cash, securities, property, or other assets
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise). In the case of a plan involving more than one such transaction or
event, for purposes of adjustment of the Conversion Price, such Fundamental
Change shall be deemed to have occurred when
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<PAGE>
substantially all the Common Stock shall have been exchanged for, converted
into, or acquired for, or shall constitute solely the right to receive, such
cash, securities, property, or other assets, but the adjustment shall be based
upon the consideration that the holders of Common Stock received in the
transaction or event as a result of which more than 50% of the Common Stock
shall have been exchanged for, converted into, or acquired for, or shall
constitute solely the right to receive, such cash, securities, property, or
other assets.
The term "Non-Stock Fundamental Change" means any Fundamental Change
other than a Common Stock Fundamental Change.
The term "Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the reported last sale prices for one
share of the common stock received by holders of Common Stock in such Common
Stock Fundamental Change (determined as set forth in paragraph (d)(v) of this
Section 4 as if such paragraph were applicable to such common stock) during the
ten Trading Days (as defined in paragraph (d)(v) of this Section 4) prior to the
record date for the determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record date, prior to the date
upon which the holders of Common Stock shall have the right to receive such
common stock.
The term "Reference Market Price" shall initially mean $_______, and,
in the event of any adjustment to the Conversion Price pursuant to paragraphs
(d)(i), (d)(ii), (d)(iii), or (d)(iv) of this Section 4, the Reference Market
Price shall also be adjusted so that the ratio of the Reference Market Price to
the Conversion Price after giving effect to any such adjustment shall always be
the same as the ratio of $_______ to the Conversion Price set forth in this
Certificate of Designations (without regard to any adjustment thereto).
(b) In order to exercise the conversion privilege, the holder of each
share of Series _ Preferred Stock to be converted shall surrender the
certificate representing such share at the office of the conversion agent for
the Series _ Preferred Stock in South St. Paul, Minnesota, appointed for such
purpose by the Corporation, with the Notice of Election to Convert on the back
of such certificate completed and signed. Unless the shares issuable on
conversion are to be issued in the same name as the name in which such share of
Series _ Preferred Stock is registered, each share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's duly authorized
attorney, and by an amount sufficient to pay any transfer or similar tax.
The holders of shares of Series _ Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date between such record date and the dividend
payment date shall not be entitled to receive such dividend on such dividend
payment date) on the corresponding dividend payment date, notwithstanding the
conversion thereof or the Corporation's default in payment of the dividend due
on such dividend payment date. However, shares of Series _ Preferred Stock
surrendered for conversion during the period between the close of business on
any dividend payment record date and the opening of business on the
corresponding dividend payment date (except shares
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<PAGE>
called for redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the dividend payable on such shares
on such dividend payment date. A holder of shares of Series _ Preferred Stock on
a dividend payment record date who (or whose transferee) tenders any of such
shares for conversion into shares of Common Stock on a dividend payment date
will receive the dividend payable by the Corporation on such shares of Series _
Preferred Stock on such date, and the converting holder need not include payment
in the amount of such dividend upon surrender of shares of Series _ Preferred
Stock for conversion. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Common Stock issued upon such
conversion.
As promptly as practicable after the surrender of the certificates for
shares of Series _ Preferred Stock as aforesaid, the Corporation shall issue and
shall deliver at the office of the conversion agent to such holder, or on such
holder's written order, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such shares in accordance
with the provisions of this Section 4, and any fractional interest in respect of
a share of Common Stock arising upon such conversion shall be settled as
provided in subsection (c) of this Section 4.
Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which the certificates for shares of
Series _ Preferred Stock shall have been surrendered and such notice (and, if
applicable, payment of an amount equal to the dividend payable on such shares)
received by the Corporation as aforesaid, and the person or persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby at such time on such date,
and such conversion shall be at the Conversion Price in effect at such time on
such date, unless the stock transfer books of the Corporation shall be closed on
such date, in which event such person or persons shall be deemed to have become
such holder or holders of record at the close of business on the next succeeding
day on which such stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date upon which such shares shall have
been surrendered and such notice (and, if applicable, payment) received by the
Corporation. All shares of Common Stock delivered upon conversion of the Series
_ Preferred Stock will upon delivery be duly and validly issued and fully paid
and nonassessable, free of all liens and charges and not subject to any
preemptive rights.
(c) In connection with the conversion of any shares of Series _
Preferred Stock, no fractional shares or scrip representing fractions of shares
of Common Stock shall be issued upon conversion of Series _ Preferred Stock.
Instead of any fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of Series _ Preferred
Stock or a fraction thereof, the Corporation shall pay to the holder of such
share of Series _ Preferred Stock or fraction thereof an amount in cash
(computed to the nearest cent, with one-half cent being rounded upward) equal to
the reported last sale price (as defined in paragraph (d)(v) of this Section 4)
of the Common Stock on the Trading Day (as defined in paragraph (d)(v) of this
Section 4) next preceding the day of conversion multiplied by the
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fraction of a share of Common Stock represented by such fractional interest. If
more than one share of Series _ Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full shares of Common
Stock issuable upon conversion thereof shall be computed on the basis of the
aggregate liquidation preference of the shares of Series _ Preferred Stock so
surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y)
subdivide the outstanding Common Stock into a greater number of shares,
or (z) combine the outstanding Common Stock into a smaller number of
shares, the Conversion Price shall be adjusted so that the holder of
any share of Series _ Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common
Stock of the Corporation which such holder would have owned or have
been entitled to receive after the happening of any of the events
described above had such share been converted immediately prior to the
record date in the case of a dividend or the effective date in the case
of subdivision or combination. An adjustment made pursuant to this
paragraph (i) shall become effective immediately after the record date
in the case of a dividend, except as provided in paragraph (viii)
below, and shall become effective immediately after the effective date
in the case of a subdivision or combination.
(ii) [Except for [list exempted issuances] in] [In] case the
Corporation shall issue rights or warrants to all holders of the Common
Stock entitling them (for a period expiring within 45 days after the
record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price
per share of Common Stock (as defined for purposes of this paragraph
(ii) in paragraph (v) below), at the record date for the determination
of stockholders entitled to receive such rights or warrants, the
Conversion Price in effect immediately prior thereto shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of
such rights or warrants by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares
of Common Stock so offered would purchase at such current market price,
and the denominator of which shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock receivable upon
exercise of such rights or warrants. Such adjustment shall be made
successively whenever any such rights or warrants are issued, and shall
become effective immediately, except as provided in paragraph (viii)
below, after such record date. In determining whether any rights or
warrants entitle the holders of the Series _ Preferred Stock to
subscribe for or purchase shares of Common Stock at less than such
current market price, and in determining the aggregate offering price
of such shares of Common Stock, there shall be taken into account any
consideration received by the Corporation for such rights or warrants
plus the exercise price thereof, the value of such consideration or
exercise price, as the case may be, if other than cash, to be
determined by the Board.
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(iii) In case the Corporation shall distribute to all holders
of Common Stock any shares of capital stock of the Corporation (other
than Common Stock) or evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained earnings
of the Corporation) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to
in paragraph (ii) above) (any of the foregoing being hereinafter in
this paragraph (iii) called the "Securities"), then, in each such case,
unless the Corporation elects to reserve such Securities for
distribution to the holders of the Series _ Preferred Stock upon the
conversion of the shares of Series _ Preferred Stock so that any such
holder converting shares of Series _ Preferred Stock will receive upon
such conversion, in addition to the shares of the Common Stock to which
such holder is entitled, the amount and kind of such Securities which
such holder would have received if such holder had, immediately prior
to the record date for the distribution of the Securities, converted
its shares of Series _ Preferred Stock into Common Stock, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the
numerator of which shall be the current market price per share (as
defined for purposes of this paragraph (iii) in paragraph (v) below) of
the Common Stock on the record date mentioned above less the then fair
market value (as determined by the Board, whose determination shall, if
made in good faith, be conclusive) of the portion of the Securities so
distributed applicable to one share of Common Stock, and the
denominator of which shall be the current market price per share (as
defined in paragraph (v) below) of the Common Stock; provided, however,
that in the event the then fair market value (as so determined) of the
portion of the Securities so distributed applicable to one share of
Common Stock is equal to or greater than the current market price per
share (as defined in paragraph (v) below) of the Common Stock on the
record date mentioned above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of shares of
Series _ Preferred Stock shall have the right to receive the amount and
kind of Securities such holder would have received had such holder
converted each such share of Series _ Preferred Stock immediately prior
to the record date for the distribution of the Securities. Such
adjustment shall become effective immediately, except as provided in
paragraph (viii) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(iv) If, pursuant to paragraph (ii) or (iii) above, the
Conversion Price at which a share of Series _ Preferred Stock is
convertible shall have been adjusted because the Corporation has
declared a dividend or made a distribution on the outstanding shares of
Common Stock in the form of any right or warrant to purchase securities
of the Corporation, or the Corporation has issued any such right or
warrant, then, upon the expiration of any such unexercised right or
unexercised warrant, the Conversion Price shall forthwith be adjusted
to equal the Conversion Price that would have applied had such right or
warrant never been declared, distributed, or issued.
(v) For the purpose of any computation under paragraph (ii)
above, the current market price per share of Common Stock on any date
shall be deemed to be the average of the reported last sale prices for
the 30 consecutive Trading Days (as defined below) commencing 45
Trading Days before the date in question. For the purpose of any
computation under paragraph (iii) above, the current market price per
share of Common Stock on any date
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shall be deemed to be the average of the reported last sales prices for
the ten consecutive Trading Days before the date in question. The
reported last sale price for each day (whether for purposes of
paragraph (ii) or paragraph (iii)) shall be 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 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. As used herein, the term
"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 day other than a Saturday or Sunday
or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this paragraph (vi) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment;
and provided further that adjustment shall be required and made in
accordance with the provisions of this Section 4 (other than this
paragraph (vi)) not later than such time as may be required in order to
preserve the tax free nature of a distribution to the holders of Common
Stock. All calculations under this Section 4 shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be,
with one-half cent and 1/200 of a share, respectively, being rounded
upward. Anything in this subsection (d) to the contrary
notwithstanding, the Corporation shall be entitled to make such
reductions in the Conversion Price, in addition to those required by
this subsection (d), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made
by the Corporation to its stockholders shall not be taxable.
(vii) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with any conversion agent
an officers' certificate, signed by the Chairman, the President or any
Executive Vice President, and by the Treasurer, an Assistant
13
<PAGE>
Treasurer, the Secretary, or an Assistant Secretary of the Corporation,
setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such
adjustment. Promptly after delivery of such certificate, the
Corporation shall prepare a notice of such adjustment of the Conversion
Price setting forth the adjusted Conversion Price and the date on which
such adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to the holders of shares of Series _
Preferred Stock at their addresses as shown on the stock books of the
Corporation.
(viii) In any case in which this subsection (d) provides that
an adjustment shall become effective immediately after a record date
for an event, the Corporation may defer until the occurrence of such
event (y) issuing to the holder of any share of Series _ Preferred
Stock converted after such record date and before the occurrence of
such event the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (z) paying to such holder any amount in
cash in lieu of any fractional share of Common Stock pursuant to
subsection (c) of this Section 4.
(e) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of retained
earnings); or
(ii) [except for [list exempted issuances]], the Corporation
shall authorize the granting to the holders of Common Stock of rights
or warrants to subscribe for or purchase any shares of any class of
capital stock of the Corporation or any other rights or warrants; or
(iii) there shall be any reclassification or change of the
Common Stock (other than a subdivision or combination of the
outstanding Common Stock and other than a change in the par value, or
from par value to no par value, or from no par value to par value), or
any consolidation, merger, or statutory share exchange to which the
Corporation is a party and for which approval of any stockholders of
the Corporation is required, or any sale or transfer of all or
substantially all the assets of the Corporation as an entirety or any
Fundamental Change; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation,
then the Corporation shall cause to be filed with the conversion agent and shall
cause to be mailed to the holders of shares of the Series _ Preferred Stock at
their addresses as shown on the stock books of the Corporation, at least 15 days
prior to the applicable date hereinafter specified, a notice stating (y) the
date on which a record is to be taken for the purpose of such dividend,
distribution, or granting of rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution,
14
<PAGE>
or rights or warrants are to be determined, or (z) the date on which such
reclassification, change, consolidation, merger, statutory share exchange, sale,
transfer, Fundamental Change, dissolution, liquidation, or winding up is
expected to become effective and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, statutory share exchange, sale,
transfer, Fundamental Change, dissolution, liquidation, or winding up. Failure
to give such notice or any defect therein shall not affect the legality or
validity of the proceedings described in subsection (h) of this Section 4 or in
paragraph (d)(i)[, (d)(ii), (d)(iii),] or (d)(iv) of this Section 4.
(f) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of Common
Stock held in its treasury, or both, for the purpose of effecting conversions of
the Series _ Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of Series _ Preferred
Stock not theretofore converted. For purposes of this subsection (f), the number
of shares of Common Stock which shall be deliverable upon the conversion of all
outstanding shares of Series _ Preferred Stock shall be computed as if at the
time of computation all such outstanding shares were held by a single holder.
Before taking any action which would cause any adjustment reducing the
Conversion Price below the then par value (if any) of the shares of Common Stock
deliverable upon conversion of the Series _ Preferred Stock, the Corporation
will take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Corporation may validly and legally issue fully paid
and nonassessable shares of Common Stock at such adjusted Conversion Price.
The Corporation will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Series _ Preferred Stock prior
to such delivery upon each national securities exchange, if any, upon which the
outstanding Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities which the Corporation shall be
obligated to deliver upon conversion of the Series _ Preferred Stock, the
Corporation will endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(g) 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 Series _ 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 Series _ 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
15
<PAGE>
the amount of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
(h) Notwithstanding any other provision herein to the contrary, if any
of the following events occur, namely (w) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (x) any consolidation,
merger, or combination of the Corporation with or into another corporation as a
result of which holders of Common Stock shall be entitled to receive stock,
securities, or other property or assets (including cash) with respect to or in
exchange for such Common Stock, (y) any sale or conveyance of the properties and
assets of the Corporation as, or substantially as, an entirety to any other
entity as a result of which holders of Common Stock shall be entitled to receive
stock, securities, or other property or assets (including cash) with respect to
or in exchange for such Common Stock, or (z) any Fundamental Change (including
any event referred to in the foregoing clauses (w), (x), or (y) that constitutes
a Fundamental Change), then appropriate provision shall be made so that the
holder of each share of Series _ Preferred Stock then outstanding shall have the
right to convert such share into the kind and amount of the shares of stock and
other securities or property or assets (including cash) that would have been
receivable upon such reclassification, change, consolidation, merger,
combination, sale, conveyance, or Fundamental Change by a holder of the number
of shares of Common Stock issuable upon conversion of such share of Series _
Preferred Stock immediately prior to such reclassification, change,
consolidation, merger, combination, sale, conveyance, or Fundamental Change;
provided, however, that, if the event referred to in clauses (w) through (z)
above constitutes a Non-Stock Fundamental Change, each holder of Series _
Preferred Stock shall be entitled, upon conversion thereof, to receive such
amount of shares of stock, other securities, or property or assets (including
cash) as is determined by the number of shares of Common Stock receivable upon
conversion at the Conversion Price as adjusted in accordance with clause (i) of
the following paragraph of this subsection (h); and provided, further, that, if
the event referred to in clauses (w) through (z) above constitutes a Common
Stock Fundamental Change, the foregoing provisions of this subsection (h) shall
not apply, but each holder of Series _ Preferred Stock shall be entitled, upon
conversion thereof at any time following such Common Stock Fundamental Change,
to receive such number of shares of common stock of the successor or acquiring
entity as is determined by use of the Conversion Price as adjusted in accordance
with clause (ii) of the following paragraph of this subsection (h). The
adjustments described in this subsection (h) shall be subject to further
adjustments as appropriate that shall be as nearly equivalent as may be
practicable to the relevant adjustments provided for in this Section 4. If, in
the case of any such consolidation, merger, combination, sale, conveyance, or
Fundamental Change, the stock or other securities and property receivable
thereupon by a holder of shares of Common Stock include shares of stock,
securities, or other property or assets (including cash) of an entity other than
the successor or acquiring entity, as the case may be, in such consolidation,
merger, combination, sale, conveyance, or Fundamental Change, then the
Corporation shall enter into an agreement with such other entity for the benefit
of the holders of Series _ Preferred Stock that shall contain such provisions to
protect the interests of such holders as the Board shall reasonably consider
necessary by reason of the foregoing.
16
<PAGE>
For purposes of calculating any adjustment to be made in connection
with the occurrence of a Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the Conversion Price
shall be deemed to be the lower of (1) the Conversion Price in effect
immediately prior to such Non-Stock Fundamental Change and (2) the product of
(a) the greater of the Applicable Price and the Reference Market Price and (b) a
fraction, the numerator of which is $______ and the denominator of which is the
amount at which one share of Series _ Preferred Stock would be redeemed by the
Corporation if the redemption date were the date of such Non-Stock Fundamental
Change (such denominator being the sum of (x) the product of the percentage
(expressed as a decimal) set forth in the table in Section 3 above or, for the
period commencing ___________________, ____, and ending ________________, ____,
the 12-month period commencing ___________________, ____, the 12-month period
commencing ___________________, ____, and the 12-month period commencing
___________________, ____, ____%, ____%, ____%, and ____%, respectively, and
$______, and (y) any [then-declared] [then-accrued and then-accumulated] and
unpaid dividends on the Series _ Preferred Stock); provided, however, that if
there were [then-declared] [accrued or accumulated] and unpaid dividends with
respect to the Series _ Preferred Stock at the time of such Non-Stock
Fundamental Change ("Passed Dividends") and if, thereafter, all (or any portion)
of such Passed Dividends are paid by the Corporation, then the Conversion Price
to be used in determining the amount of consideration to which holders of Series
_ Preferred Stock who have not converted their shares of Series _ Preferred
Stock shall be entitled upon conversion thereof shall be deemed to be the
Conversion Price that would have been used in making such determination if all
(or such portion) of such Passed Dividends had not been [accrued or accumulated
and] [declared but] unpaid at such time; and
(ii) in the case of a Common Stock Fundamental Change, the Conversion
Price of the shares of Series _ Preferred Stock immediately following such
Common Stock Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change multiplied by a
fraction, the numerator of which is the Purchaser Stock Price and the
denominator of which is the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% by value of the
consideration received by a holder of Common Stock is common stock of the
successor, acquiror, or other third party (and cash, if any, is paid with
respect to any fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all of the Common Stock of the Company
shall have been exchanged for, converted into, or acquired for [common stock of
the successor, acquiror, or other third party], the Conversion Price of the
shares of Series _ Preferred Stock immediately following such Common Stock
Fundamental Change shall be the Conversion Price in effect immediately prior to
such Common Stock Fundamental Change multiplied by a fraction, the numerator of
which is one (1) and the denominator of which is the number of shares of common
stock of the successor, acquiror, or other third party received by a holder of
one share of Common Stock as a result of such Common Stock Fundamental Change.]
17
<PAGE>
[6. Exchange. (a) The Corporation may at its option exchange all, but
not less than all, of the then outstanding shares of Series __ Preferred Stock
into the Corporation's ________________________ (the "Exchange Debentures") on
any dividend payment date, provided that (i) on the date of such exchange such
exchange is permitted by the terms of the Indenture dated as of
______________________ (the "Indenture") between the Corporation and
______________________________, as trustee (the "Trustee"), (ii) either (x) a
registration statement relating to the Exchange Debentures shall have been
declared effective under the Securities Act of 1933, as amended (the "Securities
Act") prior to such exchange and shall continue to be in effect on the Exchange
Date (as defined below) or (y) (1) the Corporation shall have obtained (and
delivered to the Trustee) a written opinion of counsel reasonably acceptable to
the Trustee that an exemption from the registration requirements of the
Securities Act is available for such exchange and that upon receipt of such
Exchange Debentures pursuant to such exchange made in accordance with such
exemption, each holder of Exchange Debentures that is not an Affiliate (as
defined under the Securities Act) of the Corporation will not be subject to any
restrictions imposed by the Securities Act upon the resale thereof and (2) such
exemption is relied upon by the Corporation for such exchange; and (iv) the
Corporation shall have delivered to the Trustee a written opinion of counsel
reasonably acceptable to the Trustee, dated the Exchange Date, subject to
customary exceptions and qualifications, regarding the satisfaction of the
conditions set forth in clauses (i) and (ii) and including language
substantially to the effect set forth in Section 6(b) hereof, provided that in
rendering such opinion such counsel may rely, as to matters of fact, on an
Officers' Certificate (as defined under the Indenture). In the event that the
issuance of the Exchange Debentures is not permitted on the date of exchange or
any of the conditions set forth in clauses (i) through (iv) of the preceding
sentence are not satisfied on the Exchange Date, the Corporation shall use its
reasonable best efforts to satisfy such conditions and effect such exchange as
soon as practicable.
(b) The opinion of counsel referenced in Section 6(a)(iv) hereof shall
include language substantially to the following effect:
(i) The Exchange Debentures have been duly authorized by the
Corporation and, when executed, authenticated and delivered in
accordance with the provisions of the Indenture, will be valid and
binding obligations of the Corporation, enforceable against the
Corporation, in accordance with their terms, except as the same may be
limited by (A) applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally,
including without limitation the effect of statutory or other laws
regarding fraudulent conveyances or transfers, preferential transfers
or distributions by corporations to stockholders, or (B) general
principles of equity, whether considered at law or at equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing.
(ii) The Indenture has been duly authorized, executed and
delivered by the Corporation, and is a valid and binding agreement of
the Corporation, enforceable against the Corporation in accordance with
its terms, except as the same may be limited by (A) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally, including without limitation the
effect of statutory or other laws regarding fraudulent conveyances or
transfers, preferential transfers or
18
<PAGE>
distributions by corporations to stockholders, or (B) general
principles of equity, whether considered at law or at equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing.
(c) To exchange the Series __ Preferred Stock for Exchange Debentures,
the Corporation shall send a written notice (the "Exchange Notice") of exchange
by mail to each holder of shares of Series __ Preferred Stock, which notice
shall state (i) that the Corporation is exercising its option to exchange the
Series __ Preferred Stock for Exchange Debentures pursuant to this Certificate
of Designation, (ii) the date fixed for exchange (the "Exchange Date"), which
date shall not be less than 30 days nor more than 60 days following the date on
which the Exchange Notice is mailed, (iii) that the holder is to surrender to
the Corporation, at the place or places where certificates for shares of Series
__ Preferred Stock are to be surrendered for exchange, in the manner designated
in the Exchange Notice, the certificate or certificates representing the shares
of Series __ Preferred Stock to be exchanged (duly endorsed or assigned for
transfer); (iv) [that dividends on the shares of Series __ Preferred Stock to be
exchanged shall cease to accrue on the Exchange Date, and] that holders of
Series __ Preferred Stock shall cease to have any further rights with respect to
such shares (other than the right to receive Exchange Debentures), whether or
not certificates for shares of Series __ Preferred Stock are surrendered for
exchange on the Exchange Date unless the Corporation shall default in the
delivery of Exchange Debentures; and (v) that interest on the Exchange
Debentures shall accrue from the Exchange Date whether or not certificates for
shares of Series __ Preferred Stock are surrendered for exchange on the Exchange
Date; provided, however, that no failure to give such notice nor any deficiency
therein shall affect the validity of the procedure for the exchange of any
shares of Series __ Preferred Stock to be exchanged except as to the holder or
holders to whom the Corporation has failed to give said notice or except as to
the holder or holders whose notice was defective. On the Exchange Date, if the
conditions set forth in Section 6(a)(i) through 6(a)(iv) are satisfied, the
Corporation shall issue Exchange Debentures in exchange for the Series __
Preferred Stock as provided in Section 6(d).
(d) On the Exchange Date, holders of outstanding shares of Series __
Preferred Stock will be entitled to receive a principal amount of Exchange
Debentures equal to the liquidation preference per share, plus an amount in cash
equal to all [accumulated] [declared] and unpaid dividends [(including an amount
equal to a prorated dividend for the period from the dividend payment date
immediately prior to the Exchange Date to the Exchange Date)]. The Exchange
Debentures will be issued in registered form, without coupons. Exchange
Debentures issued in exchange for Series __ Preferred Stock will be issued in
principal amounts of $1,000 and integral multiples thereof to the extent
possible, and will also be issued in principal amounts less than $1,000 so that
each holder of Series __ Preferred Stock will receive certificates representing
the entire amount of Exchange Debentures to which his or her shares of Series __
Preferred Stock entitle him or her, provided that the Corporation may, at its
option, pay cash in lieu of issuing an Exchange Debenture in a principal amount
less than $1,000. On and after the Exchange Date, [dividends will cease to
accumulate on the outstanding shares of Series __ Preferred Stock, and] all
rights of the holders of Series __ Preferred Stock (except the right to receive
the Exchange Debentures, an amount in cash equal to the [accumulated] [declared]
and unpaid dividends to the Exchange Date and if the Corporation so elects, cash
in lieu of any Exchange Debenture that is in an amount that is not an integral
multiple of $1,000) will
19
<PAGE>
terminate. The person entitled to receive the Exchange Debentures issuable upon
such exchange will be treated for any purposes as the registered holder of such
Exchange Debentures.
(e) On or before the Exchange Date, each Holder of Series __ Preferred
Stock shall surrender the certificate or certificates representing such shares
of Series __ Preferred Stock, in the manner and at the place designated in the
Exchange Notice. The Corporation shall cause the Exchange Debentures to be
executed on the Exchange Date and, upon surrender in accordance with the
Exchange Notice of the certificates for any shares of Series __ Preferred Stock
so exchanged (duly endorsed or assigned for transfer), such shares shall be
exchanged by the Corporation into Exchange Debentures. The Corporation shall pay
interest on the Exchange Debentures at the rate and on the dates specified
therein from the Exchange Date. Subject to the satisfaction of the conditions
set forth in clauses (i) through (iv) of Section 6(a), if notice has been mailed
as aforesaid, and if before the Exchange Date (i) the Indenture shall have been
duly executed and delivered by the Corporation and the Trustee and (ii) all
Exchange Debentures necessary for such exchange shall have been duly executed by
the Corporation and delivered to the Trustee with irrevocable instructions to
authenticate the Exchange Debentures necessary for such exchange, then the
rights of the holders of shares of the Series __ Preferred Stock as stockholders
of the Corporation shall cease (except the right to receive Exchange
Debentures), and the person or persons entitled to receive the Exchange
Debentures issuable upon exchange shall be treated for all purposes as the
registered holder or holders of such Exchange Debentures as of the date of
exchange without any further action of the holders of Series __ Preferred
Stock.]
7. Liquidation Rights. (a) Upon the dissolution, liquidation, or
winding up of the Corporation, the holders of the shares of Series _ 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 Series _ Preferred Stock upon liquidation, the amount of
$______ per share, plus a sum equal to all dividends [(whether or not earned or
declared)] on such shares [declared] [accrued] and unpaid thereon to the date of
final distribution.
(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 6.
(c) After the payment to the holders of the shares of Series _
Preferred Stock of the full preferential amounts provided for in this Section 6,
the holders of Series _ 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 Series _ 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 subsection (a) of this Section 6, no such
distribution shall be made on account of any shares of any other series of
preferred stock or
20
<PAGE>
other capital stock of the Corporation ranking on a parity with the shares of
Series _ Preferred Stock upon such dissolution, liquidation, or winding up
unless proportionate distributive amounts shall be paid on account of the shares
of Series _ 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
Series _ 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 Series _ Preferred Stock
as provided in this Section 6, but not prior thereto, any other series or class
or classes of stock ranking junior to the shares of Series _ 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 Series _ Preferred Stock shall
not be entitled to share therein.
8. 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 Series _ 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 Series _ Preferred Stock;
(b) on a parity with shares of Series _ 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 Series _ 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 Series _
Preferred Stock; and
(c) junior to shares of Series _ Preferred Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of Series _ 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 Series Preferred Stock. The shares of Series _ Preferred
Stock will rank on a parity, both as to payment of dividends and the
distribution of assets upon liquidation, with the Corporation's [Cumulative
Tracking Preferred Stock, 1995 ESOP Cumulative Convertible Preferred Stock, 1996
ESOP Cumulative Convertible Preferred Stock, 1997 ESOP Cumulative Convertible
Preferred Stock, 1998 ESOP Cumulative Convertible
21
<PAGE>
Preferred Stock, 1999 ESOP Cumulative Convertible Preferred Stock, Adjustable
Rate, Cumulative Convertible Preferred Stock, Series B and Fixed/Adjustable Rate
Noncumulative Preferred Stock, Series H]. The Series _ 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 C Junior
Participating Preferred Stock]."
22
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations to be signed by ____________________, its ____________________, and
attested by ____________________, its ____________________, whereby such
______________ 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 ____ day of __________, ____.
WELLS FARGO & COMPANY
By______________________________________
[Name and Office]
Attest:
______________________________________
[Name and Office]
23
<PAGE>
THIS CERTIFICATE IS TRANSFERABLE IN MINNEAPOLIS, MINNESOTA
SEE REVERSE FOR CERTAIN DEFINITIONS
EXHIBIT 4(w)
WELLS FARGO & COMPANY [CUMULATIVE] [NONCUMULATIVE]
[PREFERRED] [PREFERENCE] STOCK, SERIES ___
NUMBER SHARES
SPECIMEN SPECIMEN
WELLS FARGO & COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT SPECIMEN
-----------------------------------------
IS THE OWNER OF SPECIMEN
-----------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES WITHOUT PAR VALUE (STATED VALUE $___ PER
SHARE) OF [CUMULATIVE] [NONCUMULATIVE] [PREFERRED] [PREFERENCE] STOCK, SERIES
____, OF
Wells Fargo & Company, transferable on the books of the corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the corporation and the facsimile
signatures of its duly authorized officers.
Dated
COUNTERSIGNED AND REGISTERED: Chairman
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
TRANSFER AGENT AND REGISTRAR Secretary
BY
SEAL
AUTHORIZED SIGNATURE
<PAGE>
WELLS FARGO & COMPANY
WELLS FARGO & COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER
WHO SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF WHICH WELLS FARGO & COMPANY IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF WELLS FARGO & COMPANY OR
TO THE TRANSFER AGENT
---------------------
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian
-----------------------
(Cust) (Minor)
TEN ENT -as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -as joint tenants with right Act _______________________________
of survivorship and not as (State)
tenants in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________________
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
----------------------------------------------
Attorney
- ----------------------------------------------------------------------
to transfer the said Stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated:
------------------------- -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED BY:
<PAGE>
THIS CERTIFICATE IS TRANSFERABLE IN MINNEAPOLIS, MINNESOTA
SEE REVERSE FOR CERTAIN DEFINITIONS
EXHIBIT 4(x)
WELLS FARGO & COMPANY [CUMULATIVE] [NONCUMULATIVE]
CONVERTIBLE [PREFERRED] [PREFERENCE] STOCK, SERIES ___
NUMBER SHARES
SPECIMEN SPECIMEN
WELLS FARGO & COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT SPECIMEN
---------------------------------------------
IS THE OWNER OF SPECIMEN
---------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES WITHOUT PAR VALUE (STATED VALUE $___ PER
SHARE) OF [CUMULATIVE] [NONCUMULATIVE] CONVERTIBLE [PREFERRED] [PREFERENCE]
STOCK, SERIES ____, OF
Wells Fargo & Company, transferable on the books of the corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the corporation and the facsimile
signatures of its duly authorized officers.
Dated
COUNTERSIGNED AND REGISTERED: Chairman
Norwest Bank Minnesota,
National Association
TRANSFER AGENT AND REGISTRAR Secretary
BY
SEAL
AUTHORIZED SIGNATURE
<PAGE>
WELLS FARGO & COMPANY
WELLS FARGO & COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER
WHO SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF WHICH WELLS FARGO & COMPANY IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF WELLS FARGO & COMPANY OR
TO THE TRANSFER AGENT
---------------------
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian
-----------------------
(Cust) (Minor)
TEN ENT -as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -as joint tenants with right Act _______________________________
of survivorship and not as (State)
tenants in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________________
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
----------------------------------------------
Attorney
- ----------------------------------------------------------------------
to transfer the said Stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated:
------------------------- -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED BY:
<PAGE>
EXHIBIT 4(y)
WELLS FARGO & COMPANY,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
-------------------------
DEPOSIT AGREEMENT
-------------------------
DATED AS OF ___________, ____
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES...................................................................1
RECITALS..................................................................1
ARTICLE I
Definitions
Certificate...............................................................1
Company...................................................................1
Deposit Agreement.........................................................1
Depositary................................................................1
Depositary Shares.........................................................1
Depositary's Agent........................................................2
Depositary's Office.......................................................2
Receipt...................................................................2
Record Holder.............................................................2
Registrar.................................................................2
Stock.....................................................................2
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts..............................2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof................................3
SECTION 2.03. Redemption of Stock........................................4
SECTION 2.04. Registration of Transfer of Receipts.......................5
SECTION 2.05. Split-ups and Combinations of Receipts;
Withdrawal of Stock........................................6
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts...............6
<PAGE>
SECTION 2.07. Lost Receipts, etc.........................................7
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts...................................................7
[SECTION 2.09. Conversion of Stock into Common Stock......................7]
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information..........8
SECTION 3.02. Payment of Taxes or Other Governmental Charges.............8
SECTION 3.03. Warranty as to Stock.......................................8
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions.........................................9
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or Privileges..............................................9
SECTION 4.03. Subscription Rights, Preferences or Privileges.............9
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts.......................................11
SECTION 4.05. Voting Rights.............................................11
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. ...............11
SECTION 4.07. Inspection of Reports.....................................12
SECTION 4.08. Lists of Receipt Holders..................................12
ii
<PAGE>
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar........................12
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company.....13
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company.............................14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary...................................14
SECTION 5.05. Corporate Notices and Reports.............................15
SECTION 5.06. Indemnification by the Company............................15
SECTION 5.07. Charges and Expenses......................................16
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment.................................................16
SECTION 6.02. Termination...............................................16
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts..............................................17
SECTION 7.02. Exclusive Benefit of Parties..............................17
SECTION 7.03. Invalidity of Provisions..................................17
SECTION 7.04. Notices...................................................17
SECTION 7.05. Depositary's Agents.......................................18
iii
<PAGE>
SECTION 7.06. Holders of Receipts Are Parties...........................18
SECTION 7.07. Governing Law.............................................18
SECTION 7.08. Inspection of Deposit Agreement...........................18
SECTION 7.09. Headings..................................................18
TESTIMONIUM..............................................................19
SIGNATURES...............................................................19
EXHIBIT A: Form of Depositary Receipt
iv
<PAGE>
DEPOSIT AGREEMENT dated as of
___________, ____, among WELLS FARGO & COMPANY,
a Delaware corporation, NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, and the
holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of [Cumulative] [Noncumulative]
[Convertible] [Preferred] [Preference] Stock, Series ___, without par value, of
WELLS FARGO & COMPANY with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Delaware establishing the Stock as a series of [preferred]
[preference] stock of the Company.
"Company" shall mean Wells Fargo & Company, a Delaware corporation, and its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Norwest Bank Minnesota, National Association, and
any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing [one
quarter] of a share of Stock and evidenced by a Receipt.
<PAGE>
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary in South St.
Paul, Minnesota, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose name
a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's [Cumulative] [Noncumulative]
[Convertible] [Preferred] [Preference] Stock, Series ___, without par value
(stated value $_____ per share).
ARTICLE II
Form of Receipts; Deposit of Stock;
Execution and Delivery; Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at an office
described in the last paragraph of Section 2.02, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
2
<PAGE>
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary Shares
up to but not in excess of 400,000 Depositary Shares for any particular Receipt.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may from time to time deposit shares of the
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written order of
the Company or such holder, as the case may be, directing the Depositary to
execute and deliver to, or upon the written order of,
3
<PAGE>
the person or persons stated in such order a Receipt or Receipts for the number
of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts for the number of Depositary Shares
representing the Stock so deposited and registered in such name or names as may
be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than _________ shares
of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, if
the Certificate provides for such redemption, it shall (unless otherwise agreed
in writing with the Depositary) give the Depositary not less than 40 nor more
than 70 days' notice of the date of such proposed redemption of Stock, which
notice shall be accompanied by a certificate from the Company stating that such
redemption of Stock is in accordance with the provisions of the Certificate.
[**Such notice, if given more than 50 days prior to the redemption date, shall
be in addition to the notice required to be given for redemption pursuant to the
Certificate.] On the date of such redemption, provided that the Company shall
then have paid in full to the Depositary the redemption price of the Stock to be
redeemed, plus any accrued and unpaid dividends thereon, the Depositary shall
redeem the number of Depositary Shares representing such Stock. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption of
the number of Depositary Shares representing the Stock to be redeemed,
first-class postage prepaid, not less than 30 and not more than 60 days prior to
the date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
4
<PAGE>
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accumulate on such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be selected on a pro rata basis as determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the shares of Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares cease and terminate and, upon surrender in accordance with such notice of
the Receipts evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary at a redemption price per Depositary
Share equal to [one quarter] of the redemption price per share paid in respect
of the shares of Stock plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office or at such
other offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
5
<PAGE>
Any holder of a Receipt or Receipts shall not have the right to withdraw
any shares of Stock or any money or other property represented by such Receipt
or Receipts.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed, or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof,
and (ii) the furnishing of the Depositary with an indemnity bond satisfactory to
it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[SECTION 2.09. Conversion of Stock into Common Stock. It is understood and
agreed that the Depositary Shares are not convertible into the Common Stock, par
value $1 2/3 per share, of the Company (the "Common Stock") or any other
securities or property of the Company. Nevertheless, as a matter of convenience,
the Company hereby agrees to accept (or to cause its conversion agent to accept)
the delivery of Receipts for the purpose of effecting conversions of the Stock
utilizing the same procedures as those provided for delivery of Stock
certificates to effect such conversions in accordance with the terms and
conditions of the Certificate; provided, however, that only whole Depositary
Shares may be so submitted for
6
<PAGE>
conversion. If fewer than all of the Depositary Shares evidenced by a Receipt
are to be converted, the Company shall instruct the Depositary to issue a new
Receipt or Receipts for the Depositary Shares not to be converted. For this
purpose, a holder of a Receipt or Receipts may surrender such Receipt or
Receipts to the Company at the Depositary's Office or at such other office as
the Company may from time to time designate for such purpose, together with a
duly completed and executed Notice of Conversion in the form included in the
Receipt. In all cases, the foregoing shall be conditioned upon compliance in
full by the holder of such Receipt or Receipts with the terms and conditions of
the Certificate and of this Deposit Agreement. The Company shall instruct the
Depositary to cancel each Receipt surrendered for such conversion and to deliver
to the Company any certificates for related Stock so converted, and the Company
will cancel such Stock certificates.]
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer, redemption or exchange, of
any Receipt or the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of Receipts.
7
<PAGE>
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on Stock, the Depositary shall, subject
to Sections 3.01 and 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such dividend or
distribution as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash distribution
in respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Receipts
then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the case
of a distribution received in cash. The Company shall not make any distribution
of such securities unless the Company shall have provided an opinion of counsel
stating that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or
8
<PAGE>
to purchase any securities or any rights, preferences or privileges of any other
nature, such rights, preferences or privileges shall in each such instance be
made available by the Depositary to the record holders of Receipts in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or by
such other method as may be approved by the Depositary in its discretion with
the approval of the Company; provided, however, that (i) if at the time of issue
or offer of any such rights, preferences or privileges the Depositary determines
that it is not lawful or (after consultation with the Company) not feasible to
make such rights, preferences or privileges available to holders of Receipts by
the issue of warrants or otherwise, or (ii) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of any such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel stating
that such rights, preferences or privileges have been registered under the
Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
9
<PAGE>
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or who shall be entitled to
notice of such meeting or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting,
and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received. The Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of an interest represented by one Depositary Share in one share of
Stock, and (y) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such changes in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization,
10
<PAGE>
merger, amalgamation or consolidation, and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of Receipts
shall have the right from and after the effective date of any such change in par
or stated value, split-up, combination or other reclassification of the Stock or
any such recapitalization, reorganization, merger, amalgamation or consolidation
to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts might have
been converted or for which such Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make available
for inspection by holders of Receipts at the Depositary's Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Receipts are registered on the books of the Depositary.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
11
<PAGE>
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on the New York Stock Exchange, the
Depositary will appoint a Registrar (acceptable to the Company) for registration
of such Receipts or Depositary Shares in accordance with any requirements of
such Exchange. Such Registrar (which may be the Depositary if so permitted by
the requirements of such Exchange) may be removed and a substituted registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such Stock are listed on one
or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Certificate of Incorporation, as amended
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from, or subjected to any penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than for its
negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its
12
<PAGE>
opinion may involve it in expense or liability unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, any Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents and any
Registrar may own and deal in any class of securities of the Company and its
affiliates and Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the
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<PAGE>
rights, powers, duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the Company, shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor Depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will transmit to the record holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Restated Certificate of Incorporation,
as amended (including the Certificate) to be furnished by the Company to holders
of Stock. Such transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Receipts (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence or bad
faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Stock pursuant to the provisions hereof. The obligations of the
Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares and redemption of the Stock at the option of the Company. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their
14
<PAGE>
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges and
expenses to the Company once each month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent (as
hereinafter defined), which shall go into effect not sooner than three months
after notice thereof to the holders of the Receipts) which shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. Every holder of an outstanding Receipt
at the time any such amendment becomes effective shall be deemed, by continuing
to hold such Receipt, to consent and agree to such amendment and to be bound by
this Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the Company
or the Depositary only after (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.03, or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and
15
<PAGE>
shall not be deemed to give any legal or equitable right, remedy or claim to any
other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to the Company at Wells Fargo & Company, 420
Montgomery Street, San Francisco, California 94163, to the attention of the
Secretary, or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 161 North
Concord Exchange, Stock Transfer Department, South St. Paul, Minnesota 55075, or
at any other address of which the Depositary shall have notified the Company in
writing.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex confirmed
by letter, addressed to such record holder at the address of such record holder
as it appears on the books of the Depositary, or if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex message received by it from the other or
from any holder of a Receipt, notwithstanding that such telegram or telex
message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
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<PAGE>
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be parties to this Deposit Agreement and shall be bound by
all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
17
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
WELLS FARGO & COMPANY
Attested by By______________________________________
Its___________________________________
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Depositary
Attested by By______________________________________
Its___________________________________
18
<PAGE>
EXHIBIT A
NUMBER DEPOSITARY SHARES
- ---------- -----------------
DR CERTIFICATE FOR NOT MORE THAN
_______ DEPOSITARY SHARES
- ---------- -----------------
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [CUMULATIVE] [NONCUMULATIVE] [CONVERTIBLE]
[PREFERRED] [PREFERENCE] STOCK, SERIES __, OF
WELLS FARGO & COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, (THE "DEPOSITARY"), HEREBY
CERTIFIES THAT
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [one quarter (1/4)] of
one share of [Cumulative] [Noncumulative] [Convertible] [Preferred] [Preference]
Stock, Series ___, no par value, of Wells Fargo & Company, a Delaware
corporation (the "Corporation"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of
, , (the "Deposit Agreement") between the Corporation and
the Depositary. By accepting this Depositary Receipt the holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Depositary Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement unless it shall
have been executed by the Depositary by the manual signature of a duly
authorized officer and shall have been countersigned manually by a Registrar or
by the Depositary as Registrar in respect of the Depositary Receipts by the
manual signature of a duly authorized officer thereof.
Dated:
COUNTERSIGNED AND
REGISTERED:
- ----------------------,
- --------------------
DEPOSITARY AND REGISTRAR
By
Authorized Officer [SEAL]
<PAGE>
WELLS FARGO & COMPANY
WELLS FARGO & COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO
SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES
THEREOF WHICH WELLS FARGO & COMPANY IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF WELLS FARGO & COMPANY OR
TO THE TRANSFER AGENT
---------------------
The following abbreviations, when used in the inscription on the face of this
Receipt, shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
For value received, _____________________________________________ hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
__________________________________________________
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
______________________________________________________________ Depositary Shares
represented by the within Receipt, and do hereby irrevocably constitute and
appoint ________________________________________________________________________
_______________________________________________________________________ Attorney
to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated:___________________________ _________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of this Receipt in every particular, without alteration or
enlargement or any change whatever.
<PAGE>
EXHIBIT 4(z)
WELLS FARGO & COMPANY
Form of Debt Warrant Agreement
THIS WARRANT AGREEMENT dated as of ____________, ____ between Wells Fargo &
Company, a Delaware corporation (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
and ___________ as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "[Senior]
[Subordinated] Indenture") dated as of [____________, ____ between the Company
and _____________, as trustee (the "[Senior] [Subordinated] Trustee")],
providing for the issuance from time to time of its unsecured [senior]
[subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Subordinated] Debt Securities"), to be issued in one or more series
as provided in the [Senior] [Subordinated] Indenture; [if Warrant Securities are
not under same Indenture as Debt Securities to which they are attached -- and an
Indenture (the "[Senior] [Subordinated] Indenture", the [Senior] and
[Subordinated] Indentures being referred to collectively as the "Indentures")
dated as of _____________, ____ between the Company and ___________________, as
trustee (the "[Senior] [Subordinated] Trustee", the [Senior] and [Subordinated]
Trustees being referred to collectively as the "Trustees"), providing for the
issuance from time to time of its [senior] [subordinated] debentures, notes or
other evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities",
the [Senior] and [Subordinated] Debt Securities being referred to collectively
as the "Debt Securities"), to be issued in one or more series as provided in the
[Senior] [Subordinated] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
Securities or Preferred Stock -- [title of Debt Securities or Preferred Stock
being offered] (the "Offered Securities") with] warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
<PAGE>
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. Issuance of Warrants. [If Warrants alone -- Upon issuance,
each Warrant Certificate shall evidence one or more Warrants.] [If Offered
Securities and Warrants -- Warrants shall be [initially] issued in connection
with the issuance of the Offered Securities [but shall be separately
transferable on and after _____________ (the "Detachable Date")] [and shall not
be separately transferable] and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of __________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence Warrants for each [________ principal amount] [_________ shares] of
Offered Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in [registered] [bearer] form
substantially in the form set forth in Exhibit A hereto, shall be dated
______________ and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by the Chairman of the Board, the President
or a Vice President of the Company and by the Treasurer or one of the Assistant
Treasurers or the Secretary or one of the Assistant Secretaries of the Company
under its corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual or facsimile signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any
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Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein shall
mean [the bearer of such Warrant Certificate] [any person in whose name any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose] [If Offered Securities and Warrants are not
immediately detachable -- or [the bearer] [upon the register] of the Offered
Securities prior to the Detachable Date. [Prior to the Detachable Date, the
Company will, or will cause the registrar of the Offered Securities to, make
available at all times to the Warrant Agent such information as to holders of
the Offered Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date]].
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase up to ______ aggregate principal amount of
Warrant Securities (except as provided in Sections 2.03(c), 3.02 and 4.01) may
be executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to ________ principal amount of Warrant Securities and
shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.03(c).
SECTION 1.04. Temporary Warrant Certificates. Pending the preparation of
definitive Warrant Certificates, the Company may execute, and upon the order of
the Company, the Warrant Agent shall authenticate and deliver, temporary Warrant
Certificates which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ____________], without charge to the holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
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<PAGE>
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
SECTION 2.01. Warrant Price. During the period from _____________, through
and including ______________, the exercise price of each Warrant will be _______
plus [accrued amortization of the original issue discount] [accrued interest]
from _______________. During the period from ______________, through and
including ________________, the exercise price of each Warrant will be _________
plus [accrued amortization of the original issue discount] [accrued interest]
from _______________. [In each case, the original issue discount will be
amortized at a ____% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months].
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant Price". [The original issue discount for each _______ principal
amount of Warrant Securities is _______.]
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in whole
at any time, as specified herein, on or after [the date thereof] [____________]
and at or before 5 P.M., New York City time, on _________ [or such later date as
the Company may designate, by notice to the Warrant Agent and the holders of
Warrant Certificates mailed to their addresses as set forth in the record books
of the Warrant Agent] (the "Expiration Date"). Each Warrant not exercised at or
before 5 P.M., New York City time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant
under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificate and by
paying in full, in [lawful money of the United States of America] [applicable
currency,] [in cash or by certified check or official bank check or by, in each
case,] [by bank wire transfer] in immediately available funds the Warrant Price
for each Warrant exercised, to the Warrant Agent at its corporate trust office
[or at ___________], provided that such exercise is subject to receipt within
five business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed [including any applicable certifications if the Warrant Securities are
issuable in bearer form]. The date on which payment in full of the Warrant Price
is received by the Warrant Agent shall, subject to receipt of the Warrant
Certificates as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it [if
non-dollar denominated funds -- or in such other account designated by the
Company] and shall advise the Company by telephone at the end of each day on
which a [payment] [wire transfer] for the exercise of Warrants is received of
the amount so
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<PAGE>
deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company [and the Trustee under the Indenture relating to the Warrant
Securities] of (i) the number of Warrants exercised, (ii) the instructions of
each holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the Warrant Securities to which such holder is entitled upon such
exercise, (iii) delivery of Warrant Certificates evidencing the balance, if any,
of the Warrants remaining after such exercise, and (iv) such other information
as the Company or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in [fully
registered form, registered in such name or names as may be directed by such
holder] [bearer form, provided the holder has furnished to the Warrant Agent all
certifications required by applicable U.S. Treasury regulations for the delivery
of bearer securities and only if the Company has no reason to know that the
certification(s) is false]. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised. [Unless otherwise instructed by the Company, Warrant Securities in
bearer form shall be delivered to or upon the order of the holder of such
Warrant Certificate only outside the United States and its possessions.]
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the [Indenture relating to the Warrant Securities].
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<PAGE>
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant Certificate and or indemnity reasonably satisfactory to the
Warrant Agent and the Company and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice to
the Company or the Warrant Agent that such Warrant Certificate has been acquired
by a bona fide purchaser, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the mutilated, lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or Lease. If at
any time there shall be a merger, consolidation, conveyance, transfer or lease
of assets subject to Section 801 of the [Indenture relating to the Warrant
Securities], then in any such event the successor or assuming corporation
referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to such Indenture, as if it had been named herein and
in the Warrant as the Company; the Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Warrants issuable hereunder which theretofore shall
not have been signed by the Company, and may execute and deliver Warrant
Securities in its own name pursuant to such Indenture, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been
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issued at the date of the execution hereof. In any case of any such
consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer or
lease complies with the provisions of this Section 3.04 and such Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.01. Exchange and Transfer of Warrant Certificates. [If Offered
Securities with Warrants which are immediately detachable -- Upon] [If Offered
Securities with Warrants which are not immediately detachable -- Prior to the
Detachable Date a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable date upon] surrender at the corporate trust office of the
Warrant Agent [or _______________], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [The Warrant Agent shall
keep, at its corporate trust office [and at ________________], books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or _______________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall be
made for any exchange [or registration of transfer] of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange [or registration of transfer]. Whenever any Warrant Certificates are so
surrendered for exchange [or registration of transfer], an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange [or registration of transfer] which will
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange [or registration of transfer] of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this
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Agreement, as the Warrant Certificate surrendered for such exchange [or
registration of transfer].
SECTION 4.02. Treatment of Holders of Warrant Certificates. [If Offered
Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date,] [if
registered Warrants -- and prior to due presentment of a Warrant Certificate for
registration of transfer,] the Company, the Warrant Agent and all other persons
may treat the holder of a Warrant Certificate as the owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange[, registration of transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. Warrant Agent. The Company hereby appoints _______________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
________________ hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services
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rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable
out-of-pocket expenses (including counsel fees) incurred without negligence, bad
faith or willful misconduct by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful misconduct on the part
of the Warrant Agent, arising out of or in connection with its acting as Warrant
Agent hereunder, as well as the reasonable costs and expenses of defending
against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it,
and the written advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its stockholders,
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or agent
for, any committee or body of Holders of Warrant Securities or other obligations
of the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in this Warrant Agreement shall be deemed to prevent the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity as
Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the Company,
the Warrant Agent shall have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no liability
with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant
Certificates
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(except as to the Warrant Agent's countersignature thereon), all of which are
made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to perform
only such duties as are herein and in the Warrant Certificates specifically set
forth and no implied duties or obligations shall be read into this Agreement or
the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend to involve
it in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of any of the Warrant Certificates or for the application by the Company
of the proceeds of the Warrant Certificates. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or
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shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have been entered in
respect of the Warrant Agent in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs, or any public
officer shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not materially adversely affect the interests of the holders of the
Warrant Certificates.
11
<PAGE>
The parties hereto may also modify or amend this Agreement and the terms of
the Warrant Certificates with the consent of the holders of not less than a
majority in number of the then outstanding unexercised Warrant Certificates
affected thereby; provided that no such modification or amendment that
accelerates the expiration date, increases the exercise price or reduces the
number of outstanding Warrant Certificates the consent of the holders of which
is required for any such modification or amendment, may be made without the
consent of each holder affected thereby.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to ____________________,
Attention: ________________ and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Wells Fargo &
Company, 420 Montgomery Street, San Francisco California, 94163, Attention:
Corporate Secretary (or such other address as shall be specified in writing by
the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and performance
of this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by, and construed in
accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
12
<PAGE>
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
13
<PAGE>
IN WITNESS WHEREOF Wells Fargo & Company and _________________ have caused
this Agreement to be signed by their respective duly authorized officers, and
their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
WELLS FARGO & COMPANY
By _____________________________________
Title:
Attest:
________________________________
Title:
[Warrant Agent]
By _____________________________________
Title:
Attest:
________________________________
Title:
14
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to ___________________ this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants Prior to _______________, Warrants
are not immediately evidenced by this Warrant
exercisable. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
WELLS FARGO & COMPANY
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON __________
No. ______ ______ Warrants
This certifies that [the bearer is the] [_______________ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the [bearer] [registered owner]
qualifying as a "holder" of this Warrant Certificate, as hereinafter defined] to
purchase, at any time [after 5 P.M., New York City time, on ___________ and] on
or before 5 P.M., New York City time, on _____________, _____ principal amount
of [Title of Warrant Securities] (the "Warrant Securities"), of Wells Fargo &
Company (the "Company"), issued and to be issued under the Indenture (as
hereinafter defined), on the following basis: during the period from
_____________, through and including _____________ the exercise price of each
Warrant will be _________ plus [accrued amortization of the original issue
discount] [accrued interest] from _______________; during the period from
_____________, through and including _____________, the exercise price of each
Warrant will be plus [accrued amortization of the original issue discount]
[accrued interest] from _____________; [in each case, the original issue
discount will be amortized at a ____% annual rate, computed on an annual basis
using the "interest" method and using a 360-day year consisting of twelve 30-day
months] (the "Warrant Price"). [The original issue discount for each _________
principal amount of Warrant Securities is _____________.] The holder may
exercise the Warrants evidenced hereby by providing
<PAGE>
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full [in lawful money of the United States of America] [applicable
currency] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available funds,
the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the "Warrant
Agent"), [or _____________], which is, on the date hereof, at the address on the
reverse hereof, and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities with
Warrants which are not immediately detachable -- , prior to _____________ (the
"Detachable Date"), the [bearer] [registered owner] of the Company's [title of
Offered Securities] to which this Warrant Certificate is initially attached, and
after such Detachable Date,] [the bearer of this Warrant Certificate] [the
person in whose name at the time this Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that purpose pursuant
to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form in denominations of
_____ and any integral multiples thereof. Upon any exercise of fewer than all of
the Warrants evidenced by this Warrant Certificate, there shall be issued to the
holder hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of _____________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _____________].
The Warrant Securities to be issued and delivered upon the exercise of the
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture (the "[Senior] [Subordinated] Indenture"), dated as
of _____________, _____ between the Company and _____________, as trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are on
file at the corporate trust office of the Trustee [and at _____________].
[If Offered Securities with Warrants which are not immediately detachable
- -- Prior to _____________, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, transfer of this] [if Offered Securities
with Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be
A-2
<PAGE>
registered when this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or _____________] by the registered owner or his
assigns, in person or by an attorney duly authorized in writing, in the manner
and subject to the limitations provided in the Warrant Agreement.] [effected by
delivery and the Company and the Warrant Agent may treat the bearer hereof as
the owner for all purposes.]
[If Offered Securities with Warrants which are not immediately detachable
- -- Except as provided in the immediately preceding paragraph, after] [If Offered
Securities with Warrants which are immediately detachable or Warrants alone --
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or _____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of principal of, premium, if any, or interest, if any,
on the Warrant Securities or to enforce any of the covenants of the Indenture.
A-3
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
Dated as of _____________.
WELLS FARGO & COMPANY
By ____________________________________
Authorized Officer
Attest:
_______________________________
Countersigned:
_______________________________
As Warrant Agent
By:____________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in [Dollars]
[applicable currency] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds the Warrant Price in full for Warrants exercised to [insert name
of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. _________________ [or _________________ ], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ________ Warrants,
evidenced by this Warrant Certificate, to purchase ________ principal amount of
the [Title of Warrant Securities] (the "Warrant Securities") of Wells Fargo &
Company and represents that he has tendered payment for such Warrant Securities
in [Dollars] [applicable currency] [in cash or by certified check or official
bank check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds to the order of Wells Fargo & Company, c/o [insert
name and address of Warrant Agent], in the amount of ________ in accordance with
the terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in [bearer] [fully registered] form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below. [However, unless otherwise
designated by the Company, Warrant Securities in bearer form shall be delivered
to or upon the order of the holder of such Warrant Certificate only outside the
United States and its possessions.]
A-5
<PAGE>
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ____________________ Name_____________________________
____________________________ Address__________________________
(Insert Social Security or
Other Identifying Number _________________________________
of Holder)
Signature________________________
[If registered Warrant -- [If registered Warrant --
Signature Guaranteed (Signature must conform in
___________________________] all respects to name of holder
as specified on face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York or
Chicago Stock Exchange)]
The warrants evidenced hereby may be exercised at the following address:
By hand at ___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
By mail at ___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificate evidencing unexercised Warrants -- complete as
appropriate.]
A-6
<PAGE>
[If registered Warrant]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED ______________________________________ hereby sells,
assigns and transfers unto
_________________________________ _________________________________
(Please print name) (Please insert social security or
other identifying number)
_________________________________
(Address)
_________________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________ Attorney, to
transfer said Warrant Certificate on the books of the Warrant Agent with full
power of substitution in the premises.
Dated:
_________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York or Chicago Stock Exchange)
Signature Guaranteed
_________________________________
A-7
<PAGE>
CERTIFICATION* AS TO NON-U.S. OWNERSHIP
[To be completed if Securities
in bearer form are requested]
[Form of certificate to be given by person requesting
delivery of bearer Warrant Security upon
exercise of Warrant]
CERTIFICATE
WELLS FARGO & COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: Wells Fargo & Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Securities, by delivery to you of
the Election to Purchase dated as of ______________.
The undersigned hereby certifies that as of the date hereof, the Warrant
Securities which are to be delivered to the undersigned in bearer form upon the
exercise by the undersigned of such Warrant Certificate (i) are owned by persons
that are not United States Persons, as defined below; (ii) are owned by United
States Persons that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.165.12(c)(1)(v))
("financial institutions") purchasing for their own account or for resale, or
(b) United States Persons who acquired the obligations through foreign branches
of United States financial institutions and who hold the obligations through
such financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution provides a certificate in the form
that follows this certificate); or (iii) are owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which
United States or foreign institutions described in clause (iii) above (whether
or not also described in clause (i) or (ii)) certify that they have not acquired
the obligations for purposes of resale directly or indirectly to a United States
Person or to a person within the United States or its possessions. The
undersigned undertakes to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection with United
States tax laws. We irrevocably authorize you to produce this certificate or a
copy hereof to any
A-8
<PAGE>
interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate. "United States Person" shall mean a citizen
or resident of the United States of America (including the District of
Columbia), a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof or an
estate or trust that is subject to United States federal income taxation
regardless of the source of its income.
Date: ____________________
[Name of Person Entitled to
Receive Warrant Securities
Described Herein]
_________________________________
(Authorized Signatory)
Name: ___________________________
Title:
_________________
Subject to change in accordance with changes in tax laws and regulations.
A-9
<PAGE>
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
WELLS FARGO & COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: Wells Fargo & Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Securities, by delivery to you of
the Election to Purchase dated as of ___________.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(V)) that holds customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex following by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
A-10
<PAGE>
Date: _______________________
[Name of Person Entitled to
Delivery of Warrant Securities
Described Herein]
_________________________________
(Authorized Signatory)
Name:____________________________
Title:___________________________
_________________
Subject to change in accordance with changes in tax laws and regulations.
A-11
<PAGE>
EXHIBIT 4(aa)
WELLS FARGO & COMPANY
Form of Preferred Stock Warrant Agreement
THIS WARRANT AGREEMENT dated as of between Wells Fargo & Company, a
Delaware corporation (hereinafter called the "Company,") and ________________ as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with other
securities -- [title of such other securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Preferred Stock or Depositary Shares purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.
<PAGE>
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after ______ (the "Detachable Date")] [and shall not be
separately transferable] and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase one Warrant Security.
[If Offered Securities and Warrants -- Warrant Certificates shall be initially
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence ___ Warrants for each [ ___ principal
amount] [___ shares] of Offered Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated ___ and may have such
letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by the
Chairman of the Board, the President or a Vice President of the Company and by
the Treasurer or one of the Assistant Treasurers or the Secretary or one of the
Assistant Secretaries of the Company under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual or facsimile signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
2
<PAGE>
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name any Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that purpose [If
Offered Securities and Warrants are not immediately detachable -- or upon the
register of the Offered Securities prior to the Detachable Date. Prior to the
Detachable Date, the Company will, or will cause the Registrar of the Offered
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date].
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase up to ___ Warrant Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to ___
Warrant Securities and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
SECTION 2.01. Warrant Price. During the period from ___________________,
through and including ___________________, the exercise price of each Warrant
will be _______. During the period from ___________, through and including
_____, the exercise price of each Warrant will be __________. Such purchase
price of Warrant Securities is referred to in this Agreement as the "Warrant
Price". No adjustment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant.
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on ___ or after [the date thereof] [___]
and at or before 5 P.M., New York City time, on ________________ or such later
date as the Company may designate, by notice to the Warrant Agent and the
holders of Warrant Certificates mailed to their addresses as set forth in the
record books of the Warrant Agent (the "Expiration Date"). Each Warrant not
exercised at or before 5 P.M., New York City time, on the Expiration Date
3
<PAGE>
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificate and by
paying in full, in [lawful money of the United States of America] [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds] the Warrant Price for
each Warrant exercised to the Warrant Agent at its corporate trust office [or at
_____ ], provided that such exercise is subject to receipt within five business
days of such [payment] [wire transfer] by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant Securities set forth
on the reverse side of the Warrant Certificate properly completed and duly
executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a [payment] [wire transfer]
for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder
is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may
be directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
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(e) Prior to the issuance of any Warrants there shall have been
reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient to
provide for the exercise of the Warrant Certificates.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants
or Warrant Certificates. No Warrant Certificates or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to exercise any
voting rights.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such holder's right to exercise the
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<PAGE>
Warrants evidenced by such holder's Warrant Certificate in the manner provided
in such holder's Warrant Certificate and in this Agreement.
SECTION 3.04. Reclassification, Consolidation, Merger, Sale, Conveyance
or Lease. In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding shares of
Warrant Securities; or (b) any consolidation or merger to which the Company is
party (other than a consolidation or a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change in, the outstanding shares of Warrant Securities issuable upon exercise
of the Warrants); or (c) any sale, conveyance or lease to another corporation of
the property of the Company as an entirety or substantially as an entirety; then
the Company, or such successor or purchasing corporation, as the case may be,
shall make appropriate provision by amendment of this Agreement or otherwise so
that the holders of the Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to purchase the kind and amount
of shares of stock and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver Warrant Securities in its own name, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, consolidation,
merger, conveyance, transfer or lease complies with the provisions of this
Section 3.04.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.01. Exchange and Transfer of Warrant Certificates. [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with
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Warrants which are not immediately detachable -- Prior to the Detachable Date a
Warrant Certificate may be exchanged or transferred only together with the
Offered Security to which the Warrant Certificate was initially attached, and
only for the purpose of effecting or in conjunction with an exchange or transfer
of such Offered Security. Prior to any Detachable Date, each transfer of the
Offered Security [on the register of the Offered Securities] shall operate also
to transfer the related Warrant Certificates. After the Detachable Date upon]
surrender at the corporate trust office of the Warrant Agent [or ____], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office [and at
____], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office [or ____] for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge
shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are so surrendered for exchange or registration of
transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificate surrendered for such
exchange or registration of transfer.
SECTION 4.02 Treatment of Holders of Warrant Certificates. [If Offered
Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date and prior to due presentment of a Warrant Certificate for registration of
transfer,] [T]he Company and the Warrant Agent may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby
7
<PAGE>
shall, if surrendered to the Company, be delivered to the Warrant Agent and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly cancelled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time or otherwise dispose of cancelled
Warrant Certificates in a manner satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT.
SECTION 5.01. Warrant Agent. The Company hereby appoints as _____
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
______ hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
SECTION 5.02 Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred other
than as a result of the Warrant Agent's negligence, bad faith or willful
misconduct in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred other than as a
result of the Warrant Agent's negligence, bad faith or willful misconduct,
arising out of or in connection with its acting as Warrant Agent hereunder, as
well as the costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection
8
<PAGE>
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its stockholders,
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Warrant Securities or other obligations
of the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in this Warrant Agreement shall be deemed to prevent the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of
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<PAGE>
the foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall it all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such
10
<PAGE>
appointment hereunder, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor
Warrant Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not materially adversely affect the interests of the holders of the
Warrant Certificates.
The parties hereto may also modify or amend this Agreement and the
terms of the Warrant Certificates with the consent of the holders of not less
than a majority in number of the then outstanding unexercised Warrant
Certificates affected thereby; provided that no such modification or amendment
that accelerates the expiration date, increases the exercise price or reduces
the number of outstanding Warrant Certificates the consent of the holders of
which is required for any such modification or amendment, may be made without
the consent of each holder affected thereby.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to ____________,
Attention: ______ and any communication from the Warrant
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Agent to the Company with respect to this Agreement shall be addressed to Wells
Fargo & Company, 444 Market Street, San Francisco, California 94111, (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities act filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
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IN WITNESS WHEREOF Wells Fargo & Company and ______ have caused this
Agreement to be signed by their respective duly authorized officers, and their
respective corporate seals to be affixed hereunto, and the same to be attested
by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
WELLS FARGO & COMPANY
By___________________________________
Title:
Attest:
- ------------------------------
Title:
[Warrant Agent]
By___________________________________
Title:
Attest:
- ------------------------------
Title
13
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities Prior to _________ this Warrant
with Warrants which are Certificatecannot be transferred or
not immediately detachable. exchanged unless attached to a
[Title of Offered Securities].]
[Form of Legend if Warrants are not Prior to ___________, Warrants
immediately exercisable. evidenced by this Warrant
Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
WELLS FARGO & COMPANY
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON __________________
No. ______________ __________ Warrants
This certifies that _________________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants which are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined) to purchase, at
any time [after 5 P.M., New York City time, on ____ and] on or before 5 P.M.,
New York City time, on _________, _________, shares of [Title of Warrant
Securities] (the "Warrant Securities"), of Wells Fargo & Company (the "Company")
on the following basis: during the period from ____, through and including
______, the exercise price of each Warrant will be ___________; during the
period from ________________, through and including ___________, the exercise
price of each Warrant will be (the "Warrant Price"). No adjustment shall be made
for any dividends on any Warrant Securities issuable upon exercise of any
Warrant. The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in full [in
lawful money of the United States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in immediately available funds, the Warrant Price for each Warrant
exercised to the Warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly executed, at
the corporate trust office of [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent"), [or
<PAGE>
________], which is, on the date hereof, at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities with
Warrants which are not immediately detachable --, prior to ______ (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ______ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ______].
[If Offered Securities with registered Warrants which are not
immediately detachable -- Prior to __________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, transfer of this] [if
Offered Securities with registered Warrants which are immediately detachable --
Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or ______] by the registered owner or such owner's assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[if Offered Securities with Warrants which are immediately detachable or Warrant
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ______] for
Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or to exercise any voting rights.
A-2
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This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________
WELLS FARGO & COMPANY
By_______________________________
Title:
Attest:
- ------------------------------
Countersigned:
- ------------------------------
As Warrant Agent
By ___________________________
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in
United States dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds the Warrant Price in full for Warrants exercised to [insert name
of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. ____________ [or ______________________ ], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ___ Warrants,
evidenced by this Warrant Certificate, to purchase ___ shares of the [Title of
Warrant Securities] (the "Warrant Securities") of Wells Fargo & Company and
represents that he has tendered payment for such Warrant Securities [in Dollars]
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer] in immediately available funds to the
order of Wells Fargo & Company, c/o [insert name and address of Warrant Agent],
in the amount of ___ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in fully registered
form in the authorized denominations, registered in such names and delivered all
as specified in accordance with the instructions set forth below.
A-4
<PAGE>
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: _________________________ Name _____________________________
________________________________ Address __________________________
(Insert Social Security or Other
Identifying Number of Holder) __________________________
Signature Guaranteed
____________________ Signature
-------------------------
(Signature must conform
in all respects to name
of holder as specified on the
face of this Warrant Certificate
and must bear a signature
guarantee by a bank, trust
company or member broker of
the New York or Chicago
Stock Exchange)
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at ____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
By mail at ____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
A-5
<PAGE>
Exhibit 4(bb)
WELLS FARGO & COMPANY
Form of Common Stock Warrant Agreement
COMMON STOCK WARRANT AGREEMENT dated as of _______, ____, between Wells
Fargo & Company, a Delaware corporation (hereinafter called the "Company"), and
_________ having a corporate trust office in _________, as warrant agent
(hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue [Class ] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of ___ shares of Common Stock of the Company (par value $1 2/3 per
share) (hereinafter called the "Shares") at an initial cash purchase price of
$___ per Share at any time [after ________ and] prior to 5:00 p.m., New York
City time, on ______, ____ (hereinafter called the "expiration date") (unless
extended as provided in ss.9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
WHEREAS, the Warrants will be offered in Units, each of which consists
of ______ and Warrants to purchase ____ Shares; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company,
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
ss.1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
ss.2. Form of Warrant. The text of the Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the terms of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise price of $___ per Share; provided, however, that the warrant
exercise price and the number of Shares issuable upon exercise of Warrants are
subject to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by the manual
or facsimile signature of the present or any future Chairman of the Board,
President or Vice President of the Company, under its seal, affixed or in
facsimile, and by the manual or facsimile signature of the present or any future
Secretary or Assistant Secretary of the Company.
<PAGE>
The Company shall promptly notify the Warrant Agent from time to time
in writing of the number of Warrants to be issued and furnish written
instructions in connection therewith signed by an executive officer of the
Company; such notification and instructions may, but need not be, in the form of
a general or continuing authorization to the Warrant Agent.
The Warrants shall be dated by the Warrant Agent as of the date of each
initial issuance, and as of the date of issuance thereof upon any transfer or
exchange thereof.
ss.3. Countersignature and Registration. The Warrant Agent shall
maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders thereof. The Warrants
shall be countersigned by the Warrant Agent (or by any successor to the Warrant
Agent then acting as warrant agent under this Agreement) and shall not be valid
for any purpose unless so countersigned. Such Warrants may be so countersigned,
however, by the Warrant Agent (or by its successor as warrant agent) and be
delivered by the Warrant Agent, notwithstanding that the persons whose manual or
facsimile signatures appear thereon as proper officers of the Company shall have
ceased to be such officers at the time of such countersignature or delivery.
Upon issuance of any Warrant, the Company will present the same, or cause the
same to be presented, to the Warrant Agent for countersignature of such Warrant.
ss.4. Transfers and Exchanges. The Warrant Agent shall transfer, from
time to time, any outstanding Warrants upon the books to be maintained by the
Warrant Agent for that purpose, upon the surrender thereof for transfer properly
endorsed or accompanied by appropriate instructions for transfer. Upon any such
transfer, a new Warrant of like tenor shall be issued to the transferee and the
surrendered Warrant shall be cancelled by the Warrant Agent. All such Warrants
so cancelled shall be delivered by the Warrant Agent to the Company from time to
time. The Warrants may be exchanged at the option of the holder thereof, when
surrendered at the office in ____________ of the Warrant Agent, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Shares. The
Warrant Agent is hereby irrevocably authorized to countersign and deliver, in
accordance with the provisions of this Section and ss.3 of this Agreement, such
new Warrants required pursuant to the provisions of this Section, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such purpose.
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
Notwithstanding the foregoing, until ______, the Warrants shall not be
transferable apart from the ______ to which they are attached, any transfer of
the ______ shall be deemed a transfer of the Warrants attached thereto, and any
attempt to transfer the Warrants apart from the ______ shall be void and of no
effect. Each Warrant shall contain a legend to the foregoing effect.]
2
<PAGE>
ss.5. Exercise of Warrants. The registered holder of each Warrant shall
have the right, which may be exercised as in such Warrant expressed, to purchase
from the Company (and the Company shall issue and sell to such registered
holder) the number of Shares specified in such Warrants, upon surrender to the
Company, at the office in _________ of the Warrant Agent of such Warrant, with
the form of election to purchase on the reverse thereof duly filled in and
signed, and upon payment to the Warrant Agent for the account of the Company of
the warrant exercise price, determined in accordance with the provisions of ss.9
of this Agreement, for the number of Shares in respect of which such Warrant is
then exercised. Payment of such warrant exercise price may be made in cash, or
by certified check or bank draft or postal or express money order, payable in
United States dollars, to the order of the Warrant Agent. No adjustment shall be
made for any dividends on any Shares issuable upon exercise of any Warrant.
Subject to ss.6, upon such surrender of Warrants, and payment of the warrant
exercise price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch to or upon the written order of the registered
holder of such Warrants, and in such name or names as such registered holder may
designate, a certificate or certificates for the number of full Shares so
purchased upon the exercise of such Warrants, together with cash, as provided in
ss.9 of this Agreement, in respect of any fraction of a Share otherwise issuable
upon such surrender. Such certificate or certificates shall be deemed to have
been issued and any person so designated to be named therein shall be deemed to
have become a holder of record of such Shares as of the date of the surrender of
such Warrants and payment of the warrant exercise price as aforesaid; provided,
however, that if, at the date of surrender of such Warrants and payment of such
warrant exercise price, the transfer books for the Shares purchasable upon the
exercise of such Warrants shall be closed, no such surrender of such Warrants
and no such payment of such warrant exercise price shall be effective to
constitute the person so designated to be named therein as the holder of record
of such Shares on such date, but shall be effective to constitute such person as
the holder of record of such Shares for all purposes at the opening of business
on the next succeeding day on which the transfer books for the Shares
purchasable upon the exercise of such Warrants shall be opened, and the
certificates for the Shares in respect of which such Warrants are then exercised
shall be issuable as of the date on which such books shall next be opened, and
until such date the Company shall be under no duty to deliver any certificate
for such Shares. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the registered holders thereof, either as an
entirety or from time to time for part only of the Shares specified therein and,
in the event that any Warrant is exercised in respect of less than all of the
Shares specified therein at any time prior to the date of expiration of the
Warrants, a new Warrant or Warrants of like tenor will be issued for the
remaining number of Shares specified in the Warrant so surrendered, and the
Warrant Agent is hereby irrevocably authorized to countersign and to deliver the
required new Warrants pursuant to the provisions of this Section and of ss.3 of
this Agreement, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
ss.6. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Shares issuable upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of any certificates for Shares in a
3
<PAGE>
name other than that of the registered holder of Warrants in respect of which
such Shares are issued and the Company shall not be required to issue and
deliver the certificates for such Shares unless and until the holder has paid to
the Company the amount of any tax which may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction of the
Company that such tax has been paid.
ss.7. Mutilated or Missing Warrants. In case any of the Warrants shall
be mutilated, lost, stolen or destroyed, the Company will issue and the Warrant
Agent will countersign and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant, or in lieu of and substitution for the
Warrant lost, stolen or destroyed, a new Warrant of like tenor and representing
an equivalent right or interest, but only upon receipt of evidence satisfactory
to the Company and the Warrant Agent of such loss, theft or destruction of such
Warrants and indemnity, if requested, also satisfactory to them. Applicants for
such substitute Warrants shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the Warrant
Agent may prescribe. Any such new Warrant shall constitute an original
contractual obligation of the Company whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
ss.8. Reservation of Shares, etc. Prior to the issuance of any Warrants
there shall have been reserved, and the Company shall at all times through the
expiration date keep reserved, out of its authorized and unissued Common Stock,
a number of Shares sufficient to provide for the exercise of the rights of
purchase represented by the Warrants, and the Transfer Agent for the Shares and
every subsequent Transfer Agent for the Shares issuable upon the exercise of any
of the rights of purchase aforesaid are hereby irrevocably authorized and
directed at all times to reserve such number of authorized and unissued Shares
as shall be requisite for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent for the Shares and with every
subsequent Transfer Agent for the Shares issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
certificates required to honor outstanding Warrants that have been exercised.
The Company will supply such Transfer Agent with duly executed certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided in ss.9 of this Agreement. All Warrants surrendered
in the exercise of the rights thereby evidenced or surrendered for transfer,
exchange or partial exercise shall be cancelled by the Warrant Agent and shall
thereafter be delivered to the Company.
ss.9. Warrant Price; Adjustments. A. The warrant price per share at
which Shares shall be purchasable upon exercise of Warrants (herein called the
"warrant exercise price") to and including the expiration date (unless the
expiration date is extended as provided below in this ss.9A) shall be $___ per
share, or, if adjusted as provided in this Section, shall be such price as so
adjusted. The Warrants will not be exercisable prior to [the close of business
on the date of any initial issuance thereof] [___] and will expire at 5:00 p.m.,
New York City time, on the expiration date; provided that the Company reserves
the right to, and may, in its sole discretion, at any time and from time to
time, at such time or times as the
4
<PAGE>
Company so determines, extend the expiration date of the Warrants for such
periods of time as it chooses; further provided that in no case may the
expiration date of the Warrants (as extended) be extended beyond five years from
the expiration date set forth above. Whenever the expiration date of the
Warrants is so extended, the Company shall at least 20 days prior to the then
expiration date cause to be mailed to the Warrant Agent and the registered
holders of the Warrants in accordance with the provisions of ss.17 hereof a
notice stating that the expiration date has been extended and setting forth the
new expiration date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable upon
exercise of each Warrant and the number of Warrants outstanding shall be subject
to adjustment as follows:
(a) In case the Company shall at any time after the date of
this Agreement (i) pay a dividend, or make a distribution, on the
Common Stock which is payable in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding shares of Common Stock into a
greater number of securities (including shares of Common Stock), or
(iii) combine or reclassify its outstanding shares of Common Stock into
a smaller number of shares (including shares of Common Stock), the
number of shares purchasable upon exercise of each Warrant immediately
prior to the occurrence of such event shall be adjusted so that the
holder of each Warrant shall be entitled to receive upon payment of the
warrant purchase price the aggregate number of shares of the Company
which, if such Warrant had been exercised immediately prior to the
occurrence of such event, such holder would have owned or have been
entitled to receive immediately after the occurrence of such event. An
adjustment made pursuant to this subparagraph (a) shall become
effective immediately after the record date in the case of a dividend
and shall become effective immediately after the effective date in the
case of a subdivision or combination. If, as a result of an adjustment
made pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive shares of two or
more classes of capital stock of the Company, the Board of Directors of
the Company (whose determination shall be conclusive) shall determine
the allocation between or among shares of such classes of capital
stock.
In the event that at any time, as a result of an adjustment
made pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive any shares or
other securities of the Company other than shares of Common Stock,
thereafter the number of such other shares so received upon exercise of
any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of Common Stock contained in this
paragraph, and other provisions of this paragraph 9B(1) with respect to
the shares of Common Stock shall apply on like terms to any such other
shares or other securities.
[(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock
entitling them (for a period
5
<PAGE>
expiring within 45 days after such record date) to subscribe for or
purchase Common Stock at a price per share less than the current market
price per share of Common Stock (as defined in subparagraph (e) below)
at such record date, the warrant purchase price shall be determined by
multiplying the warrant purchase price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the
number of Shares of Common Stock outstanding on such record date plus
the number of Shares of Common Stock which the aggregate offering price
of the total number of Shares so offered would purchase at such current
market price, and the denominator of which shall be the number of
Shares of Common Stock outstanding on such record date plus the number
of additional Shares of Common Stock offered for subscription or
purchase. Such adjustment shall be made successively whenever such a
record date is fixed, and shall become effective immediately after such
record date. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase Shares of Common Stock at less
than such current market price, and in determining the aggregate
offering price of such shares, there shall be taken into account any
consideration received by the Company for such rights or warrants, the
value of such consideration, if other than cash, to be determined by
the Board of Directors of the Company. Common Stock owned by or held
for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment required
under this subparagraph (b).]
[(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock of evidences of its
indebtedness or assets (excluding regular quarterly or other periodic
or recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings or referred to in
subparagraph (a) above) or rights or warrants to subscribe or warrants
to purchase (excluding those referred to in subparagraph (b) above),
then in each such case the warrant purchase price shall be determined
by multiplying the warrant purchase price in effect immediately prior
to such record date by a fraction (x) the numerator of which shall be
such current market price (as defined in subparagraph (e) below) per
Share of Common Stock on such record date, less the then fair market
value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights
or warrants applicable to one share of the Common Stock and (y) the
denominator of which shall be the current market price per share of the
Common Stock on such record date. Such adjustment shall be made
successively whenever such a record date is fixed and shall become
effective immediately after such record date. Notwithstanding the
foregoing, in the event that the Company shall distribute any rights or
warrants to acquire capital stock ("Rights") pursuant to this
subparagraph (c), the distribution of separate certificates
representing such Rights subsequent to their initial distribution
(whether or not such distribution shall have occurred prior to the date
of the issuance of such Warrants) shall be deemed to be the
distribution of such Rights for purposes of this subparagraph (c),
provided that the Company may, in lieu of making any adjustment
pursuant to this subparagraph (c) upon a distribution of separate
certificates representing such Rights, make proper provision so that
each holder of such Warrants who exercises such Warrants (or any
portion thereof) (A) before the record date for such distribution of
separate certificates shall be entitled to receive upon such exercise
shares of Common Stock issued with Rights and (B) after such record
date and prior to the expiration, redemption or termination of such
Rights shall be
6
<PAGE>
entitled to receive upon such exercise, in addition to the shares of
Common Stock issuable upon such exercise, the same number of such
Rights as would a holder of the number of shares of Common Stock that
such Warrants so exercised would have entitled the holder thereof to
purchase in accordance with the terms and provisions of and applicable
to the Rights if such Warrants were exercised immediately prior to the
record date for such distribution. Common Stock owned by or held for
the account of the Company or any majority owned subsidiary shall not
be deemed outstanding for the purpose of any adjustment required under
this subparagraph (c).]
(d) After each adjustment of the number of shares purchasable
upon exercise of each Warrant pursuant to subparagraph 9B(1)(a), the
warrant exercise price shall be adjusted by multiplying such warrant
exercise price immediately prior to such adjustment by a fraction of
which the numerator shall be the number of Shares purchasable upon
exercise of each Warrant immediately prior to such adjustment, and the
denominator of which shall be the number of Shares so purchasable
immediately thereafter. [After each adjustment of the warrant exercise
price pursuant to subparagraph 9B(1)(b) or (c), the total number of
Shares or fractional part thereof purchasable upon the exercise of each
Warrant shall be proportionately adjusted to such number of shares or
fractional parts thereof as the aggregate warrant exercise price of the
number of shares or fractional part thereof purchasable immediately
prior to such adjustment will buy at the adjusted warrant exercise
price.]
[(e) For the purpose of any computation under subparagraphs
9B(1)(b) and (c) above, the current market price per Share of Common
Stock at any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days commencing 45
business days before the day in question. The closing price for each
day shall be (i) if the Common Stock is listed or admitted for trading
on the New York Stock Exchange, the last sale price (regular way), or
the average of the closing bid and ask prices (regular way), if no sale
occurred, of Common Stock, 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 Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, (ii) if not listed or quoted as described in (i),
the mean between the closing high bid and low asked quotations of
Common Stock reported by NASDAQ, or any similar system for automated
dissemination of quotations of securities prices then in common use, if
so quoted, or (iii) if not quoted as described in clause (ii), the mean
between the high bid and low asked quotations for Common Stock as
reported by the National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and asked quotations for
Common Stock on at least 5 of the 10 preceding days. If none of the
conditions set forth above is met, the closing price of Common Stock on
any day or the average of such closing prices for any period shall be
the fair market value of Common Stock as determined by a member firm of
the New York Stock Exchange selected by the Company.]
7
<PAGE>
(f) (A) Nothing contained herein shall be construed to require
an adjustment as a result of the issuance of Common Stock pursuant to,
or the granting or exercise of any rights under, the Company's [List
employee and shareholder plans, if any, that might otherwise result in
adjustments].
(B) In addition, no adjustment in the warrant
exercise price shall be required unless and until the earlier
of the following shall have occurred: (x) such adjustment
would require an increase or decrease of at least 1% in the
warrant exercise price or (y) a period of 3 years shall have
elapsed from the date of the occurrence of any event requiring
any such adjustment pursuant to subparagraphs 9B(1)(a), (b) or
(c) above. All adjustments shall be made to the nearest one
hundredth of a Share and the nearest cent, and any adjustments
which by reason of this subparagraph (f) are not required to
be made shall be carried forward cumulatively and taken into
account in any subsequent adjustment which (including such
carry-forward) is required to be made under this subparagraph
(f).
(g) In any case in which this subparagraph 9B(1) shall require
that an adjustment be made retroactively immediately following a record
date, the Company may elect to defer (but only until five business days
following the mailing of the notice described in subparagraph 9B(5)
below) issuing to the holder of any Warrant exercised after such record
date the Shares of the Company issuable upon such exercise over and
above the Shares issuable upon such exercise only on the basis of the
warrant exercise price prior to adjustment.
(h) The Company may, at its option, at any time until the
expiration date, reduce the then current warrant exercise price to any
amount deemed appropriate by the Board of Directors of the Company for
any period not exceeding twenty (20) consecutive days (as evidenced in
a resolution adopted by such Board of Directors), but only upon giving
the notices required by subparagraph 9(B)(5) twenty (20) days prior to
taking such action.
(i) Except as herein otherwise expressly provided, no
adjustment in the warrant exercise price shall be made by reason of the
issuance of Shares, or securities convertible into or exchangeable for
Shares, or securities carrying the right to purchase any of the
foregoing or for any other reason whatsoever.
(j) Irrespective of any of the adjustments in the warrant
exercise price or the number of Shares, Warrant Certificates
theretofore issued may continue to express the same prices and number
of shares as are stated in a similar Warrant Certificate issuable
initially, or at some subsequent time, pursuant to this Agreement and
such number of Shares specified therein shall be deemed to have been so
adjusted.
(2) No fractional Shares of Common Stock shall be issued upon the
exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Shares which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of Shares
purchased pursuant to the Warrants so
8
<PAGE>
exercised. Instead of any fractional Share of Common Stock which would otherwise
be issuable upon exercise of any Warrant, the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the last sales price (or bid price if there were no sales) per Share of
Common Stock, in either case as reported on the New York Stock Exchange
Composite Tape on the business day which next precedes the day of exercise or,
if the Common Stock is not then listed or admitted to trading on the New York
Stock Exchange, an amount equal to the same fraction of the market price per
share of Common Stock (as determined in a manner described by the Board of
Directors of the Company) at the close of business on the business day which
next precedes the day of exercise.
(3) In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding Shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value); or (b) any consolidation or merger to
which the Company is a party (other than a consolidation or a merger in which
the Company is the continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of Common Stock
issuable upon exercise of the Warrants); or (c) any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety; then the Company, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision by amendment
of this Agreement or otherwise so that the holders of the Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as would be received by a holder of
the number of shares of Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. Such provision shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 9. The above provisions of this subparagraph 9B(3) shall similarly apply
to successive reclassifications, changes, consolidations, mergers, sales or
conveyances.
(4) Notwithstanding anything to the contrary contained herein, no
adjustment to the warrant exercise price shall decrease such warrant exercise
price below the then par value of the shares of Common Stock.
(5) Whenever the warrant exercise price then in effect is adjusted as
herein provided, the Company shall mail to each holder of the Warrants at such
holder's address as it shall appear on the books of the Company a statement
setting forth the adjusted warrant exercise price then and thereafter effective
under the provisions hereof, together with the facts, in reasonable detail, upon
which such adjustment is based.
(6) In case (i) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
current or retained earnings, or (ii) the Company shall authorize the granting
to the holders of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights, or (iii) there is
to be any reclassification of the Common Stock of the Company (other
9
<PAGE>
than a subdivision or combination of its outstanding shares of Common Stock), or
any consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or (iv) any
distribution is to be made on or in respect of the Common Stock in connection
with the dissolution, liquidation or winding up of the Company, then the Company
shall mail to each holder of Warrants at such holder's address as it shall
appear on the books of the Company, at least twenty days (or ten days in any
case specified in clause (i) or (ii) above) prior to the applicable record date
hereinafter specified, a notice stating (x) the record date for such dividend,
distribution or rights, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, dissolution, liquidation or winding up.
No failure to mail such notice nor any defect therein or in the mailing thereof
shall affect any such transaction or any adjustment in the warrant exercise
price required by this Section 9.
ss.10. Notice to Warrantholders. Nothing contained in this Agreement or
in any of the Warrants shall be construed as conferring upon the holders thereof
the right to vote or to consent or to receive notice as shareholders in respect
of the meetings of shareholders or the election of directors of the Company or
any other matter, or any rights whatsoever as shareholders of the Company.
ss.11. Certain Covenants of the Company.
A. So long as any unexpired Warrants remain outstanding and if required
in order to comply with the Securities Act of 1933, as amended (the "Act"), the
Company covenants and agrees that it will file such post-effective amendments to
the registration statement filed pursuant to the Act with respect to the
Warrants (File No. 333__ ) (or such other registration statements or
post-effective amendments or supplements) as may be necessary to permit the
Company to deliver to each person exercising a Warrant a prospectus meeting the
requirements of Section 10(a)(3) of the Act and otherwise complying therewith,
and will deliver such a prospectus to each such person. The Company further
covenants and agrees that it will obtain and keep effective all permits,
consents and approvals of governmental agencies and authorities, and will use
its best efforts to take all action which may be necessary to qualify the Shares
for sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants, and to
maintain such qualifications during the entire period in which the Warrants are
exercisable.
B. The Company covenants and agrees that it shall take all such action
as may be necessary to ensure that all Shares will at the time of delivery of
certificates for such Shares (subject to payment of the warrant exercise price)
be duly and validly
10
<PAGE>
authorized and issued and fully paid and nonassessable Shares, free from any
preemptive rights and taxes, liens, charges and security interests created by or
imposed upon the Company.
C. The Company covenants and agrees that it will take all action which
may be necessary to cause the Shares to be duly listed on the New York Stock
Exchange or any securities exchange on which the other shares of Common Stock of
the Company are listed or on the National Market System of NASDAQ at the dates
of exercise of the Warrants.
ss.12. Disposition of Proceeds, etc. A. The Warrant Agent shall account
promptly to the Company with respect to Warrants exercised and concurrently pay
to the Company all moneys received by the Warrant Agent for the purchase of
Shares through the exercise of such Warrants.
B. The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its principal
office in the City of _______________, ____.
ss.13. Merger or Consolidation or Change of Name of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Warrant Agent under
the provisions of ss.15 of this Agreement. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, and if
any of the Warrants shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent and deliver such Warrants so countersigned; and in case at that
time any of the Warrants shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrants either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in
all such cases such Warrant shall have the full force provided in the Warrants
and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases such Warrants shall have the full force provided in the Warrants and in
this Agreement.
11
<PAGE>
ss.14. Duties of Warrant Agent. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
A. The statements contained herein and in the Warrants shall be taken
as statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of any of the same except such as describe the Warrant Agent
or action taken or to be taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants except as herein
otherwise provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
C. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care shall have been
exercised in the selection and continued employment thereof.
D. The Warrant Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company), and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent agreed upon
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the Warrant
Agent's negligence, bad faith or willful misconduct.
G. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this
12
<PAGE>
provision shall not affect the power of the Warrant Agent to take such action as
the Warrant Agent may consider proper, whether with or without any such security
or indemnity. All rights of action under this Agreement or under any of the
Warrants may be enforced by the Warrant Agent without the possession of any of
the Warrants or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the registered holders of the Warrants, as
their respective rights or interests may appear.
H. The Warrant Agent and any stockholder, director, officer or employee
of the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and not in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence or bad faith.
ss.15. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company notice
in writing, and to the holders of the Warrants notice by publication, of such
resignation, specifying a date when such resignation shall take effect, which
notice shall be published at the expense of the Company at least once a week for
two consecutive weeks in a newspaper of general circulation in the City of New
York prior to the date so specified. The Warrant Agent may be removed by the
Company by like notice from the Company to the Warrant Agent and the holders of
Warrants at the expense of the Company. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the registered holder of a Warrant (who shall,
with such notice, submit his Warrant for inspection by the Company), then, at
the expense of the Company, the Warrant Agent or the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be a bank or trust company, in good
standing, incorporated under the laws of any State or of the United States of
America, having at the time of its appointment as Warrant Agent a combined
capital and surplus of at least [$100,000,000]. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Failure to file or publish any notice provided for in this Section,
however, or any
13
<PAGE>
defect therein, shall not affect the legality or validity of the resignation or
removal of the Warrant Agent or the appointment of the successor Warrant Agent,
as the case may be.
ss.16. Identity of Transfer Agent. Forthwith upon the appointment of
any Transfer Agent for the Shares or of any subsequent Transfer Agent for Shares
issuable upon the exercise of the rights of purchase represented by the
Warrants, the Company will file with the Warrant Agent a statement setting forth
the name and address of such Transfer Agent.
ss.17. Notices. Any notice pursuant to this Agreement to be given or
made by the Warrant Agent or by the registered holder of any Warrant to or on
the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Attn: Corporate Secretary
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
______________________
______________________
______________________
Any notice pursuant to this Agreement to be given or made by the
Company or the Warrant Agent to the registered holder of any Warrant shall be
sufficiently given or made (unless otherwise specifically provided for herein)
if sent by first-class mail, postage prepaid, addressed to said registered
holder at his address appearing on the Warrant register.
ss.18. Supplements and Amendments. The parties hereto may from time to
time supplement or amend this Agreement without the approval of any holders of
Warrants in order to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which will not materially adversely affect the
interest of the registered holders of the Warrants.
The parties hereto may also modify or amend this Agreement and the
terms of the Warrant Certificates with the consent of the holders of not less
than a majority in number of the then outstanding unexercised Warrant
Certificates affected thereby; provided that no such modification or amendment
that accelerates the expiration date, increases the exercise
14
<PAGE>
price or reduces the number of outstanding Warrant Certificates the consent of
the holders of which is required for any such modification or amendment, may be
made without the consent of each holder affected thereby.
ss.19. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
ss.20. Law Governing. This Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the State of New York
and for all purposes shall be construed in accordance with the laws of said
State.
ss.21. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or entity other than the Company and the Warrant
Agent and the holders of Warrants any legal or equitable right, remedy or claim
under this Agreement, but this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and the holders of Warrants.
ss.22. Counterparts. This Agreement may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT --
ss.23. Acceleration of Warrants by the Company.
A. At any time on or after __________________, the Company shall have
the right to accelerate any or all Warrants at any time by causing them to
expire at the close of business on the day next preceding a specified date (the
"Acceleration Date"), if the Market Price (as hereinafter defined) of the Common
Stock equals or exceeds ___ percent (___%) of the then effective warrant
exercise price, adjusted as if no changes in such warrant exercise price had
been made pursuant to subsection 9B, on any 20 Trading Days (as hereinafter
defined) within a period of 30 consecutive Trading Days ending no more than five
Trading Days prior to the date on which the Company gives notice to the Warrant
Agent of its election to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the Common Stock is
listed or admitted for trading on the New York Stock Exchange, the last reported
sale price, regular way (or, if no such price is reported, the average of the
reported closing bid and asked prices, regular way) of Common Stock, 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 NASDAQ or, if not listed
or
15
<PAGE>
admitted to trading on any national securities exchange or quoted on the
National Market System of NASDAQ, the average of the closing high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ, or such
other system then in use, or if on any such date the Shares of Common Stock are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange firm selected from time to
time by the Company for the purpose. "Trading Day" shall be each Monday through
Friday, other than any day on which securities are not traded in the system or
on the exchange that is the principal market for the Common Stock, as determined
by the Board of Directors of the Company.
C. In the event of an acceleration of less than all of the Warrants,
the Warrant Agent shall select the Warrants to be accelerated by lot, pro rata
or in such other manner as it deems, in its discretion, to be fair and
appropriate.
D. Notice of an acceleration specifying the Acceleration Date shall be
sent by mailing first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder's address
appearing on the Warrant register not more than 60 days nor less than 30 days
before the Acceleration Date. Such notice of an acceleration also shall be given
no more than 20 days, and no less than 10 days, prior to the mailing of notice
to registered holders of Warrants pursuant to this Section, by publication at
least once in a newspaper of general circulation in the City of New York.
E. Any Warrant accelerated may be exercised until 5:00 p.m., New York
City time, on the business day next preceding the Acceleration Date. The warrant
exercise price shall be payable as provided in ss.5.]
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
WELLS FARGO & COMPANY
By_____________________________________
Its__________________________________
Attest:
_________________________________
_________________________________
______________________________
Warrant Agent
By_____________________________________
Its__________________________________
Attest:
_________________________________
17
<PAGE>
EXHIBIT A
[Form of Warrant]
Unless extended, Void After 5:00 P.M.,
New York City time, _______*_______, ____
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT THE FOLLOWING --
[UNTIL ______,] THE WARRANTS REPRESENTED BY THIS CERTIFICATE SHALL NOT BE
TRANSFERABLE APART FROM THE ___ TO WHICH THEY ARE ATTACHED, ANY TRANSFER OF THE
___ SHALL BE DEEMED A TRANSFER OF THE WARRANTS ATTACHED THERETO, AND ANY ATTEMPT
OF TRANSFER THE WARRANTS APART FROM THE ___ SHALL BE VOID AND OF NO EFFECT.]
No. WA Warrant to Purchase _______
Shares of Common Stock
CLASS___ WARRANT
WELLS FARGO & COMPANY
FOR VALUE RECEIVED, Wells Fargo & Company (the "Company"), upon the
surrender [after __________] and prior to 5:00 P.M., New York City time,
_____*_____, ____ (unless extended) of this Warrant for exercise, with the
exercise form on the reverse side hereof duly executed, at the office of
____________, will sell and deliver or cause to be sold and delivered to
______________ or assigns (the "Warrant Holder") a certificate or certificates
for the number of whole shares purchasable, as indicated above, of fully paid
and non-assessable shares of Common Stock ($1 2/3 par value) of the Company (the
"Shares"), for which this Warrant is exercised, at a price of $___ per Share
(the "Warrant Price"), subject to all the terms, provisions and conditions of a
Common Stock Warrant Agreement dated as of ___________, ____ (the "Warrant
Agreement"), executed by the Company and _____________________ (the "Warrant
Agent"), which Warrant Agreement is hereby incorporated herein by reference and
made a part hereof.
1. The Warrant Price shall be payable in cash, certified check, bank draft,
postal or express money order or by bank wire transfer, in each case, in
immediately available funds, payable in United States dollars, to the order of
the Warrant Agent. In certain events the Warrant Price and the number of Shares
deliverable on exercise of this Warrant are subject to adjustments, as provided
in the Warrant Agreement. No certificates for a fractional Share will be issued.
As to any fraction of a Share which would otherwise be purchasable on the
exercise of a Warrant, the Company shall pay the cash value thereof determined
as provided in the Warrant Agreement.
2. This Warrant is issued in accordance with the Warrant Agreement in which
the rights of the Warrant Holders and the terms, provisions and conditions upon
which
<PAGE>
this Warrant has been executed and delivered and may be exercised are more fully
set forth. Every Warrant Holder, by acceptance hereof, assents to all the terms,
provisions and conditions of the Warrant Agreement. A counterpart of the Warrant
Agreement is on file at the office of the Company in San Francisco, California,
and at the office of the Warrant Agent in ____________, ____.
3. In the event this Warrant shall not be exercised on or before
_____*_____, ____, unless said date is extended as provided for in ss.9A of the
Warrant Agreement, this Warrant shall become void and all rights hereunder shall
cease.
Reference is made to the further provisions of this Warrant set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Warrant shall not be valid for any purpose until it shall have been
countersigned by the Warrant Agent.
*/ The expiration date; see page 1 of the Warrant Agreement.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers and a facsimile of its seal.
Dated:______________, ________
WELLS FARGO & COMPANY
By____________________________________
Its_________________________________
Attest:
______________________________
Countersigned:
______________________________
______________________________
Warrant Agent
By____________________________
Authorized Signature
A-3
<PAGE>
[REVERSE OF WARRANT]
4. Subject to the provisions of paragraph 3 contained on the face of this
Warrant, (a) this Warrant, with or without other Warrants, upon surrender at the
office of the Warrant Agent, may be exchanged for another Warrant or Warrants of
like tenor in denominations entitling the Warrant Holder to purchase a like
aggregate number of Shares, but only to the extent provided in the Warrant
Agreement, or (b) this Warrant may be transferred at the office of the Warrant
Agent by the Warrant Holder or his assigns, in person or by attorney duly
authorized in writing, but only in the manner provided in the Warrant Agreement
and upon surrender of this Warrant. If this Warrant shall be exercised in part,
the Warrant Holder shall be entitled to receive, upon surrender hereof, another
Warrant or Warrants of like tenor for the number of whole Shares not purchased
upon such exercise.
5. No Warrant Holder shall be entitled to vote or receive dividends or be
deemed the holder of Shares of the Company for any purpose, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
Warrant Holder, as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors of the Company, or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any action (whether upon any recapitalization, issue of securities,
reclassification of securities, consolidation, merger, conveyance or otherwise)
or to receive notice of meetings or other action affecting stockholders (except
for notices as provided for in the Warrant Agreement), or to receive dividends
or subscription rights or otherwise, until this Warrant shall have been
exercised and the Shares purchasable on the exercise hereof shall have become
deliverable as provided in the Warrant Agreement.
6. Every holder of a Warrant, by accepting this Warrant, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
this Warrant that until this Warrant is transferred on the books of the Warrant
Agent, the Company and the Warrant Agent may treat the registered holder hereof
as the absolute owner hereof for all purposes notwithstanding any notice to the
contrary.
7. The Company represents and warrants that the Shares to be issued by it
as provided in the Warrant Agreement have been duly authorized and, when so
issued in accordance with the Warrant Agreement, will be validly issued,
fully-paid and non-assessable. The Company represents and warrants that it has
authority to execute and deliver the Warrant Agreement and the Warrants
thereunder, but the Warrant Agent makes no representation with respect thereto,
or with respect to the validity or sufficiency of the Warrants, the Warrant
Agreement or the Shares.
A-4
<PAGE>
FORM OF EXERCISE
(Form of exercise to be executed by the Warrant Holder
at the time of exercise)
To______________________________
_______________________, Warrant
Agent:
The undersigned, holder of the within Warrant, (1) exercises his right to
purchase _________ of the Shares of Common Stock ($1 2/3 par value) of Wells
Fargo & Company, which the undersigned is entitled to purchase under the terms
of the within Warrant, and (2) makes payment in full for the number of Shares of
Common Stock so purchased by payment of $________ in cash.
Please issue the certificate for Shares of Common Stock (and any new
Warrants in the case of a partial exercise) as follows:
____________________________________________________
Print or Type Name
____________________________________________________
Social Security or other Identifying Number
______________________________________________________________________________
Street Address
______________________________________________________________________________
City State Zip Code
A-5
<PAGE>
and deliver it (together with any new Warrants in the case of a partial
exercise) to the above address unless a different address is indicated below.
Dated:_____________________
______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
To be used only for special
instructions for delivery.
Deliver to:
____________________________________________________
Print or Type Name
____________________________________________________
Social Security or other Identifying Number
______________________________________________________________________________
Street Address
______________________________________________________________________________
City State Zip Code
A-6
<PAGE>
ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and
transfers unto ______________
____________________________________________________
Print or Type Name
____________________________________________________
Social Security or other Identifying Number
______________________________________________________________________________
Street Address
______________________________________________________________________________
City State Zip Code
____________________________________________________
Social Security or other Identifying Number
the right represented by the within Warrant to purchase ________ Shares of
Common Stock ($1 2/3 par value) of Wells Fargo & Company to which the within
Warrant relates and appoints _____________ attorney to transfer such right on
the books of the Warrant Agent with full power of substitution in the Premises.
Dated: _______________________
______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
Signature Guaranteed
_______________________________
A-7
<PAGE>
EXHIBIT 4(cc)
COMMON
PAR VALUE $1 2/3
[WELLS FARGO & COMPANY LOGO]
NUMBER SHARES
SPECIMEN SPECIMEN
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
CUSIP 949746 10 1
WELLS FARGO & COMPANY SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFICATE IS TRANSFERABLE IN NEW YORK, NY OR MINNEAPOLIS, MN
THIS CERTIFIES THAT SPECIMEN
IS THE OWNER OF SPECIMEN
FULLY PAID AND NON-ASSESSABLE SHARES OF THE
PAR VALUE $12/3 PER SHARE OF COMMON STOCK OF
Wells Fargo & Company, transferable on the books of the Corporation in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate is not valid unless countersigned by the Transfer
Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
DATED:
COUNTERSIGNED AND REGISTERED:
NORWEST BANK MINNESOTA, N.A.
TRANSFER AGENT AND REGISTRAR Chairman of President and Chief
the Board Executive Officer
BY
SEAL
AUTHORIZED SIGNATURE Secretary
<PAGE>
WELLS FARGO & COMPANY
WELLS FARGO & COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO
SO REQUESTS A STATEMENT OF THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK WHICH
WELLS FARGO & COMPANY IS AUTHORIZED TO ISSUE AND THE QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS OF SUCH PREFERENCE AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE SECRETARY OF WELLS FARGO & COMPANY OR TO ONE OF THE TRANSFER
AGENTS.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
-----------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors
Act
--------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________________ hereby
sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
____________________________________________________________________________
____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
____________________________________________________________________________
_____________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
___________________________________________________________________ Attorney
so transfer the said Stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated__________________________ _____________________________________
SIGNATURE OF STOCKHOLDER
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED BY:
This certificate also evidences and entitles the holder hereof to certain rights
as set forth in a Rights Agreement between Wells Fargo & Company (formerly known
as Norwest Corporation) and ChaseMellon Shareholder Services, L.L.C., dated as
of October 21, 1998, as it may be amended from time to time (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference and
a copy of which is on file at the principal executive offices of the
Corporation. Under certain circumstances, as set forth in the Rights Agreement,
such Rights (as defined in the Rights Agreement) will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The
Corporation will mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor. As set
forth in the Rights Agreement, Rights beneficially owned by any Person (as
defined in the Rights Agreement) who becomes an Acquiring Person (as defined in
the Rights Agreement) become null and void.
<PAGE>
EXHIBIT 5
June 10, 1999
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of Wells Fargo & Company
(the "Corporation") and, as such, I have acted as counsel for the Corporation in
the preparation of a Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Securities Act") in connection with
the proposed offer and sale of the following securities from time to time (the
"Securities") of the Corporation having an aggregate initial offering price of
up to $10,000,000,000: (i) unsecured unsubordinated debt securities in the
forms filed as Exhibits 4(s) and 4(t) to the Registration Statement, with
appropriate insertions, (the "Senior Debt Securities"), (ii) unsecured
subordinated debt securities in the form filed as Exhibit 4(u) to the
Registration Statement, with appropriate insertions, (the "Subordinated Debt
Securities," and together with the Senior Debt Securities, the "Debt
Securities"), (iii) preferred stock and preference stock, no par value, (the
"Preferred Stock") of the Corporation, interests in which may be evidenced by
appropriately prepared depositary shares (the "Depositary Shares"), (iv) common
stock, par value $1 2/3 per share, (the "Common Stock") of the Corporation
issuable upon conversion of Debt Securities, Preferred Stock, or Depositary
Shares, or upon exercise of warrants, and (v) appropriately prepared warrants to
purchase Debt Securities, Preferred Stock, or Common Stock (collectively, the
"Warrants"). The Securities may be offered separately or as part of units with
other Securities, in separate series, in amounts, at prices, and on terms to be
set forth in the prospectus and one or more supplements to the prospectus
(collectively, the "Prospectus") constituting a part of the Registration
Statement, and in the Registration Statement.
The Senior Debt Securities are to be issued under one or more indentures in
the form filed as Exhibit 4(q) to the Registration Statement, with appropriate
insertions, (the "Senior Indenture") to be entered into by the Corporation and a
trustee or trustees to be named by the Corporation. The Subordinated Debt
Securities are to be issued under one or more indentures in the form filed as
Exhibit 4(r) to the Registration Statement, with appropriate insertions, (the
"Subordinated Indenture") to be entered into by the Corporation and a trustee or
trustees to be named by the Corporation. Each series of Preferred Stock is to
be issued under the Restated Certificate of Incorporation, as amended, (the
"Certificate of Incorporation") of the Corporation and a certificate of
designations (a "Certificate of
<PAGE>
Designations") to be approved by the Board of Directors of the Corporation or a
committee thereof and filed with the Secretary of State of the State of Delaware
(the "Delaware Secretary of State") in accordance with Section 151 of the
General Corporation Law of the State of Delaware. The Depositary Shares are to
be issued under a deposit agreement in the form filed as Exhibit 4(y) to the
Registration Statement, with appropriate insertions, (the "Deposit Agreement")
to be entered into by the Corporation, a depositary to be named by the
Corporation, and the holders from time to time of depositary receipts evidencing
Depositary Shares. The Common Stock is to be issued under the Certificate of
Incorporation. The Warrants are to be issued under warrant agreements in the
forms filed as Exhibits 4(z) to 4(bb) to the Registration Statement, with
appropriate insertions, (the "Warrant Agreements") to be entered into by the
Corporation and warrant agents to be named by the Corporation.
Certain terms of the Securities to be issued by the Corporation from time to
time will be approved by the Board of Directors of the Corporation or a
committee thereof or certain authorized officers of the Corporation as part of
the corporate action taken and to be taken (the "Corporate Proceedings") in
connection with issuance of the Securities. I have examined or am otherwise
familiar with the Certificate of Incorporation, the By-Laws of the Corporation,
as amended, the Registration Statement, such of the Corporate Proceedings as
have occurred as of the date hereof, and such other documents, records, and
instruments as I have deemed necessary or appropriate for the purposes of this
opinion.
Based on the foregoing, I am of the opinion that: (i) upon the execution and
delivery by the Corporation of the Senior Indenture or the Subordinated
Indenture, as the case may be, and the execution and delivery of the Deposit
Agreement, and the applicable Warrant Agreement, the completion of all required
Corporate Proceedings, and the execution, issuance, and delivery, and the
authentication by a duly appointed trustee, of the Senior Debt Securities and
Subordinated Debt Securities, the Depositary Shares, and the Warrants,
respectively, pursuant to such agreements, such Senior Indenture or Subordinated
Indenture, Deposit Agreement, or Warrant Agreement, as the case may be, will
become valid and binding instruments, and any Debt Securities issuable
thereunder will be legal, valid, and binding obligations of the Corporation, and
any Preferred Stock (assuming completion of the actions referred to in clause
(ii) below) or Common Stock (assuming completion of the actions referred to in
clause (iii) below) issuable thereunder will be duly and validly authorized and
issued, fully paid, and nonassessable; (ii) upon the authorization, execution,
acknowledgment, delivery, and filing with, and recording by, the Delaware
Secretary of State of the applicable Certificate of Designations, the completion
of all required Corporate Proceedings and the execution, issuance, and delivery
of the Preferred Stock pursuant to such Certificate of Designations, the
Preferred Stock will be duly and validly authorized and issued, fully paid, and
nonassessable; and (iii) upon the authorization of issuance of the Common Stock,
the completion of all required Corporate Proceedings, and the execution,
issuance, and delivery of the Common Stock, the Common Stock will be duly and
validly authorized and issued, fully paid, and nonassessable; except in each
case as enforcement of provisions of such instruments and agreements may be
limited by bankruptcy or other laws of general application affecting the
enforcement of creditors' rights and by general equity principles. The foregoing
opinions assume that (a) the consideration designated in the
<PAGE>
applicable Corporate Proceedings for any Preferred Stock or Common Stock shall
have been received by the Corporation in accordance with applicable law; (b) the
Senior Indenture, the Subordinated Indenture, the Deposit Agreement, and any
Warrant Agreement shall have been duly authorized, executed, and delivered by
all parties thereto other than the Corporation; (c) the Registration Statement
shall have become effective under the Securities Act and will continue to be
effective; (d) the applicable Senior Indenture or Subordinated Indenture shall
have become duly qualified under the Trust Indenture Act of 1939, as amended;
and (e) that, at the time of the authentication and delivery of the Securities,
the Corporate Proceedings related thereto will not have been modified or
rescinded, there will not have occurred any change in the law affecting the
authorization, execution, delivery, validity or enforceability of such
Securities, none of the particular terms of such Securities will violate any
applicable law and neither the issuance and sale thereof nor the compliance by
the Corporation with the terms thereof will result in a violation of any
agreement or instrument then binding upon the Corporation or any order of any
court or governmental body having jurisdiction over the Corporation.
I have also assumed (a) the accuracy and truthfulness of all public records
of the Corporation and of all certifications, documents and other proceedings
examined by me that have been produced by officials of the Corporation acting
within the scope of their official capacities, without verifying the accuracy or
truthfulness of such representations, and (b) the genuineness of such signatures
appearing upon such public records, certifications, documents and proceedings. I
express no opinion as to the laws of any jurisdiction other than the laws of the
State of Minnesota, the General Corporation Law of the State of Delaware, and
the federal laws of the United States of America. I express no opinion as to
whether, or the extent to which, the laws of any particular jurisdiction apply
to the subject matter hereof, including, without limitation, the enforceability
of the governing law provision contained in the Senior Indenture, the
Subordinated Indenture, the Deposit Agreement and the Warrant Agreements (the
"Agreements"). Because the governing law provision of the Agreements relates to
the law of a jurisdiction as to which I express no opinion, the opinions set
forth in clause (a) of the preceding paragraph are given as if the law of the
state Minnesota governs the Agreements.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the Prospectus included therein
under the caption "Legal Opinions" with respect to the matters stated therein
without implying or admitting that I am an "expert" within the meaning of the
Securities Act, or other rules and regulations of the Securities and Exchange
Commission issued thereunder with respect to any part of the Registration
Statement, including this exhibit.
Very truly yours,
/s/ Stanley S. Stroup
Stanley S. Stroup
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Wells Fargo & Company:
We consent to the incorporation by reference in Amendment No. 1 to
Registration Statement No. 333-79493 on Form S-3 ("the Registration
Statement") of Wells Fargo & Company ("the Company"), relating to the
registration of various debt and equity securities, and the Post-Effective
Amendments to Registration Statement Nos. 33-61045 and 33-50435 and the
related prospectus, of our report, dated January 19, 1999, relating to the
consolidated balance sheet of Wells Fargo & Company and Subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statements of income,
changes in stockholders' equity and comprehensive income, and cash flows for
each of the years in the three-year period ended December 31, 1998, which
report is incorporated by reference in the Company's December 31, 1998 Annual
Report on Form 10-K, and to the reference to our firm under the heading
"Experts" in the prospectus included in the Registration Statement.
/s/ KPMG LLP
San Francisco, California
June 11, 1999
