As filed with the Securities and Exchange Commission on March 10, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WELLS FARGO & COMPANY
WELLS FARGO CAPITAL VII
WELLS FARGO CAPITAL VIII
WELLS FARGO CAPITAL IX
WELLS FARGO CAPITAL X
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction
of incorporation or organization)
41-0449260
41-2013575
Applied For
Applied For
Applied For
(I.R.S. Employer
Identification No.)
|
420 Montgomery Street San Francisco, California 94163 (800) 411-4932 (Address, including zip code, and telephone number, including area code, of Wells Fargo & Company’s principal executive offices)
|
Wells Fargo Center MAC #N9305-173 Sixth & Marquette Minneapolis, Minnesota 55479 (612) 667-2085
(Address, including zip code, and telephone number, including
Wells Fargo Capital IX and Wells Fargo Capital X) |
Stanley S. Stroup
Executive Vice President and General Counsel
Wells Fargo & Company
MAC #A0149-072
633 Folsom Street
San Francisco, California 94107
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 Wells Fargo & Company MAC #N9305-173 Wells Fargo Center, 17th Floor Sixth and Marquette Minneapolis, Minnesota 55479 |
Sonia A. Shewchuk Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402-3901 |
Douglas D. Smith Gibson, Dunn & Crutcher LLP One Montgomery Street, 31st Floor 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(c) 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
CALCULATION OF REGISTRATION FEE (1)
|
Title of each Class of
|
Amount
|
Proposed
|
Proposed
|
Amount of
|
||||
|
|
||||||||
|
Wells Fargo & Company Debt Securities (7), Preferred Stock, Depositary Shares, Purchase Contracts (8), Units (9), Common Stock, par value $1-2/3 per share (10), Securities Warrants and back-up undertakings in connection with the Preferred Securities of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X (11) |
$15,260,549,000 |
$15,260,549,000 |
$1,234,578.41(12) |
|||||
|
Wells Fargo Capital VII Preferred Securities |
||||||||
|
Wells Fargo Capital VIII Preferred Securities |
||||||||
|
Wells Fargo Capital IX Preferred Securities |
||||||||
|
Wells Fargo Capital X Preferred Securities |
||||||||
| (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 together with other securities registered hereunder. |
| (3) | Includes such indeterminate number of shares of Preferred Stock of Wells Fargo & Company as may be issued from time to time at indeterminate prices plus such indeterminate number of shares of Preferred Stock of Wells Fargo & Company as may be issued upon exercise of Securities Warrants of Wells Fargo & Company or in exchange for, or upon conversion of, Debt Securities of Wells Fargo & Company or other Preferred Stock of Wells Fargo & Company registered hereunder, such indeterminate number of Depositary Shares of Wells Fargo & Company as may be issued in the event Wells Fargo & Company elects to offer fractional interests in shares of Preferred Stock registered hereunder, and such indeterminate number of shares of Common Stock of Wells Fargo & Company as may be issued upon exercise of Securities Warrants of Wells Fargo & Company or in exchange for, or upon conversion of, Debt Securities or Preferred Stock of Wells Fargo & Company registered hereunder. Also includes such additional principal amount as may be necessary such that, if Debt Securities of Wells Fargo & Company are issued with an original issue discount, the aggregate initial offering price of all Debt Securities will equal the amount registered above less the dollar amount of other securities previously issued. Also includes an indeterminate number of Preferred Securities of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X (the “Trusts”) as may be issued at indeterminate prices and Junior Subordinated Debt Securities that may be issued by Wells Fargo & Company to evidence a loan by a Trust to Wells Fargo & Company of the proceeds from the sale of the Preferred Securities of such Trust. Junior Subordinated Debt Securities evidencing the loan to Wells Fargo & Company may later be distributed to the holders of a Trust’s Preferred Securities upon dissolution of a Trust. |
| (4) | This registration statement also registers, where required, an indeterminate amount of securities to be offered and sold by affiliates of Wells Fargo & Company in market-making transactions. |
| (5) | Omitted pursuant to General Instruction II.D of Form S-3. The proposed maximum offering price per unit will be determined from time to time by the relevant Registrant in connection with the issuance by such Registrant of securities registered hereunder or previously registered under the Securities Act of 1933. |
| (6) | In no event will the aggregate initial offering price of the securities issued under this registration statement exceed the amount registered above or the equivalent thereof in one or more foreign currencies or currency units. No separate consideration will be received for Debt Securities, Common Stock, Preferred Stock or Depositary Shares of Wells Fargo & Company that are issued upon conversion or exchange of Debt Securities, Preferred Stock or Depositary Shares of Wells Fargo & Company or Preferred Securities of a Trust. |
| (7) | The Debt Securities to be offered hereunder will consist of one or more series of Senior Debt Securities, Subordinated Debt Securities or Junior Subordinated Debt Securities, or any thereof, as more fully described herein. |
| (8) | The Purchase Contracts may require the holder thereof to purchase or sell (i) Debt Securities, Preferred Stock, Depositary Shares or Common Stock of Wells Fargo & Company; (ii) securities of an entity unaffiliated with the Registrants, a basket of such securities or any combination of the above, (iii) currencies or (iv) commodities. |
| (9) | The Units to be offered hereunder will consist of one or more Purchase Contracts and Debt Securities. |
| (10) | Common Stock will be issued only upon conversion, exchange or exercise of Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares or Securities Warrants. |
| (11) | Includes the obligations of Wells Fargo & Company under a declaration of trust, a preferred securities guarantee issued with respect to Preferred Securities issued by a Trust, the Junior Subordinated Debt Securities purchased by a Trust, and the Junior Subordinated Indenture, including Wells Fargo & Company’s agreement to pay all trust obligations other than the Common and Preferred Securities. No separate consideration will be received for such obligations. |
| (12) | Pursuant to Rule 457(p), this Registration Statement also constitutes Post-Effective Amendment No. 1 to Registration Statement No. 333-54934 filed on February 2, 2001 (the “First Prior Registration Statement”) and Post-Effective Amendment No. 1 to Registration Statement No. 333-33096 filed on March 23, 2000 (the “Second Prior Registration Statement” and together with the First Prior Registration Statement, the “Prior Registration Statements”) of Wells Fargo Financial, Inc. (“WF Financial”), which is an indirect wholly-owned subsidiary of Wells Fargo & Company. The Post-Effective Amendments to each of the Prior Registration Statements shall become effective concurrently with the effectiveness of this Registration Statement. The Post-Effective Amendments will amend the Prior Registration Statements to deregister the securities which remain unsold thereunder. The amount of the filing fee paid with respect to the securities remaining unsold under the First Prior Registration Statement was $225,000.00 (relating to $900,000,000 of unsold securities and calculated at the rate in effect at the time such First Prior Registration Statement was filed). The amount of the filing fee paid with respect to the securities remaining unsold under the Second Prior Registration Statement was $184,800.00 (relating to $700,000,000 unsold securities and calculated at the rate in effect at the time such Second Prior Registration Statement was filed). Wells Fargo & Company, as the parent of WF Financial, is entitled to offset the $409,800 previously paid against the filing fee due for this Registration Statement. |
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants 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.
|
Ÿ
|
|
Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Common Stock, Depositary Shares, Purchase Contracts, Units and Securities Warrants of
Wells Fargo & Company; and
|
|
Ÿ
|
|
Preferred Securities of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X, Junior Subordinated Debt Securities
of Wells Fargo & Company and guarantees by Wells Fargo & Company of the Preferred Securities of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X.
|
PROSPECTUS
WELLS FARGO & COMPANY
420 Montgomery Street
San Francisco, California 94163
(800) 411-4932
$15,260,549,000
Debt Securities
Preferred Stock
Depositary Shares
Purchase Contracts
Units
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 prospectus 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 , 2003.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Wells Fargo and Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X, or the trusts, filed with the Securities and Exchange Commission using a “shelf” registration process. Under this shelf process, we may sell, either separately or together, debt securities, preferred stock, depositary shares, purchase contracts, units and securities warrants in one or more offerings. We may also issue common stock upon conversion, exchange or exercise of any of the securities mentioned above. The trusts may sell trust preferred securities representing undivided beneficial interests in the trusts to the public and common securities representing undivided beneficial interests in the trusts to us in one or more offerings.
This prospectus provides you with a general description of the debt securities, preferred stock, depositary shares, purchase contracts, units and securities warrants that we may issue. 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. 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/or 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 Act of
2
1934 after the initial filing of the registration statement that contains this prospectus and prior to the later of (1) the time that we sell all the securities offered by this prospectus and (2) the date that our broker-dealer subsidiaries cease offering securities in market-making transactions pursuant to this prospectus:
| Ÿ | Annual Report on Form 10-K for the year ended December 31, 2001, including information specifically incorporated by reference into our Form 10-K from our 2001 Annual Report to Stockholders and our definitive Proxy Statement for our 2002 Annual Meeting of Stockholders; |
| Ÿ | Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002; |
| Ÿ | Current Reports on Form 8-K filed January 15, 2002, April 15, 2002, April 16, 2002, July 16, 2002, August 12, 2002, October 15, 2002, October 22, 2002, December 26, 2002, December 30, 2002, January 21, 2003 and March 5, 2003; and |
| Ÿ | the description of our common stock contained in the Current Report on Form 8-K filed October 14, 1997, including any amendment or report filed to update such description. |
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
Wells Fargo Center
MAC #N9305-173
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
|
Ÿ
|
|
investments in or advances to our existing or future subsidiaries;
|
|
Ÿ
|
|
repayment of obligations that have matured; and
|
|
Ÿ
|
|
reducing our outstanding commercial paper and other debt.
|
|
Fiscal Year Ended December 31,
|
Nine Months Ended September 30,
|
|||||||||||||
|
1997
|
1998
|
1999
|
2000
|
2001
|
2001
|
2002
|
||||||||
|
Ratio of Earnings to Fixed Charges:
|
||||||||||||||
|
Excluding interest on deposits
|
3.02x
|
2.51
|
3.29
|
2.67
|
2.64
|
2.36
|
4.89
|
|||||||
|
Including interest on deposits
|
1.79x
|
1.62
|
2.07
|
1.82
|
1.79
|
1.64
|
3.09
|
|||||||
|
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends:
|
||||||||||||||
|
Excluding interest on deposits
|
2.93x
|
2.45
|
3.22
|
2.65
|
2.62
|
2.34
|
4.88
|
|||||||
|
Including interest on deposits
|
1.77x
|
1.60
|
2.05
|
1.81
|
1.79
|
1.64
|
3.08
|
|||||||
|
Ÿ
|
|
The ratio of earnings to fixed charges is calculated as follows:
|
|
Ÿ
|
|
The ratio of earnings to fixed charges and preferred stock dividends is calculated as follows:
|
|
Ÿ
|
|
Pretax earnings required to cover preferred stock dividends are calculated as follows:
|
|
Ÿ
|
|
Fixed charges, excluding interest on deposits, consist of
|
|
Ÿ
|
|
interest on short-term borrowings and long-term debt,
|
|
Ÿ
|
|
amortization of debt expense,
|
|
Ÿ
|
|
capitalized interest, and
|
|
Ÿ
|
|
one-third of net rental expense, which we believe is representative of the interest factor.
|
|
Ÿ
|
|
Fixed charges, including interest on deposits, consist of all of the items listed immediately above plus interest on deposits.
|
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 senior and subordinated indentures in this section. We have also filed the form of each of these 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 these 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 unsecured 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 securities and, together with such other subordinated debt securities, 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:
| Ÿ | the title and type of the debt securities; |
| Ÿ | any limit on the total principal amount of the debt securities of that series; |
| Ÿ | the price at which the debt securities will be issued; |
| Ÿ | the date or dates on which the principal of and any premium on the debt securities will be payable; |
| Ÿ | the maturity date or dates of the debt securities or the method by which those dates can be determined; |
7
|
Ÿ
|
|
if the debt securities will bear interest:
|
|
Ÿ
|
|
the interest rate on the debt securities or the method by which the interest rate may be determined;
|
|
Ÿ
|
|
the date from which interest will accrue;
|
|
Ÿ
|
|
the record and interest payment dates for the debt securities;
|
|
Ÿ
|
|
the first interest payment date; and
|
|
Ÿ
|
|
any circumstances under which we may defer interest payments;
|
|
Ÿ
|
|
if the amount of principal or interest payable on the debt securities will be determined by reference to one or more currency exchange rates, securities or
baskets of securities, commodity prices or indices, information as to such currencies, securities, commodities or indices;
|
|
Ÿ
|
|
any terms on which the debt securities may be optionally or mandatorily converted or exchanged into or for stock or other securities of an entity unaffiliated
with us, any specific terms relating to the adjustment of the conversion or exchange feature and the period during which the holders may make the conversion or the exchange;
|
|
Ÿ
|
|
the place or places where:
|
|
Ÿ
|
|
we can make payments on the debt securities;
|
|
Ÿ
|
|
the debt securities can be surrendered for registration of transfer or exchange; and
|
|
Ÿ
|
|
notices and demands can be given to us relating to the debt securities and under the applicable indenture;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
any sinking fund provisions that would obligate us to redeem the debt securities before their final maturity;
|
|
Ÿ
|
|
whether the 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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
whether the provisions described below under the heading “—Defeasance” apply to the debt securities;
|
|
Ÿ
|
|
any events of default which will apply to the debt securities in addition to those contained in the applicable indenture;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
the identity of the security registrar and paying agent for the debt securities if other than the applicable trustee;
|
|
Ÿ
|
|
any special tax implications of the debt securities;
|
|
Ÿ
|
|
any special provisions relating to the payment of any additional amounts on the debt securities;
|
|
Ÿ
|
|
the terms of any securities being offered together with or separately from the debt securities; and
|
|
Ÿ
|
|
any other terms of the debt securities.
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
prohibits any Principal Subsidiary Bank from issuing any shares of its capital stock or securities convertible into its capital stock.
|
|
Ÿ
|
|
sales, pledges, assignments or other dispositions or issuances of directors’ qualifying shares;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
incur, assume or become liable for any type of debt or other obligation;
|
|
Ÿ
|
|
create liens on our property for any purpose; or
|
|
Ÿ
|
|
pay dividends or make distributions on our capital stock or repurchase or redeem our capital stock.
|
|
Ÿ
|
|
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 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
|
|
Ÿ
|
|
immediately after the transaction, and giving effect to the transaction, no event of default under the applicable indenture exists. (Section 801)
|
|
Ÿ
|
|
a change in the stated maturity date of any payment of principal or interest;
|
|
Ÿ
|
|
a reduction in payments due on the debt securities;
|
|
Ÿ
|
|
a change in the place of payment or currency in which any payment on the debt securities is payable;
|
|
Ÿ
|
|
a limitation of a holder’s right to sue us for the enforcement of payments due on the debt securities;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
a reduction in the requirements contained in the applicable indenture for quorum or voting;
|
|
Ÿ
|
|
a limitation of a holder’s right, if any, to repayment of debt securities at the holder’s option;
|
|
Ÿ
|
|
in the case of subordinated debt securities convertible into common stock, a limitation of any right to convert the subordinated debt securities; and
|
|
Ÿ
|
|
a modification of any of the foregoing requirements contained in the applicable indenture. (Section 902)
|
|
Ÿ
|
|
a default in the payment of the principal of or any premium or interest on any debt securities of that series; or
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
failure to pay interest on any senior debt security of that series for 30 days after the payment is due;
|
|
Ÿ
|
|
failure to pay the principal of or any premium on any senior debt security of that series when due;
|
|
Ÿ
|
|
failure to deposit any sinking fund payment on senior debt securities of that series when due;
|
|
Ÿ
|
|
failure to perform any of the covenants regarding capital stock of Principal Subsidiary Banks described above under “—Covenants Contained in
Indentures”;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
certain events in bankruptcy, insolvency or reorganization; or
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
certain events in bankruptcy, insolvency or reorganization; or
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
conducting any proceeding for any remedy available to the trustee; or
|
|
Ÿ
|
|
exercising any trust or power conferred upon the trustee. (Sections 512, 603)
|
|
Ÿ
|
|
the holder has previously given the trustee written notice of a continuing event of default with respect to that series;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
the trustee has not started such proceeding within 60 days after receiving the request; and
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
direct obligations of the United States backed by the full faith and credit of the United States; or
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
any other covenant we designate when we establish the series of debt securities.
|
|
Ÿ
|
|
any of our indebtedness for borrowed or purchased money, whether or not evidenced by bonds, debentures, notes or other written instruments,
|
|
Ÿ
|
|
our obligations under letters of credit,
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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,
|
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:
| Ÿ | the payments or distributions consist of securities issued by us or another company in connection with a plan or reorganization or readjustment; and |
| Ÿ | 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:
| Ÿ | the holders of subordinated debt securities, |
| Ÿ | 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:
| Ÿ | the payments or distributions consist of securities issued by us or another company in connection with a plan of reorganization or readjustment; and |
| Ÿ | 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 prevent
17
|
Ÿ
|
|
the number of shares and designation or title of the shares;
|
|
Ÿ
|
|
dividend rights;
|
|
Ÿ
|
|
whether and upon what terms the shares will be redeemable;
|
|
Ÿ
|
|
the rights of the holders upon our dissolution or upon the distribution of our assets;
|
|
Ÿ
|
|
whether and upon what terms the shares will have a purchase, retirement or sinking fund;
|
|
Ÿ
|
|
whether and upon what terms the shares will be convertible;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
any other preferences, rights, limitations or restrictions of the series.
|
|
Ÿ
|
|
the title, stated value and liquidation preference of the preferred stock and the number of shares offered;
|
|
Ÿ
|
|
the initial public offering price at which we will issue the preferred stock;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
any redemption or sinking fund provisions;
|
|
Ÿ
|
|
any conversion provisions;
|
|
Ÿ
|
|
whether we have elected to offer depositary shares as described under “Description of Depositary Shares” below; and
|
|
Ÿ
|
|
any additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions.
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
Wells Fargo Bank Minnesota, N.A. will be the transfer agent and registrar for the preferred stock and any depositary shares.
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
we will not redeem any preferred stock of that series unless we simultaneously redeem all outstanding preferred stock of that series; and
|
|
Ÿ
|
|
we will not purchase or otherwise acquire any preferred stock of that series.
|
|
Ÿ
|
|
the redemption date;
|
|
Ÿ
|
|
the number of shares and the series of the preferred stock to be redeemed;
|
|
Ÿ
|
|
the redemption price;
|
|
Ÿ
|
|
the place or places where holders can surrender the certificates for the preferred stock for payment of the redemption price;
|
|
Ÿ
|
|
that dividends on the shares to be redeemed will cease to accrue on the redemption date; and
|
|
Ÿ
|
|
the date when the holders’ conversion rights, if any, will terminate.
|
|
Ÿ
|
|
the dividends on the preferred stock called for redemption will no longer accrue;
|
|
Ÿ
|
|
those shares will no longer be considered outstanding; and
|
|
Ÿ
|
|
the holders will no longer have any rights as stockholders except to receive the redemption price.
|
|
Ÿ
|
|
liquidation distributions in the amount stated in the applicable prospectus supplement; and
|
|
Ÿ
|
|
all accrued and unpaid dividends, whether or not earned or declared.
|
|
Ÿ
|
|
we voluntarily or involuntarily liquidate, dissolve or wind up our business, and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
rank equal with that series either as to dividends or the distribution of assets upon liquidation, dissolution or winding up of our business, and
|
|
Ÿ
|
|
have voting rights that are exercisable and that are similar to those of that series, we will not:
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
increase the amount of the authorized preferred stock;
|
|
Ÿ
|
|
create and issue another series of preferred stock; or
|
|
Ÿ
|
|
increase the amount of authorized shares of any series of preferred stock;
|
|
Ÿ
|
|
612 shares of ESOP cumulative convertible preferred stock, which we refer to as our ESOP preferred stock;
|
|
Ÿ
|
|
4,743 shares of 1995 ESOP cumulative convertible preferred stock, which we refer to as our 1995 ESOP preferred stock;
|
|
Ÿ
|
|
6,907 shares of 1996 ESOP cumulative convertible preferred stock, which we refer to as our 1996 ESOP preferred stock;
|
|
Ÿ
|
|
7,076 shares of 1997 ESOP cumulative convertible preferred stock, which we refer to as our 1997 ESOP preferred stock;
|
|
Ÿ
|
|
5,745 shares of 1998 ESOP cumulative convertible preferred stock, which we refer to as our 1998 ESOP preferred stock;
|
|
Ÿ
|
|
14,722 shares of 1999 ESOP cumulative convertible preferred stock, which we refer to as our 1999 ESOP preferred stock;
|
|
Ÿ
|
|
38,242 shares of 2000 ESOP cumulative convertible preferred stock, which we refer to as our 2000 ESOP preferred stock;
|
|
Ÿ
|
|
56,826 shares of 2001 ESOP cumulative convertible preferred stock, which we refer to as our 2001 ESOP preferred stock;
|
|
Ÿ
|
|
85,727 shares of 2002 ESOP cumulative convertible preferred stock, which we refer to as our 2002 ESOP preferred stock; and
|
|
Ÿ
|
|
1,460,000 shares of adjustable rate cumulative preferred stock, series B, which we refer to as our series B preferred stock.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
the ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
the 1995 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when a record ownership of the shares of 1995 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
the 1996 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 1996 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
the 1997 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 1997 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
the 1998 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 1998 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
the 1999 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 1999 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
the Fair Market Value per share of 2000 ESOP preferred stock, as that term is used in the certificate of designations for the 2000 ESOP preferred stock, on the
date fixed for redemption.
|
|
Ÿ
|
|
the 2000 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 2000 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
the Fair Market Value per share of 2001 ESOP preferred stock, as that term is used in the certificate of designations for the 2001 ESOP preferred stock, on the
date fixed for redemption.
|
|
Ÿ
|
|
the 2001 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 2001 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
$1,000.00 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption; and
|
|
Ÿ
|
|
the Fair Market Value per share of 2002 ESOP preferred stock, as that term is used in the certificate of designations for the 2002 ESOP preferred stock, on the
date fixed for redemption.
|
|
Ÿ
|
|
the 2002 ESOP preferred stock is released from the unallocated reserve of the Plan in accordance with the terms of the Plan; or
|
|
Ÿ
|
|
when record ownership of the shares of 2002 ESOP preferred stock is transferred to any person other than a successor trustee under the Plan.
|
|
Ÿ
|
|
the three-month Treasury Bill Rate;
|
|
Ÿ
|
|
the Ten Year Constant Maturity Rate; or
|
|
Ÿ
|
|
the Twenty Year Constant Maturity Rate, as each term is used in the certificate of designations for the series B preferred stock.
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
all outstanding depositary shares relating to the deposit agreement have been redeemed; or
|
|
Ÿ
|
|
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.
|
DESCRIPTION OF PURCHASE CONTRACTS
This section describes the general terms and provisions of the purchase contracts. The prospectus supplement will describe the specific terms of the purchase contracts offered through that prospectus supplement and any general terms outlined in this section that will not apply to those purchase contracts.
We have summarized the material terms and provisions of the purchase contracts in this section. We have also filed the forms of purchase contracts as exhibits to the registration statement. You should read the applicable purchase contract for additional information before you buy any purchase contracts.
General
We may issue purchase contracts, including purchase contracts issued as part of a unit with one or more debt securities, for the purchase or sale of:
| Ÿ | our debt securities, preferred stock, depositary shares or common stock; |
| Ÿ | securities of an entity not affiliated with Wells Fargo, a basket of those securities, an index or indices of those securities or any combination of the above; |
| Ÿ | currencies; or |
| Ÿ | commodities. |
We refer to the property in the above clauses as “purchase contract property.” In this section, when we refer to a unit we mean a unit consisting of purchase contracts and one or more debt securities and not any other combination of securities registered under this registration statement.
Each purchase contract will obligate the holder to purchase or sell, and obligate us to sell or purchase, on specified dates, the purchase contract property at a specified price or prices, all as described in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell the purchase contract property and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
Purchase Contracts Issued as Part of a Unit
Purchase contracts issued as part of a unit will be governed by the terms and provisions of a unit agreement. See “—Significant Provisions of the Unit Agreement.” The applicable prospectus supplement will specify the following:
| Ÿ | whether the purchase contract obligates the holder to purchase or sell the purchase contract property; |
| Ÿ | whether a purchase contract issued as part of a unit may be separated from the other securities constituting part of that unit prior to the purchase contract’s settlement date, except that purchase contracts issued in the United States may not be so separated prior to the 91st day after the issuance of a unit; |
| Ÿ | the methods by which the holders may purchase or sell the purchase contract property; |
| Ÿ | any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract; and |
38
|
Ÿ
|
|
whether the purchase contracts will be issued in fully registered or bearer form, in definitive or global form or in any combination of these forms, although,
in any case, the form of a purchase contract included in a unit will correspond to the form of the unit and of any debt security included in that unit.
|
|
Ÿ
|
|
any debt securities that are part of units that include the purchase contracts, or other property as may be specified in the applicable prospectus supplement,
which we refer to as the “pledged items”;
|
|
Ÿ
|
|
all additions to and substitutions for the pledged items as may be permissible, if so specified in the applicable prospectus supplement;
|
|
Ÿ
|
|
all income, proceeds and collections received or to be received, or derived or to be derived, at any time from or in connection with the pledged items described
in the two clauses above; and
|
|
Ÿ
|
|
all powers and rights owned or thereafter acquired under or with respect to the pledged items.
|
|
Ÿ
|
|
the designation and the terms of the units and of the combination of debt securities and purchase contracts constituting the units, including whether and under
what circumstances the debt securities or purchase contracts may be traded separately;
|
|
Ÿ
|
|
any additional terms of the unit agreement;
|
|
Ÿ
|
|
any additional provisions for the issuance, payment, settlement, transfer or exchange of the units or of the debt securities or purchase contracts constituting
the units; and
|
|
Ÿ
|
|
any applicable United States federal income tax consequences.
|
|
Ÿ
|
|
consents to and agrees to be bound by the terms of the unit agreement;
|
|
Ÿ
|
|
appoints the unit agent as its authorized agent to execute, deliver and perform any purchase contract included in the unit in which that owner has an interest;
and
|
|
Ÿ
|
|
irrevocably agrees to be a party to and be bound by the terms of any purchase contract included in the unit in which that owner has an interest.
|
|
Ÿ
|
|
in the case of an event of default under the debt securities or the applicable indenture, unless the procedures, including notice to us and the trustee,
described in such indenture have been complied with; and
|
|
Ÿ
|
|
in the case of a failure by us to observe or perform any of our obligations under the unit agreement relating to any purchase contracts included in the unit,
unless:
|
|
Ÿ
|
|
owners of not less than 25% of the affected purchase contracts have (a) requested the unit agent to institute that action or proceeding in its own name as unit
agent under the unit agreement and (b) offered the unit agent reasonable indemnity;
|
|
Ÿ
|
|
the unit agent has failed to institute that action or proceeding within 60 days of that request by the owners referred to above; and
|
|
Ÿ
|
|
the owners of a majority of the outstanding affected units have not given directions to the unit agent inconsistent with those of the owners referred to above.
|
|
Ÿ
|
|
cure any ambiguity;
|
|
Ÿ
|
|
correct or supplement any defective or inconsistent provision;
|
|
Ÿ
|
|
add to our covenants or the covenants of the unit agent;
|
|
Ÿ
|
|
change or eliminate any provisions of the unit agreement so long as no units are outstanding or the change does not affect any unit outstanding; or
|
|
Ÿ
|
|
amend the terms in any other manner which we may deem necessary or desirable and which will not adversely affect the interests of the affected holders in any
material respect.
|
|
Ÿ
|
|
impair the right to institute suit for the enforcement of any purchase contract;
|
|
Ÿ
|
|
materially adversely affect the holders’ rights under any purchase contract;
|
|
Ÿ
|
|
reduce the percentage of purchase contracts constituting part of outstanding units the consent of whose owners is required for the modification of the
provisions of the unit agreement relating to those purchase contracts or for the waiver of any defaults under the unit agreement relating to those purchase contracts;
|
|
Ÿ
|
|
materially adversely affect the holders’ units or the terms of the unit agreement (other than terms related to the first three clauses above); or
|
|
Ÿ
|
|
reduce the percentage of outstanding units the consent of whose owners is required for the modification of the provisions of the unit agreement (other than
terms related to the first three clauses above).
|
|
Ÿ
|
|
we will be the continuing corporation; or
|
|
Ÿ
|
|
the successor corporation or person that acquires all or substantially all of our assets:
|
|
Ÿ
|
|
will be a corporation organized under the laws of the United States, a state of the United States or the District of Columbia; and
|
|
Ÿ
|
|
will expressly assume all of our obligations under the unit agreement; and
|
|
Ÿ
|
|
immediately after the merger, consolidation, sale, lease or conveyance, we, that person or that successor corporation will not be in default in the performance
of the covenants and conditions of the unit agreement applicable to us.
|
|
Ÿ
|
|
during the period beginning 15 days before the day of mailing of a notice of redemption or of any other exercise of any right held by us with respect to the
unit or any security constituting the unit evidenced by the mutilated, destroyed, lost or stolen certificate and ending on the day of the giving of that notice;
|
|
Ÿ
|
|
if the mutilated, destroyed, lost or stolen certificate evidences any security selected or called for redemption or other exercise of a right held by us; or
|
|
Ÿ
|
|
at any time on or after the date of settlement or redemption for any purchase contract included in the unit evidenced by the mutilated, destroyed, lost or
stolen certificate, except with respect to any units that remain or will remain outstanding following the date of settlement or redemption.
|
|
Ÿ
|
|
the offering price;
|
|
Ÿ
|
|
the currencies in which the securities warrants are being offered;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
the date on which the right to exercise the securities warrants begins and the date on which the right expires;
|
|
Ÿ
|
|
whether the securities warrants will be in registered or bearer form;
|
|
Ÿ
|
|
United States federal income tax consequences; and
|
|
Ÿ
|
|
any other terms of the securities warrants.
|
|
Ÿ
|
|
the offering price;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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 warrants being offered with each debt security, share of preferred stock or depositary share;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
the date on which the right to exercise the securities warrants begins and the date on which the right expires;
|
|
Ÿ
|
|
United States federal income tax consequences; and
|
|
Ÿ
|
|
any other terms of the securities warrants.
|
|
Ÿ
|
|
delivering to the securities warrant agent the payment required by the applicable prospectus supplement to purchase the underlying security;
|
|
Ÿ
|
|
properly completing and signing the reverse side of the securities warrant certificate representing the securities warrants; and
|
|
Ÿ
|
|
delivering the securities warrant certificate representing the securities warrants to the securities warrant agent, or other office indicated in the applicable
prospectus supplement, within five business days of the securities warrant agent receiving payment of the exercise price.
|
|
Ÿ
|
|
if we issue capital stock as a dividend or distribution on the common stock;
|
|
Ÿ
|
|
if we subdivide, reclassify or combine the common stock;
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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.
|
|
Ÿ
|
|
a reclassification or change of the common stock;
|
|
Ÿ
|
|
a consolidation or merger involving our company; or
|
|
Ÿ
|
|
a sale or conveyance to another corporation of all or substantially all of our property and assets.
|
|
Ÿ
|
|
PTCE 96-23, for specified transactions determined by in-house asset managers;
|
|
Ÿ
|
|
PTCE 95-60, for specified transactions involving insurance company general accounts;
|
|
Ÿ
|
|
PTCE 91-38, for specified transactions involving bank collective investment funds;
|
|
Ÿ
|
|
PTCE 90-1, for specified transactions involving insurance company separate accounts; and
|
|
Ÿ
|
|
PTCE 84-14, for specified transactions determined by independent qualified professional asset managers.
|
|
Ÿ
|
|
no portion of the assets used by such purchaser or holder to acquire or purchase the offered securities constitutes assets of any plan; or
|
|
Ÿ
|
|
the purchase and holding of the offered securities by such purchaser or holder will not constitute a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code or similar violation under applicable law.
|
|
Ÿ
|
|
commercial and savings banks;
|
|
Ÿ
|
|
insurance companies;
|
|
Ÿ
|
|
pension funds;
|
|
Ÿ
|
|
investment companies; and
|
|
Ÿ
|
|
educational and charitable institutions.
|
One or more of our indirectly, wholly-owned subsidiaries, Wells Fargo Brokerage Services, LLC, Wells Fargo Investments, LLC, Wells Fargo Securities, LLC or Wells Fargo Institutional Securities, LLC, 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. The underwriters, agents and dealers participating in the sale of securities offered by this prospectus will not confirm sales to accounts over which they exercise discretionary authority without the prior specific written approval of the customer in accordance with Rule 2720 of the Conduct Rules of the National Association of Securities Dealers, Inc.
This prospectus, together with any applicable prospectus supplement, may also be used by our affiliates, including Wells Fargo Brokerage Services, LLC, Wells Fargo Investments, LLC, Wells Fargo Securities, LLC, and Wells Fargo Institutional Securities, LLC, in connection with offers and sales of the offered securities in market-making transactions at negotiated prices related to prevailing market prices at the time of sale. Such affiliates may act as principals or agents in such transactions. None of our affiliates have any obligation to make a market in any of the offered securities and each may discontinue any market-making activities at any time without notice, at its sole discretion.
We may have agreements with the underwriters, dealers and agents, including our subsidiaries mentioned above, 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 or debt securities issued upon a reopening of an existing series of debt securities, 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. In connection with the distribution of the securities offered under this prospectus, we may enter into swap or other hedging transactions with, or arranged by, underwriters or agents or their affiliates. These underwriters or agents or their affiliates may receive compensation, trading gain or other benefits from these transactions.
LEGAL OPINIONS
Mary E. Schaffner, who is our Senior Counsel, or another of our lawyers, will issue an opinion about the legality of the securities offered by this prospectus. Unless otherwise provided in the applicable prospectus supplement, 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. Ms. Schaffner may rely on Gibson, Dunn & Crutcher LLP as to matters of New York law.
50
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Wells Fargo & Company and Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X, or the “ trusts ”, filed with the Securities and Exchange Commission using a “shelf” registration process. Under this shelf process, we may sell, either separately or together, debt securities, preferred stock, depositary shares, purchase contracts, units and securities warrants. We may also issue common stock upon conversion, exchange or exercise of any of the securities mentioned above. The trusts may sell trust preferred securities representing undivided beneficial interests in the trusts to the public and common securities representing undivided beneficial interests in the trusts to us in one or more offerings.
This prospectus provides you with a general description of the trust preferred securities that a trust may issue and debt securities and trust preferred securities guarantees that we may issue. Each time we or a trust sell securities, we and the trust 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 trusts 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. 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 Act of
2
1934 after the initial filing of the registration statement that contains this prospectus and prior to the later of (1) the time that we and/or a trust sell all the securities offered by this prospectus and (2) the date that our broker-dealer subsidiaries cease offering securities in market-making transactions pursuant to this prospectus:
| Ÿ | Annual Report on Form 10-K for the year ended December 31, 2001, including information specifically incorporated by reference into our Form 10-K from our 2001 Annual Report to Stockholders and our definitive Proxy Statement for our 2002 Annual Meeting of Stockholders; |
| Ÿ | Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002; |
| Ÿ | Current Reports on Form 8-K filed January 15, 2002, April 15, 2002, April 16, 2002, July 16, 2002, August 12, 2002, October 15, 2002, October 22, 2002, December 26, 2002, December 30, 2002, January 21, 2003 and March 5, 2003; and |
| Ÿ | the description of Wells Fargo’s common stock contained in the Current Report on Form 8-K filed October 14, 1997, including any amendment or report filed to update such description. |
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
Wells Fargo Center
MAC #N9305-173
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 the trusts, nor any underwriters or agents, have authorized anyone else to provide you with different information. Wells Fargo and the trusts may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. Wells Fargo and the trusts 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
|
Ÿ
|
|
issuing the trust preferred securities and common securities, or the “
trust securities
”, representing undivided beneficial interests in the
assets of such trust;
|
|
Ÿ
|
|
investing the gross proceeds of the trust preferred securities and the common securities in junior subordinated debt securities; and
|
|
Ÿ
|
|
engaging in only those activities convenient, necessary or incidental thereto.
|
|
Ÿ
|
|
investments in or advances to our existing or future subsidiaries;
|
|
Ÿ
|
|
repayment of obligations that have matured; and
|
|
Ÿ
|
|
reducing our outstanding commercial paper and other debt.
|
|
Fiscal Year Ended December 31,
|
Nine Months Ended
September 30, |
|||||||||||||
|
1997
|
1998
|
1999
|
2000
|
2001
|
2001
|
2002
|
||||||||
|
Ratio of Earnings to Fixed Charges:
|
||||||||||||||
|
Excluding interest on deposits
|
3.02x
|
2.51
|
3.29
|
2.67
|
2.64
|
2.36
|
4.89
|
|||||||
|
Including interest on deposits
|
1.79x
|
1.62
|
2.07
|
1.82
|
1.79
|
1.64
|
3.09
|
|||||||
|
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends: |
||||||||||||||
|
Excluding interest on deposits
|
2.93x
|
2.45
|
3.22
|
2.65
|
2.62
|
2.34
|
4.88
|
|||||||
|
Including interest on deposits
|
1.77x
|
1.60
|
2.05
|
1.81
|
1.79
|
1.64
|
3.08
|
|||||||
|
Ÿ
|
|
The ratio of earnings to fixed charges is calculated as follows:
|
|
Ÿ
|
|
The ratio of earnings to fixed charges and preferred stock dividends is calculated as follows:
|
|
Ÿ
|
|
Pretax earnings required to cover preferred stock dividends are calculated as follows:
|
|
Ÿ
|
|
Fixed charges, excluding interest on deposits, consist of
|
|
Ÿ
|
|
interest on short-term borrowings and long-term debt,
|
|
Ÿ
|
|
amortization of debt expense,
|
|
Ÿ
|
|
capitalized interest, and
|
|
Ÿ
|
|
one-third of net rental expense, which we believe is representative of the interest factor.
|
|
Ÿ
|
|
Fixed charges, including interest on deposits, consist of all of the items listed immediately above plus interest on deposits.
|
|
Ÿ
|
|
the title and type of the debt securities;
|
|
Ÿ
|
|
any limit on the total principal amount of the debt securities of that series;
|
|
Ÿ
|
|
the price at which the debt securities will be issued;
|
|
Ÿ
|
|
the date or dates on which the principal of and any premium on the debt securities will be payable;
|
|
Ÿ
|
|
the maturity date or dates of the debt securities or the method by which those dates can be determined;
|
|
Ÿ
|
|
if the debt securities will bear interest:
|
|
Ÿ
|
|
the interest rate on the debt securities or the method by which the interest rate may be determined;
|
|
Ÿ
|
|
the date from which interest will accrue;
|
|
Ÿ
|
|
the record and interest payment dates for the debt securities;
|
|
Ÿ
|
|
the first interest payment date; and
|
|
Ÿ
|
|
any circumstances under which we may defer interest payments;
|
|
Ÿ
|
|
the place or places where:
|
|
Ÿ
|
|
we can make payments on the debt securities;
|
|
Ÿ
|
|
the debt securities can be surrendered for registration of transfer or exchange; and
|
|
Ÿ
|
|
notices and demands can be given to us relating to the debt securities and under the indenture;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
any sinking fund provisions that would obligate us to redeem the debt securities before their final maturity;
|
|
Ÿ
|
|
whether the 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;
|
|
Ÿ
|
|
if the debt securities will be issued in bearer form, the terms and provisions contained in the bearer securities and in the indenture specifically relating to
the bearer securities;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
whether the provisions described below under the heading “—Defeasance” apply to the debt securities;
|
|
Ÿ
|
|
any events of default which will apply to the debt securities in addition to those contained in the indenture and any events of default contained in the
indenture which will not apply to the debt securities;
|
|
Ÿ
|
|
any additions or changes to or deletions of the covenants contained in the indenture and the ability, if any, of the holders to waive our compliance with those
additional or changed covenants;
|
|
Ÿ
|
|
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 junior subordinated indenture to represent all or
part of a series of debt securities;
|
|
Ÿ
|
|
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;
|
|
Ÿ
|
|
the identity of the security registrar and paying agent for the debt securities if other than the junior subordinated trustee;
|
|
Ÿ
|
|
any special tax implications of the debt securities;
|
|
Ÿ
|
|
any special provisions relating to the payment of any additional amounts on the debt securities;
|
|
Ÿ
|
|
the terms of any securities being offered together with or separately from the debt securities;
|
|
Ÿ
|
|
the terms and conditions of any obligation or right of Wells Fargo or a holder to convert or exchange the debt securities into trust preferred securities or
other securities; and
|
|
Ÿ
|
|
any other terms of the debt securities.
|
|
Ÿ
|
|
on an interest payment date, to the person in whose name that junior subordinated debt security is registered at the close of business on the record date
relating to that interest payment date; and
|
|
Ÿ
|
|
on the date of maturity or earlier redemption or repayment, to the person who surrenders such debt security at the office of our appointed paying agent.
(Sections 307, 1002)
|
|
Ÿ
|
|
issue, register the transfer of, or exchange, junior subordinated debt securities of any series during a period beginning at the opening of business 15 days
before the day of publication or mailing of the notice of redemption and ending at the close of business on the day of such publication or the mailing of such notice; or
|
|
Ÿ
|
|
transfer or exchange any junior subordinated debt securities so selected for redemption, except, in the case of any junior subordinated debt securities being
redeemed in part, any portion thereof not to be redeemed. (Section 305)
|
|
Ÿ
|
|
such trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on
the corresponding series of junior subordinated debt securities;
|
|
Ÿ
|
|
interest payable by Wells Fargo on such series of corresponding junior subordinated debt securities is not, or within 90 days of the date of such opinion, will
not be, deductible by Wells Fargo, in whole or in part, for United States federal income tax purposes; or
|
|
Ÿ
|
|
such trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental
charges. (Section 101)
|
|
Ÿ
|
|
there shall have occurred and be continuing an event of default with respect to a series of junior subordinated debt securities of which we have actual
knowledge and which we have not taken reasonable steps to cure;
|
|
Ÿ
|
|
the junior subordinated debt securities of a series are held by a trust and we shall be in default relating to our payment of any obligations under the
corresponding guarantee; or
|
|
Ÿ
|
|
we shall have given notice of our election to defer payments of interest on a series of junior subordinated debt securities by extending the interest payment
period and such period, or any extension of such period, shall be continuing;
|
|
Ÿ
|
|
we shall not declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of our
capital stock; and
|
|
Ÿ
|
|
we shall not make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities issued by us that rank
equally with or junior to the junior subordinated debt securities (except for partial payments of interest with respect to the junior subordinated debt securities).
|
|
Ÿ
|
|
any repurchase, redemption or other acquisition of shares of our capital stock in connection with (1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (2) a dividend reinvestment or stockholder purchase plan, or (3) the issuance of our capital stock, or securities
convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable extension period;
|
|
Ÿ
|
|
any exchange, redemption or conversion of any class or series of our capital stock, or the capital stock of one of our subsidiaries, for any other class or
series of our capital stock, or of any class or series of our indebtedness for any class or series of our capital stock;
|
|
Ÿ
|
|
any purchase of fractional interests in shares of our capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities
being converted or exchanged;
|
|
Ÿ
|
|
any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or
repurchase of rights pursuant thereto;
|
|
Ÿ
|
|
payments by us under any guarantee agreement executed for the benefit of the trust preferred securities; or
|
|
Ÿ
|
|
any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock. (Section 1008)
|
|
Ÿ
|
|
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 under the
|
|
junior subordinated indenture, including the payment of all amounts due on the debt securities and performance of the covenants in the junior subordinated indenture; and
|
|
Ÿ
|
|
immediately after the transaction, and giving effect to the transaction, no event of default under the junior subordinated indenture exists. (Section 801)
|
|
Ÿ
|
|
failure to pay interest on a junior subordinated debt security of that series for 30 days after the payment is due (subject to the deferral of any due date in
the case of an extension period);
|
|
Ÿ
|
|
failure to pay the principal of or any premium on any junior subordinated debt security of that series when due;
|
|
Ÿ
|
|
failure to deposit any sinking fund payment on junior subordinated debt securities of that series when due;
|
|
Ÿ
|
|
failure to perform any other covenant in the junior subordinated indenture that applies to junior subordinated 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 junior subordinated indenture;
|
|
Ÿ
|
|
certain events in bankruptcy, insolvency or reorganization of Wells Fargo; or
|
|
Ÿ
|
|
any other event of default that may be specified for the junior subordinated debt securities of that series when that series is created. (Section 501)
|
|
Ÿ
|
|
a default in payment of principal of or any premium or interest; or
|
|
Ÿ
|
|
a default under any provision of the junior subordinated indenture which itself cannot be modified or amended without the consent of the holder of each
outstanding junior subordinated debt security of that series.
|
|
Ÿ
|
|
directing the property trustee to enforce the terms of the corresponding junior subordinated debt securities, or
|
|
Ÿ
|
|
suing us to enforce the property trustee’s rights under such junior subordinated debt securities.
|
|
Ÿ
|
|
incur, assume or become liable for any type of debt or other obligation;
|
|
Ÿ
|
|
create liens on our property for any purpose; or
|
|
Ÿ
|
|
pay dividends or make distributions on our capital stock or repurchase or redeem our capital stock, except as set forth under “—Restrictions on
Certain Payments” above.
|
|
Ÿ
|
|
a change in the stated maturity date of any payment of principal or interest, including any additional interest (other than to the extent set forth in the
applicable junior subordinated debt security);
|
|
Ÿ
|
|
a reduction in payments due on the junior subordinated debt securities;
|
|
Ÿ
|
|
a change in the place of payment or currency in which any payment on the junior subordinated debt securities is payable;
|
|
Ÿ
|
|
a limitation of a holder’s right to sue us for the enforcement of payments due on the junior subordinated debt securities;
|
|
Ÿ
|
|
a reduction in the percentage of outstanding junior subordinated debt securities required to consent to a modification or amendment of the junior subordinated
indenture or required to consent to a waiver of compliance with certain provisions of such indenture or certain defaults under such indenture;
|
|
Ÿ
|
|
a reduction in the requirements contained in the junior subordinated indenture for quorum or voting;
|
|
Ÿ
|
|
a limitation of a holder’s right, if any, to repayment of junior subordinated debt securities at the holder’s option;
|
|
Ÿ
|
|
in the case of junior subordinated debt securities convertible into common stock, a limitation of any right to convert such debt securities; and
|
|
Ÿ
|
|
a modification of any of the foregoing requirements contained in the junior subordinated indenture. (Section 902)
|
|
Ÿ
|
|
we deposit with the junior subordinated trustee, in trust, sufficient money or, if the junior subordinated 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 such debt securities of that series, such as sinking fund payments, on the dates the payments are due under the junior
subordinated indenture and the terms of such debt securities;
|
|
Ÿ
|
|
we deliver to the junior subordinated trustee an opinion of counsel that states that the holders of the junior subordinated 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
|
|
Ÿ
|
|
if the junior subordinated debt securities of that series are listed on any domestic or foreign securities exchange, such debt securities will not be delisted
as a result of the deposit. (Section 403)
|
|
Ÿ
|
|
direct obligations of the United States backed by the full faith and credit of the United States; or
|
|
Ÿ
|
|
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)
|
|
Ÿ
|
|
the junior subordinated indenture, including the subordination provisions contained in the junior subordinated indenture, will no longer apply to the junior
subordinated debt securities of that series; however, certain obligations to compensate, reimburse and indemnify the junior subordinated trustee, to register the transfer and exchange of junior subordinated debt securities, to replace lost, stolen
or mutilated junior subordinated 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
|
|
Ÿ
|
|
holders of junior subordinated debt securities of that series can only look to the trust fund for payment of principal, any premium and any interest on such
debt securities of that series. (Section 403)
|
|
Ÿ
|
|
any of our indebtedness for borrowed or purchased money, whether or not evidenced by bonds, debt securities, notes or other written instruments,
|
|
Ÿ
|
|
our obligations under letters of credit,
|
|
Ÿ
|
|
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
|
|
Ÿ
|
|
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,
|
|
Ÿ
|
|
the payments or distributions consist of securities issued by us or another company in connection with a plan of reorganization or readjustment; and
|
|
Ÿ
|
|
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 junior subordinated debt securities. (Section 1801)
|
|
Ÿ
|
|
the holders of junior subordinated debt securities,
|
|
Ÿ
|
|
together with the holders of any of our other obligations ranking equal with those junior subordinated debt securities,
|
|
Ÿ
|
|
the payments or distributions consist of securities issued by us or another company in connection with a plan of reorganization or readjustment; and
|
|
Ÿ
|
|
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 junior subordinated debt securities. (Section 1801)
|
|
Ÿ
|
|
to directly or indirectly maintain 100% ownership of the common securities of the applicable trust unless a permitted successor succeeds to ownership of the
common securities;
|
|
Ÿ
|
|
not to voluntarily terminate, wind up or liquidate any trust, except,
|
|
Ÿ
|
|
in connection with a distribution of corresponding junior subordinated debt securities to the holders of trust preferred securities in exchange therefor upon
liquidation of such trust, or
|
|
Ÿ
|
|
in connection with certain mergers, consolidations or amalgamations permitted by the applicable trust agreement, in either such case, if so specified in the
applicable prospectus supplement and upon any required prior approval of the Federal Reserve; and
|
|
Ÿ
|
|
to use our reasonable efforts, consistent with the terms and provisions of the applicable trust agreement, to cause such trust to remain classified as a grantor
trust and not as an association taxable as a corporation for United States federal income tax purposes.
|
|
Ÿ
|
|
will be cumulative;
|
|
Ÿ
|
|
will accumulate from the date of original issuance; and
|
|
Ÿ
|
|
will be payable on such dates as specified in the applicable prospectus supplement.
|
|
Ÿ
|
|
make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities issued by us that rank equally with or
junior to the junior subordinated debt securities (except for partial payments of interest with respect to the junior subordinated debt securities); or
|
|
Ÿ
|
|
declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of our capital stock,
other than:
|
|
Ÿ
|
|
any repurchase, redemption or other acquisition of shares of our capital stock (1) in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (2) in connection with a dividend reinvestment or stockholder stock purchase plan or (3) in connection with the issuance
of our capital stock, or securities convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into before the applicable extension period;
|
|
Ÿ
|
|
any exchange, redemption or conversion of any class or series of our capital stock, or any capital stock of one of our subsidiaries, for any other class or
series of our capital stock, or of any class or series of our indebtedness for any class or series of our capital stock;
|
|
Ÿ
|
|
any purchase of fractional interests in shares of our capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities
being converted or exchanged;
|
|
Ÿ
|
|
any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or
repurchase of rights pursuant thereto;
|
|
Ÿ
|
|
payments by us under any guarantee agreement executed for the benefit of the trust preferred securities; or
|
|
Ÿ
|
|
any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock.
|
|
Ÿ
|
|
on or after such date as may be specified in the applicable prospectus supplement, in whole at any time or in part from time to time; or
|
|
Ÿ
|
|
at any time, in whole, but not in part, upon the occurrence of a tax event, investment company event or capital treatment event, in any case subject to receipt
of any required prior approval by the Federal Reserve. See “Description of Junior Subordinated Debt Securities—Redemption.”
|
|
Ÿ
|
|
a tax event, investment company event or capital treatment event in respect of a series of trust preferred securities and common securities occurs and
continues, and
|
|
Ÿ
|
|
we do not elect to redeem the corresponding junior subordinated debt securities and thereby cause a mandatory redemption of the related trust preferred
securities and common securities or to dissolve the related trust and cause the corresponding junior subordinated debt securities to be distributed to holders of such trust preferred securities and common securities in exchange therefor upon
liquidation of the trust as described below,
|
|
Ÿ
|
|
with respect to a redemption of any series of trust securities, trust securities of such series having a liquidation amount equal to that portion of the
principal amount of corresponding junior subordinated debt securities to be contemporaneously redeemed in accordance with the junior subordinated indenture, the proceeds of which will be used to pay the redemption price of such trust securities; and
|
|
Ÿ
|
|
with respect to a distribution of corresponding junior subordinated debt securities to holders of any series of trust securities in exchange therefor in
connection with a dissolution or liquidation of a trust, corresponding junior subordinated debt securities having a principal amount equal to the liquidation amount of the trust securities of the holder to whom such corresponding junior subordinated
debt securities would be distributed.
|
|
Ÿ
|
|
such series of trust preferred securities will no longer be deemed to be outstanding;
|
|
Ÿ
|
|
the depositary or its nominee, as the record holder of such series of trust preferred securities, will receive a registered global certificate or certificates
representing the corresponding junior subordinated debt securities to be delivered upon such distribution;
|
|
Ÿ
|
|
any certificates representing such series of trust preferred securities not held by The Depository Trust Company, or
DTC
, or its nominee or surrendered
to the exchange agent will be deemed to represent the corresponding junior subordinated debt securities having a principal amount equal to the stated liquidation amount of such series of trust preferred securities, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid distributions on such series of trust preferred securities until such certificates are so surrendered for transfer or reissuance; and
|
|
Ÿ
|
|
all rights of the holders of such trust preferred securities will cease, except the right to receive corresponding junior subordinated debt securities upon such
surrender.
|
|
Ÿ
|
|
all rights of the holders of such trust preferred securities will cease, except the right of the holders of such trust preferred securities to receive the
redemption price on the redemption date, but without interest on such redemption price; and
|
|
Ÿ
|
|
such trust preferred securities will cease to be outstanding.
|
|
Ÿ
|
|
certain events of bankruptcy, dissolution or liquidation of Wells Fargo;
|
|
Ÿ
|
|
the written direction from us, as holder of the trust’s common securities, to the property trustee to dissolve the trust and distribute a like amount of
the corresponding junior subordinated debt securities to the holders of its trust securities, subject to our having received any required prior approval of the Federal Reserve;
|
|
Ÿ
|
|
redemption of all of its trust preferred securities as described under “—Redemption or Exchange—Mandatory Redemption;” and
|
|
Ÿ
|
|
the entry of an order for the dissolution of the trust by a court of competent jurisdiction.
|
|
Ÿ
|
|
the occurrence of an event of default under the junior subordinated indenture with respect to the corresponding junior subordinated debt securities held by such
trust (see “Description of Junior Subordinated Debt Securities—Events of Default, Waiver and Notice”); or
|
|
Ÿ
|
|
the default by the property trustee in the payment of any distribution on any trust security of such trust when such becomes due and payable, and continuation
of such default for a period of 30 days; or
|
|
Ÿ
|
|
the default by the property trustee in the payment of any redemption price of any trust security of such trust when such becomes due and payable; or
|
|
Ÿ
|
|
the failure to perform or the breach, in any material respect, of any other covenant or warranty of the trustees in the applicable trust agreement for 90 days
after the defaulting trustee or trustees have received written notice of the failure to perform or breach of warranty in the manner specified in such trust agreement; or
|
|
Ÿ
|
|
the occurrence of certain events of bankruptcy or insolvency with respect to the property trustee and our failure to appoint a successor property trustee within
90 days.
|
|
Ÿ
|
|
such successor entity either:
|
|
Ÿ
|
|
expressly assumes all of the obligations of such trust with respect to the trust preferred securities, or
|
|
Ÿ
|
|
substitutes for the trust preferred securities other securities having substantially the same terms as the trust preferred securities, or the “
successor
securities
”, so long as the successor securities rank the same as the trust preferred securities in priority with respect to distributions and payments upon liquidation, redemption and otherwise;
|
|
Ÿ
|
|
we expressly appoint a trustee of such successor entity possessing the same powers and duties as the property trustee as the holder of the corresponding junior
subordinated debt securities;
|
|
Ÿ
|
|
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the trust preferred securities, including any successor
securities, to be downgraded by any nationally recognized statistical rating organization;
|
|
Ÿ
|
|
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the
holders of the trust preferred securities, including any successor securities, in any material respect;
|
|
Ÿ
|
|
such successor entity has a purpose substantially identical to that of such trust;
|
|
Ÿ
|
|
prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, we have received an opinion from independent counsel to such
trust experienced in such matters to the effect that:
|
|
Ÿ
|
|
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the
holders of the trust preferred securities, including any successor securities, in any material respect, and
|
|
Ÿ
|
|
following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither such trust nor such successor entity will be required to
register as an investment company under the Investment Company Act; and
|
|
Ÿ
|
|
we or any permitted successor or assignee owns all of the common securities of such successor entity and guarantees the obligations of such successor entity
under the successor securities at least to the extent provided by the applicable guarantee.
|
|
Ÿ
|
|
cure any ambiguity, correct or supplement any provisions in such trust agreement that may be inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under such trust agreement, which may not be inconsistent with the other provisions of such trust agreement; or
|
|
Ÿ
|
|
modify, eliminate or add to any provisions of such trust agreement to such extent as shall be necessary to ensure that such trust will be classified for United
States federal income tax purposes as a grantor trust at all times that any trust securities are outstanding or to ensure that such trust will not be required to register as an “investment company” under the Investment Company Act.
|
|
Ÿ
|
|
the consent of holders representing not less than a majority, based upon liquidation amounts, of the outstanding trust preferred securities; and
|
|
Ÿ
|
|
receipt by the trustees of an opinion of counsel to the effect that such amendment or the exercise of any power granted to the trustees in accordance with such
amendment will not affect such trust’s status as a grantor trust for United States federal income tax purposes or the trust’s exemption from status as an “investment company” under the Investment Company Act.
|
|
Ÿ
|
|
change the amount or timing of any distribution required to be made in respect of such trust securities as of a specified date; or
|
|
Ÿ
|
|
restrict the right of a holder of such trust securities to institute a suit for the enforcement of any such payment on or after such date.
|
|
Ÿ
|
|
direct the time, method and place of conducting any proceeding for any remedy available to the junior subordinated trustee, or executing any trust or power
conferred on the junior subordinated trustee with respect to such corresponding junior subordinated debt securities;
|
|
Ÿ
|
|
waive any past default that is waivable under the junior subordinated indenture;
|
|
Ÿ
|
|
exercise any right to rescind or annul a declaration that the principal of all the corresponding junior subordinated debt securities is due and payable; or
|
|
Ÿ
|
|
consent to any amendment, modification or termination of the junior subordinated indenture or such corresponding junior subordinated debt securities, where such
consent shall be required.
|
|
Ÿ
|
|
all debts and other obligations of the applicable trust (other than with respect to the trust preferred securities);
|
|
Ÿ
|
|
all costs and expenses of such trust, including costs and expenses relating to the organization of such trust, the fees and expenses of the trustees and the
cost and expenses relating to the operation of such trust; and
|
|
Ÿ
|
|
any and all taxes and costs and expenses with respect thereto, other than United States withholding taxes, to which such trust might become subject.
|
|
Ÿ
|
|
any accrued and unpaid distributions that are required to be paid on the trust preferred securities, to the extent such trust has funds available for
distributions;
|
|
Ÿ
|
|
the redemption price, plus all accrued and unpaid distributions relating to any trust preferred securities called for redemption by such trust, to the extent
such trust has funds available for redemptions; and
|
|
Ÿ
|
|
upon a voluntary or involuntary dissolution, winding-up or termination of such trust, other than in connection with the distribution of junior subordinated debt
securities to the holders of trust preferred securities or the redemption of all of the trust preferred securities, the lesser of:
|
|
Ÿ
|
|
the aggregate of the liquidation amount and all accrued and unpaid distributions on the trust preferred securities to the date of payment to the extent such
trust has funds available; and
|
|
Ÿ
|
|
the amount of assets of such trust remaining for distribution to holders of the trust preferred securities in liquidation of such trust.
|
|
Ÿ
|
|
subordinate and junior in right of payment to all our other liabilities in the same manner as the junior subordinated debt securities as set forth in the junior
subordinated indenture; and
|
|
Ÿ
|
|
equally with all other trust preferred security guarantees that we issue.
|
|
Ÿ
|
|
the aggregate principal amount of such junior subordinated debt securities will be equal to the sum of the aggregate stated liquidation amount of such trust
securities;
|
|
Ÿ
|
|
the interest rate and the interest and other payment dates on such junior subordinated debt securities will match the distribution rate and distribution and
other payment dates for such trust securities;
|
|
Ÿ
|
|
under the junior subordinated indenture, we will pay, and the applicable trust will not be obligated to pay, directly or indirectly, all costs, expenses, debts
and obligations of such trust, other than those relating to such trust securities; and
|
|
Ÿ
|
|
the applicable trust agreement further provides that the trustees may not cause or permit the trust to engage in any activity that is not consistent with the
purposes of the trust.
|
|
Ÿ
|
|
directing the property trustee to enforce the terms of the corresponding junior subordinated debt securities, or
|
|
Ÿ
|
|
suing us to enforce the property trustee’s rights under such junior subordinated debt securities. (Section 508)
|
|
Ÿ
|
|
commercial and savings banks;
|
|
Ÿ
|
|
insurance companies;
|
|
Ÿ
|
|
pension funds;
|
|
Ÿ
|
|
investment companies; and
|
|
Ÿ
|
|
educational and charitable institutions.
|
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 or a trust issue securities, they may be new securities with no established trading market. If we or a trust 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. In connection with the distribution of securities offered under this prospectus, we may enter into swap or other hedging transactions with, or arranged by, underwriters or agents or their affiliates. These underwriters or agents or their affiliates may receive compensation, trading gain or other benefits from these transactions.
LEGAL OPINIONS
Mary E. Schaffner, who is our Senior Counsel, or another of our lawyers, will issue an opinion about the legality of the securities offered by this prospectus. Richards, Layton & Finger, P.A., special Delaware counsel for the trusts, will pass upon certain legal matters for the trusts. Unless otherwise provided in the applicable prospectus supplement, 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. Ms. Schaffner may rely on Gibson, Dunn & Crutcher LLP as to matters of New York law.
EXPERTS
The consolidated financial statements of Wells Fargo as of December 31, 2001 and 2000, and for each of the years in the three-year period ended December 31, 2001, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
42
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 Registrants in connection with the issuance and distribution of the securities being registered:
|
Registration Fee |
$ |
1,234,578.41 |
|
|
Legal Fees and Expenses* |
|
800,000.00 |
|
|
Trustee Fees and Expenses* |
|
150,000.00 |
|
|
Accounting Fees and Expenses* |
|
400,000.00 |
|
|
Blue Sky and Legal Investment Fees and Expenses* |
|
100,000.00 |
|
|
Printing and Engraving Fees* |
|
175,000.00 |
|
|
Rating Agency Fees* |
|
300,000.00 |
|
|
Listing Fees* |
|
300,000.00 |
|
|
Miscellaneous* |
|
100,000.00 |
|
|
|
|
||
|
Total* |
$ |
3,559,578.41 |
|
|
|
|
| *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 Wells Fargo & Company (“Wells Fargo”) provides for broad indemnification of directors and officers. Wells Fargo also maintains insurance coverage relating to certain liabilities of directors and officers.
The declaration of trust and trust agreement for each of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X (the “trusts”) filed as Exhibit 4(nn) to this Registration Statement, provides for broad indemnification of the trustees of the trusts and the officers and directors of such trustees.
Pursuant to the terms of forms of underwriting agreements and form of distribution agreement filed as Exhibits 1(a), 1(b), 1(c) and 1(d) to this Registration Statement, the directors and officers of the Registrants 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:
II-1
|
1
|
(d)
|
Form of Underwriting Agreement for Preferred Securities (incorporated by reference to the same numbered exhibit to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated August 15, 2001).
|
|
|
4
|
(a)
|
Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3(b) to Wells Fargo’s Current Report on Form 8-K dated June 28,
1993, Exhibit 3 to Wells Fargo’s Current Report on Form 8-K dated July 3, 1995, and Exhibits 3(b) and 3(c) to Wells Fargo’s Quarterly Report on Form 10-Q for the quarter ended September 30, 1998).
|
|
|
4
|
(b)
|
Certificate of Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3(b) to Wells Fargo’s Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001).
|
|
|
4
|
(c)
|
Certificate of Change of Location of Registered Office and Change of Registered Agent (incorporated by reference to Exhibit 3(b) to Wells Fargo’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999).
|
|
|
4
|
(d)
|
Certificate of Designations for ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 4 to Wells Fargo’s Quarterly Report on
Form 10-Q for the quarter ended March 31, 1994).
|
|
|
4
|
(e)
|
Certificate of Designations for 1995 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 4 to Wells Fargo’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995).
|
|
|
4
|
(f)
|
Certificate of Designations for 1996 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated February 26, 1996).
|
|
|
4
|
(g)
|
Certificate of Designations for 1997 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated April 14, 1997).
|
|
|
4
|
(h)
|
Certificate of Designations for 1998 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated April 20, 1998).
|
|
|
4
|
(i)
|
Certificate of Designations for 1999 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3(b) to Wells Fargo’s Current
Report on Form 8-K dated April 21, 1999).
|
|
|
4
|
(j)
|
Certificate of Designations for 2000 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3(o) to Wells Fargo’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 2000).
|
|
|
4
|
(k)
|
Certificate of Designations for 2001 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated April 17, 2001).
|
|
|
4
|
(l)
|
Certificate of Designations for Wells Fargo’s 2002 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells
Fargo’s Current Report on Form 8-K dated April 16, 2002).
|
|
|
4
|
(m)
|
Certificate of Designations for Adjustable Cumulative Preferred Stock, Series B (incorporated by reference to Exhibit 3(j) to Wells Fargo’s Quarterly
Report on Form 10-Q for the quarter ended September 30, 1998).
|
|
|
4
|
(n)
|
Certificate Eliminating the Certificate of Designations for Fixed/Adjustable Rate Noncumulative Preferred Stock, Series H (incorporated by reference to
Exhibit 4(m) to Wells Fargo’s Registration Statement on Form S-3 filed February 28, 2002).
|
|
4
|
(o)
|
Certificate Eliminating the Certificate of Designations for Series C Junior Participating Preferred Stock (incorporated by reference to Exhibit 3(q) to Wells
Fargo’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002).
|
|
|
4
|
(p)
|
Certificate Eliminating the Certificate of Designations for Cumulative Convertible Preferred Stock, Series B (incorporated by reference to Exhibit 3(a) to
Wells Fargo’s Current Report on Form 8-K dated November 1, 1995).
|
|
|
4
|
(q)
|
Certificate Eliminating the Certificate of Designations for 10.24% Cumulative Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s
Current Report on Form 8-K dated February 20, 1996).
|
|
|
4
|
(r)
|
Certificate Eliminating the Certificate of Designations for Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3(a) to Wells
Fargo’s Current Report on Form 8-K dated April 21, 1999).
|
|
|
4
|
(s)
|
Certificate Eliminating the Certificate of Designations for Cumulative Tracking Preferred Stock (incorporated by reference to Exhibit 3(o) to Well
Fargo’s Annual Report on Form 10-K for the year ended December 31, 1999).
|
|
|
4
|
(t)
|
By-Laws (incorporated by reference to Exhibit 3(m) to Wells Fargo’s Annual Report on Form 10-K for the year ended December 31, 1998).
|
|
|
4
|
(u)
|
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 Wells Fargo’s Registration Statement on Form 8-A dated October 21, 1998).
|
|
|
4
|
(v)
|
Amendment to Rights Agreement, dated as of August 12, 2002, between Wells Fargo and Mellon Investor Services LLC (formerly known as ChaseMellon Shareholder
Services, L.L.C.), as Rights Agent (incorporated by reference to Exhibit 4(c) to Wells Fargo’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002).
|
|
|
4
|
(w)
|
Form of Senior Indenture (incorporated by reference to Exhibit 4(q) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|
|
4
|
(x)
|
Form of Subordinated Indenture (incorporated by reference to Exhibit 4(r) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|
|
4
|
(y)
|
Form of Junior Subordinated Indenture (incorporated by reference to Exhibit 4(w) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3
dated August 15, 2001).
|
|
|
4
|
(z)
|
Forms of Registered Medium-Term Notes (incorporated by reference to Exhibit 4(x) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form
S-3 dated August 15, 2001).
|
|
|
4
|
(aa)
|
Form of Senior Note (incorporated by reference to Exhibit 4(t) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3
dated June 15, 1999).
|
|
|
4
|
(bb)
|
Form of Subordinated Note (incorporated by reference to Exhibit 4(u) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|
|
4
|
(cc)
|
Form of Junior Subordinated Note (incorporated by reference to Exhibit 4(aa) to Wells Fargo’s Registration Statement on Form S-3 filed February 28,
2002).
|
|
|
4
|
(dd)
|
Form of Certificate of Designations of Powers, Preferences and Rights of Preferred Stock (incorporated by reference to Exhibit 4(v) to
Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(ee)
|
Form of Preferred Stock Certificate (incorporated by reference to Exhibit 4(w) to Amendment No. 1 to Wells Fargo’s Registration Statement
on Form S-3 dated June 15, 1999).
|
|
|
4
|
(ff)
|
Form of Convertible Preferred Stock Certificate (incorporated by reference to Exhibit 4(x) to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(gg)
|
Form of Convertible Preferred Stock Certificate (incorporated by reference to Exhibit 4(x) to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(hh)
|
Form of Deposit Agreement, including form of Depositary Receipt (incorporated by reference to Exhibit 4(y) to Amendment No. 1 to Wells
Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(ii)
|
Form of Debt Warrant Agreement, including form of Debt Warrant Certificate (incorporated by reference to Exhibit 4(z) to Amendment No. 1 to
Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(jj)
|
Form of Preferred Stock Warrant Agreement, including form of Preferred Stock Warrant Certificate (incorporated by reference to Exhibit 4(a)(a) to
Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(kk)
|
Form of Common Stock Warrant Agreement, including form of Common Stock Warrant Certificate (incorporated by reference to Exhibit 4(b)(b) to
Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|
|
4
|
(ll)
|
Form of Common Stock Certificate (incorporated by reference to Exhibit 4(c)(c) to Amendment No. 1 to Wells Fargo’s Registration Statement
on Form S-3 dated June 15, 1999).
|
|
|
4
|
(mm)
|
Certificates of Trust of each of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X (the
“Trusts”).
|
|
|
4
|
(nn)
|
Declarations of Trust and Trust Agreements of each of the Trusts.
|
|
|
4
|
(oo)
|
Form of Amended and Restated Declaration of Trust and Trust Agreement (incorporated by reference to Exhibit 4(mm) to Wells Fargo’s Registration
Statement on Form S-3 filed February 28, 2002).
|
|
|
4
|
(pp)
|
Form of Preferred Security Certificate (included as part of Exhibit 4(oo)).
|
|
|
4 |
(qq) |
Form of Guarantee Agreement (incorporated by reference to Exhibit 4(oo) to Wells Fargo’s Registration Statement on Form S-3 filed February 28, 2002). |
|
|
4 |
(rr) |
Form of Unit Agreement. |
|
|
4 |
(ss) |
Form of Purchase Contract (Issuer Sale) (included as part of Exhibit 4(rr)). |
|
|
4 |
(tt) |
Form of Purchase Contract (Issuer Purchase) (included as part of Exhibit 4(rr)). |
|
|
4 |
(uu) |
Form of Unit Certificate (included as part of Exhibit 4(rr)). |
|
|
Wells Fargo 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 Wells Fargo and its consolidated subsidiaries. Copies of instruments with respect to long-term debt will be furnished to the Commission upon request. |
|||
|
5 |
(a) |
Opinion of Senior Counsel of Wells Fargo. |
|
|
5 |
(b) |
Opinion of Richards, Layton & Finger. |
|
|
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 Wells Fargo’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002). |
|
|
23 |
(a) |
Consent of Senior Counsel of Wells Fargo (included as part of Exhibit 5(a)). |
|
|
23 |
(b) |
Consent of Richards, Layton & Finger (included as part of Exhibit 5(b)). |
|
|
23 |
(c) |
Consent of KPMG LLP. |
|
|
24 |
(a) |
Powers of Attorney of Wells Fargo. |
|
|
24 |
(b) |
Powers of Attorney of each Trust (included as part of Exhibit 4(nn)). |
ITEM 17. UNDERTAKINGS
(a) Each of the undersigned Registrants 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;
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this 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 March 10, 2003.
WELLS FARGO & COMPANY
/s/ R ICHARD M. K OVACEVICH
By:
Richard M. Kovacevich
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the undersigned Trusts certify that they have reasonable grounds to believe that they meet all of the requirements for filing on Form S-3 and have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on March 10, 2003.
WELLS FARGO CAPITAL VII
WELLS FARGO CAPITAL VIII
WELLS FARGO CAPITAL IX
WELSS FARGO CAPITAL X
By: Wells Fargo & Company, as Agent
/s/ R ICHARD M. K OVACEVICH
By:
Richard M. Kovacevich, Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on March 10, 2003 by the following persons in the capacities with Wells Fargo & Company indicated:
|
/s/ R ICHARD M. K OVACEVICH
Richard M. Kovacevich |
Chairman, President and Chief Executive Officer (Principal Executive Officer)
|
|
/s/ H OWARD I. A TKINS
Howard I. Atkins |
Executive Vice President and Chief Financial Officer (Principal Financial Officer)
|
|
/s/ R ICHARD D. L EVY
Richard D. Levy |
Senior Vice President and Controller (Principal Accounting Officer)
|
|
J.A. BLANCHARD III MICHAEL R. BOWLIN DAVID A. CHRISTENSEN SPENCER F. ECCLES SUSAN E. ENGEL ROBERT L. JOSS REATHA CLARK KING RICHARD M. KOVACEVICH RICHARD D. McCORMICK CYNTHIA H. MILLIGAN BENJAMIN F. MONTOYA PHILIP J. QUIGLEY DONALD B. RICE JUDITH M. RUNSTAD SUSAN G. SWENSON MICHAEL W. WRIGHT |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
A majority of the Board of Directors
|
*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/ R ICHARD M. K OVACEVICH
Richard M. Kovacevich, Attorney-in-Fact
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Wells Fargo Financial, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this 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 March 10, 2003 for the sole and limited purpose of filing Post-Effective Amendment No. 1 to Registration Statement No. 333-54934 and Post-Effective Amendment No. 1 to Registration Statement No. 333-33096. Wells Fargo Financial, Inc. is not a Registrant under this Registration Statement.
WELLS FARGO FINANCIAL, INC.
/ S / D ANIEL W. P ORTER
By:
Daniel W. Porter
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on March 10, 2003 by the following persons in the capacities with Wells Fargo Financial, Inc. indicated for the sole and limited purpose of filing Post-Effective Amendment No. 1 to Registration Statement No. 333-54934 and Post-Effective Amendment No. 1 to Registration Statement No. 333-33096.
|
/s/ D ANIEL W. P ORTER
Daniel W. Porter |
Chairman and Chief Executive Officer (Principal Executive Officer)
|
|
|
/s/ D ENNIS E. Y OUNG
Dennis E. Young |
Executive Vice President and Chief Financial Officer (Principal Financial Officer)
|
|
|
/s/ E RIC T. T ORKELSON
Eric T. Torkelson |
Senior Vice President and Controller (Principal Accounting Officer)
|
|
/s/ D ANIEL W. P ORTER
Daniel W. Porter
/s/ T HOMAS P. S HIPPEE
Thomas P. Shippee
/s/ D ENNIS E. Y OUNG
Dennis E. Young |
) ) ) ) ) ) ) ) ) ) ) |
A majority of the Board of Directors
|
II-8
|
Number
|
Description
|
Form of
Filing |
||
|
1(a)
|
Form of Underwriting Agreement for Debt Securities (incorporated by reference to the same numbered exhibit to Amendment No. 1 to Wells Fargo’s Registration
Statement on Form S-3 dated August 15, 2001).
|
|||
|
1(b)
|
Form of Underwriting Agreement for Preferred Stock (incorporated by reference to the same numbered exhibit to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated June 15, 1999).
|
|||
|
1(c)
|
Form of Distribution Agreement (incorporated by reference to the same numbered exhibit to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|||
|
1(d)
|
Form of Underwriting Agreement for Preferred Securities (incorporated by reference to the same numbered exhibit to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated August 15, 2001).
|
|||
|
4(a)
|
Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3(b) to Wells Fargo’s Current Report on Form 8-K dated June 28,
1993, Exhibit 3 to Wells Fargo’s Current Report on Form 8-K dated July 3, 1995, and Exhibits 3(b) and 3(c) to Wells Fargo’s Quarterly Report on Form 10-Q for the quarter ended September 30, 1998).
|
|||
|
4(b)
|
Certificate of Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3(b) to Wells Fargo’s Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001).
|
|||
|
4(c)
|
Certificate of Change of Location of Registered Office and Change of Registered Agent (incorporated by reference to Exhibit 3(b) to Wells Fargo’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999).
|
|||
|
4(d)
|
Certificate of Designations for ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 4 to Wells Fargo’s Quarterly Report on
Form 10-Q for the quarter ended March 31, 1994).
|
|||
|
4(e)
|
Certificate of Designations for 1995 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 4 to Wells Fargo’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995).
|
|||
|
4(f)
|
Certificate of Designations for 1996 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated February 26, 1996).
|
|||
|
4(g)
|
Certificate of Designations for 1997 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated April 14, 1997).
|
|||
|
4(h)
|
Certificate of Designations for 1998 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated April 20, 1998).
|
|||
|
4(i)
|
Certificate of Designations for 1999 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3(b) to Wells Fargo’s Current
Report on Form 8-K dated April 21, 1999).
|
|
Number
|
Description
|
Form of
Filing |
||
|
4(j)
|
Certificate of Designations for 2000 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3(o) to Wells Fargo’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 2000).
|
|||
|
4(k)
|
Certificate of Designations for 2001 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s Current Report
on Form 8-K dated April 17, 2001).
|
|||
|
4(l)
|
Certificate of Designations for Wells Fargo’s 2002 ESOP Cumulative Convertible Preferred Stock (incorporated by reference to Exhibit 3 to Wells
Fargo’s Current Report on Form 8-K dated April 16, 2002).
|
|||
|
4(m)
|
Certificate of Designations for Adjustable Cumulative Preferred Stock, Series B (incorporated by reference to Exhibit 3(j) to Wells Fargo’s
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998).
|
|||
|
4(n)
|
Certificate Eliminating the Certificate of Designations for Fixed/Adjustable Rate Noncumulative Preferred Stock, Series H (incorporated by reference to
Exhibit 4(m) to Wells Fargo’s Registration Statement on Form S-3 filed February 28, 2002).
|
|||
|
4(o)
|
Certificate Eliminating the Certificate of Designations for Series C Junior Participating Preferred Stock (incorporated by reference to Exhibit 3(q) to Wells
Fargo’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002).
|
|||
|
4(p)
|
Certificate Eliminating the Certificate of Designations for Cumulative Convertible Preferred Stock, Series B (incorporated by reference to Exhibit 3(a)
to Wells Fargo’s Current Report on Form 8-K dated November 1, 1995).
|
|||
|
4(q)
|
Certificate Eliminating the Certificate of Designations for 10.24% Cumulative Preferred Stock (incorporated by reference to Exhibit 3 to Wells Fargo’s
Current Report on Form 8-K dated February 20, 1996).
|
|||
|
4(r)
|
Certificate Eliminating the Certificate of Designations for Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3(a) to Wells
Fargo’s Current Report on Form 8-K dated April 21, 1999).
|
|||
|
4(s)
|
Certificate Eliminating the Certificate of Designations for Cumulative Tracking Preferred Stock (incorporated by reference to Exhibit 3(o) to Well
Fargo’s Annual Report on Form 10-K for the year ended December 31, 1999).
|
|||
|
4(t)
|
By-Laws (incorporated by reference to Exhibit 3(m) to Wells Fargo’s Annual Report on Form 10-K for the year ended December 31, 1998).
|
|||
|
4(u)
|
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 Wells Fargo’s Registration Statement on Form 8-A dated October 21, 1998).
|
|
Number
|
Description
|
Form of
Filing |
||
|
4(v)
|
Amendment to Rights Agreement, dated as of August 12, 2002, between Wells Fargo and Mellon Investor Services, LLC (formerly known as ChaseMellon Shareholder
Services, L.L.C.), as Rights Agent (incorporated by reference to Exhibit 4(c) to Wells Fargo’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002).
|
|||
|
4(w)
|
Form of Senior Indenture (incorporated by reference to Exhibit 4(q) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|||
|
4(x)
|
Form of Subordinated Indenture (incorporated by reference to Exhibit 4(r) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|||
|
4(y)
|
Form of Junior Subordinated Indenture (incorporated by reference to Exhibit 4(w) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated August 15, 2001).
|
|||
|
4(z)
|
Forms of Registered Medium-Term Notes (incorporated by reference to Exhibit 4(x) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3
dated August 15, 2001).
|
|||
|
4(aa)
|
Form of Senior Note (incorporated by reference to Exhibit 4(t) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3
dated June 15, 1999).
|
|||
|
4(bb)
|
Form of Subordinated Note (incorporated by reference to Exhibit 4(u) to Amendment No. 1 to Wells Fargo’s Registration Statement on
Form S-3 dated June 15, 1999).
|
|||
|
4(cc)
|
Form of Junior Subordinated Note (incorporated by reference to Exhibit 4(aa) to Wells Fargo’s Registration Statement on Form S-3 filed February 28,
2002).
|
|||
|
4(dd)
|
Form of Certificate of Designations of Powers, Preferences and Rights of Preferred Stock (incorporated by reference to Exhibit 4(v) to
Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|||
|
4(ee)
|
Form of Preferred Stock Certificate (incorporated by reference to Exhibit 4(w) to Amendment No. 1 to Wells Fargo’s Registration Statement
on Form S-3 dated June 15, 1999).
|
|||
|
4(ff)
|
Form of Convertible Preferred Stock Certificate (incorporated by reference to Exhibit 4(x) to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated June 15, 1999).
|
|||
|
4(gg)
|
Form of Convertible Preferred Stock Certificate (incorporated by reference to Exhibit 4(x) to Amendment No. 1 to Wells Fargo’s
Registration Statement on Form S-3 dated June 15, 1999).
|
|||
|
4(hh)
|
Form of Deposit Agreement, including form of Depositary Receipt (incorporated by reference to Exhibit 4(y) to Amendment No. 1 to Wells
Fargo’s Registration Statement on Form S-3 dated June 15, 1999).
|
|
Number |
Description |
Form of
|
||
|
4(ii) |
Form of Debt Warrant Agreement, including form of Debt Warrant Certificate (incorporated by reference to Exhibit 4(z) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999). |
|||
|
4(jj) |
Form of Preferred Stock Warrant Agreement, including form of Preferred Stock Warrant Certificate (incorporated by reference to Exhibit 4(a)(a) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999). |
|||
|
4(kk) |
Form of Common Stock Warrant Agreement, including form of Common Stock Warrant Certificate (incorporated by reference to Exhibit 4(b)(b) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999). |
|||
|
4(ll) |
Form of Common Stock Certificate (incorporated by reference to Exhibit 4(c)(c) to Amendment No. 1 to Wells Fargo’s Registration Statement on Form S-3 dated June 15, 1999). |
|||
|
4(mm) |
Certificates of Trust of each of Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X (the “Trusts”). |
Electronic Transmission |
||
|
4(nn) |
Declarations of Trust and Trust Agreements of each of the Trusts. |
Electronic Transmission |
||
|
4(oo) |
Form of Amended and Restated Declaration of Trust and Trust Agreement (incorporated by reference to Exhibit 4(mm) to Wells Fargo’s Registration Statement on Form S-3 filed February 28, 2002). |
|||
|
4(pp) |
Form of Preferred Security Certificate (included as part of Exhibit 4(oo)). |
|||
|
4(qq) |
Form of Guarantee Agreement (incorporated by reference to Exhibit 4(oo) to Wells Fargo’s Registration Statement on Form S-3 filed February 28, 2002). |
|||
|
4(rr) |
Form of Unit Agreement. |
Electronic Transmission |
||
|
4(ss) |
Form of Purchase Contract (Issuer Sale) (included as part of Exhibit 4(rr)). |
|||
|
4(tt) |
Form of Purchase Contract (Issuer Purchase) (included as part of Exhibit 4(rr)). |
|||
|
4(uu) |
Form of Unit Certificate (included as part of Exhibit 4(rr)). |
|||
|
Wells Fargo 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 Wells Fargo and its consolidated subsidiaries. Copies of instruments with respect to long-term debt will be furnished to the Commission upon request. |
||||
|
5(a) |
Opinion of Senior Counsel of Wells Fargo. |
Electronic Transmission |
||
|
5(b) |
Opinion of Richards, Layton & Finger. |
Electronic Transmission |
4
|
Number
|
Description
|
Form of
Filing |
||
|
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 Wells Fargo’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002).
|
|||
|
23(a)
|
Consent of Senior Counsel of Wells Fargo (included as part of Exhibit 5(a)).
|
|||
|
23(b)
|
Consent of Richards, Layton & Finger (included as part of Exhibit 5(b)).
|
|||
|
23(c)
|
Consent of KPMG LLP.
|
Electronic
Transmission |
||
|
24(a)
|
Powers of Attorney of Wells Fargo.
|
Electronic
Transmission |
||
|
24(b)
|
Powers of Attorney of each Trust (included as part of Exhibit 4(nn)).
|
|
1.
|
|
NAME. The name of the business trust formed hereby is Wells Fargo Capital VII.
|
|
2.
|
|
DELAWARE TRUSTEE. The name and business address of the trustee of the Trust in the State of Delaware is Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
|
|
3.
|
|
EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing.
|
|
WILMINGTON TRUST COMPANY,
as Trustee
|
||
|
By:
|
/s/ A
NITA
D
ALLAGO
|
|
|
|
||
|
Name:
|
Anita Dallago
|
|
|
Title:
|
Financial Services Officer
|
|
|
/s/ L
AUREL
A. H
OLSCHUH
|
||
|
Laurel A. Holschuh, as Trustee
|
||
|
/s/ B
ARBARA
S. B
RETT
|
||
|
Barbara S. Brett, as Trustee
|
||
|
1.
|
|
NAME. The name of the business trust formed hereby is Wells Fargo Capital VIII.
|
|
2.
|
|
DELAWARE TRUSTEE. The name and business address of the trustee of the Trust in the State of Delaware is Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
|
|
3.
|
|
EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing.
|
|
WILMINGTON TRUST COMPANY,
as Trustee
|
||
|
By:
|
/s/ A
NITA
D
ALLAGO
|
|
|
|
||
|
Name:
|
Anita Dallago
|
|
|
Title:
|
Financial Services Officer
|
|
|
/s/ L
AUREL
A. H
OLSCHUH
|
||
|
Laurel A. Holschuh, as Trustee
|
||
|
/s/ B
ARBARA
S. B
RETT
|
||
|
Barbara S. Brett, as Trustee
|
||
|
1.
|
|
NAME. The name of the business trust formed hereby is Wells Fargo Capital IX.
|
|
2.
|
|
DELAWARE TRUSTEE. The name and business address of the trustee of the Trust in the State of Delaware is Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
|
|
3.
|
|
EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing.
|
|
WILMINGTON TRUST COMPANY,
as Trustee
|
||
|
By:
|
/s/ A
NITA
D
ALLAGO
|
|
|
|
||
|
Name:
|
Anita Dallago
|
|
|
Title:
|
Financial Services Officer
|
|
|
/s/ L
AUREL
A. H
OLSCHUH
|
||
|
Laurel A. Holschuh, as Trustee
|
||
|
/s/ B
ARBARA
S. B
RETT
|
||
|
Barbara S. Brett, as Trustee
|
||
CERTIFICATE OF TRUST
OF
WELLS FARGO CAPITAL X
THIS CERTIFICATE OF TRUST OF WELLS FARGO CAPITAL X (the “Trust”) is being duly executed and filed by Wilmington Trust Company, a Delaware banking corporation, and Laurel A. Holschuh and Barbara S. Brett, each an individual, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.) (the “Act”).
| 1. | NAME. The name of the business trust formed hereby is Wells Fargo Capital X. |
| 2. | DELAWARE TRUSTEE. The name and business address of the trustee of the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. |
| 3. | EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing. |
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
|
WILMINGTON TRUST COMPANY, as Trustee |
||
|
By: |
/s/ J AMES P. L AWLER |
|
|
|
||
|
Name: |
James P. Lawler |
|
|
Title: |
Vice President |
|
|
/s/ L AUREL A. H OLSCHUH |
||
|
Laurel A. Holschuh, as Trustee |
||
|
/s/ B ARBARA S. B RETT |
||
|
Barbara S. Brett, as Trustee |
||
|
WELLS FARGO & COMPANY,
as Depositor
|
||
|
By:
|
/s/ L
AUREL
A. H
OLSCHUH
|
|
|
|
||
|
Name:
|
Laurel A. Holschuh
|
|
|
Title:
|
Senior Vice President
|
|
|
WILMINGTON TRUST COMPANY,
as Trustee
|
||
|
By:
|
/s/ A
NITA
D
ALLAGO
|
|
|
|
||
|
Name:
|
Anita Dallago
|
|
|
Title:
|
Financial Services Officer
|
|
|
/s/ L
AUREL
A. H
OLSCHUH
|
||
|
Laurel A. Holschuh, as Trustee
|
||
|
/s/ B
ARBARA
S. B
RETT
|
||
|
Barbara S. Brett, as Trustee
|
||
without cause any Trustee at any time. The Trustees may resign upon thirty (30) days’ prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware (without regard to “conflict of laws” principles).
8. (a) The Trustees and their officers, directors, agents and servants (collectively, the “Fiduciary Indemnified Persons”) shall not be liable, responsible or accountable in damages or otherwise to the Trust, the Depositor, the Trustees or any holder of the Preferred Securities (the Trust, the Depositor and any holder of the Trust Securities being a “Covered Person”) for any loss, damage or claim incurred by reason of any act or omission performed or omitted by the Fiduciary Indemnified Persons in good faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons reasonably believed to be within the scope of authority conferred on the Fiduciary Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary Indemnified Persons shall be liable for any such loss, damage or claim incurred by reason of the Fiduciary Indemnified Person’s gross negligence or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any person as to matters the Fiduciary Indemnified Persons reasonably believe are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to holders of Trust Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent permitted by applicable law, (i) to indemnify and hold harmless each Fiduciary Indemnified Person from and against any loss, damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by the Fiduciary Indemnified Persons by reason of the creation, operation or termination of the Trust in a manner the Fiduciary Indemnified Persons reasonably believed to be within the scope of authority conferred on the Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary Indemnified Persons shall be entitled to be indemnified in respect of any loss, damage or claim incurred by the Fiduciary Indemnified Persons by reason of gross negligence or willful misconduct with respect to such acts or omissions, and (ii) to advance expenses (including legal fees) incurred by a Fiduciary Indemnified Person in defending any claim, demand, action, suit or proceeding, from time to time, prior to the final disposition of such claim, demand, action, suit or proceeding, upon receipt by the Trust of an undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such amount if it shall be determined that such Fiduciary Indemnified Person is not entitled to be indemnified as authorized in the preceding subsection.
(d) The provisions of Section 8 shall survive the termination of this Trust Agreement or the earlier resignation or removal of the Fiduciary Indemnified Persons.
3
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as of the day and year first above written.
|
WELLS FARGO & COMPANY, as Depositor |
||
|
By: |
/s/ B ARBARA S. B RETT |
|
|
|
||
|
Name: |
Barbara S. Brett |
|
|
Title: |
Asst. Treas. |
|
|
WILMINGTON TRUST COMPANY, as Trustee |
||
|
By: |
/s/ A NITA D ALLAGO |
|
|
|
||
|
Name: |
Anita Dallago |
|
|
Title: |
Financial Services Officer |
|
|
/s/ L AUREL A. H OLSCHUH |
||
|
Laurel A. Holschuh, as Trustee |
||
|
/s/ B ARBARA S. B RETT |
||
|
Barbara S. Brett, as Trustee |
||
4
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as of the day and year first above written.
|
WELLS FARGO & COMPANY, as Depositor |
||
|
By: |
/s/ B ARBARA S. B RETT |
|
|
|
||
|
Name: |
Barbara S. Brett |
|
|
Title: |
Asst. Treas. |
|
|
WILMINGTON TRUST COMPANY, as Trustee |
||
|
By: |
/s/ A NITA D ALLAGO |
|
|
|
||
|
Name: |
Anita Dallago |
|
|
Title: |
Financial Services Officer |
|
|
/s/ L AUREL A. H OLSCHUH |
||
|
Laurel A. Holschuh, as Trustee |
||
|
/s/ B ARBARA S. B RETT |
||
|
Barbara S. Brett, as Trustee |
||
4
DECLARATION OF TRUST
AND
TRUST AGREEMENT
This DECLARATION OF TRUST AND TRUST AGREEMENT, dated as of March 4, 2003 (this “Trust Agreement”), among (i) Wells Fargo & Company, a Delaware corporation (the “Depositor”); (ii) Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee; and (iii) Laurel A. Holschuh and Barbara S. Brett, each an individual, as trustees (each of such trustees in (ii) and (iii) a “Trustee” and collectively, the “Trustees”). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the “Trust”) shall be known as “Wells Fargo Capital X” in which name the Trustees, or the Depositor to the extent provided herein, may engage in the transactions contemplated hereby, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge receipt of such amount in trust from the Depositor, which amount shall constitute the initial trust estate. The Trustees hereby declare that they will hold the trust estate in trust for the Depositor. It is the intention of the parties hereto that the Trust created hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq. (the “Statutory Trust Act”), and that this document constitute the governing instrument of the Trust. The Trustees are hereby authorized and directed to execute and file a certificate of trust with the Delaware Secretary of State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor and the Trustees will enter into an Amended and Restated Declaration of Trust and Trust Agreement (herein, the “Amended and Restated Trust Agreement”), satisfactory to each such party and substantially in the form included as an exhibit to the 1933 Act Registration Statement (as defined below), to provide for the contemplated operation of the Trust created hereby and the issuance of the Preferred Securities and Common Securities referred to therein. Prior to the execution and delivery of such Amended and Restated Trust Agreement, the Trustees shall not have any duty or obligation hereunder or with respect to the trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior to such execution and delivery of any licenses, consents or approvals required by applicable law or otherwise. Notwithstanding the foregoing, the Trustees may take all actions deemed proper and necessary to effect the transactions contemplated herein.
4. The Depositor and the Trustees hereby authorize and direct the Depositor, as the agent of the Trust, (i) to file with the Securities and Exchange Commission (the “Commission”) and execute, in each case on behalf of the Trust, (a) the Registration Statement on Form S-3 (the “1933 Act Registration Statement”) (including any pre-effective or post-effective amendments to the 1933 Act Registration Statement) relating to the registration under the Securities Act of 1933, as amended (the “1933 Act”), of the Preferred Securities of the Trust and certain other securities; (b) any preliminary prospectus or prospectus or supplement thereto relating to the Preferred Securities required to be filed pursuant to Rule 424 under the 1933 Act; and (c) a Registration
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as of the day and year first above written.
|
WELLS FARGO & COMPANY, as Depositor |
||
|
By: |
/s/ B ARBARA S. B RETT |
|
|
|
||
|
Name: |
Barbara S. Brett |
|
|
Title: |
Assistant Tresurer |
|
|
WILMINGTON TRUST COMPANY, as Trustee |
||
|
By: |
/s/ J AMES P. L AWLER |
|
|
|
||
|
Name: |
James P. Lawler |
|
|
Title: |
Vice President |
|
|
/s/ L AUREL A. H OLSCHUH |
||
|
Laurel A. Holschuh, as Trustee |
||
|
/s/ B ARBARA S. B RETT |
||
|
Barbara S. Brett, as Trustee |
||
4
EXHIBIT 4(rr)
WELLS FARGO & COMPANY,
[ ],
as Unit Agent and as Collateral Agent,
and [ ], as Trustee
and [ ], as Paying Agent
under the Indenture referred to herein,
AND
THE HOLDERS FROM TIME TO TIME
OF THE UNITS DESCRIBED HEREIN
UNIT AGREEMENT
Dated as of **[ , 20 ]
TABLE OF CONTENTS
|
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
|
|
SECTION 1.01. Definitions |
1 |
|
|
ARTICLE 2 UNITS |
9 |
|
|
SECTION 2.01. Forms Generally |
9 |
|
|
SECTION 2.02. Form of Certificate of Authentication and Countersignature |
9 |
|
|
SECTION 2.03. Amount Unlimited; Issuable in Series |
9 |
|
|
SECTION 2.04. Denominations |
11 |
|
|
SECTION 2.05. Rights and Obligations Evidenced by the Units |
11 |
|
|
SECTION 2.06. Execution, Authentication, Delivery and Dating |
11 |
|
|
SECTION 2.07. Temporary Unit Certificates |
11 |
|
|
SECTION 2.08. Registration of Transfer and Exchange; Global Units |
12 |
|
|
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit Certificates |
14 |
|
|
SECTION 2.10. Persons Deemed Owners |
16 |
|
|
SECTION 2.11. Cancellation |
16 |
|
|
SECTION 2.12. Exchange of Global Units and Definitive Units |
17 |
|
|
ARTICLE 3 THE PURCHASE CONTRACTS |
18 |
|
|
SECTION 3.01. Form and Execution of Purchase Contracts; Temporary Purchase Contracts |
18 |
|
|
SECTION 3.02. Number Unlimited Issuable in Series |
19 |
|
|
SECTION 3.03. Countersignature, Execution on Behalf of Holder and Delivery of Purchase Contracts |
21 |
|
|
SECTION 3.04. Further Provisions Relating to Issuance of Purchase Contracts |
23 |
|
|
SECTION 3.05. Purchase of Purchase Contract Property; Optional Acceleration of Purchase Obligations; Authorization of Agent by Holder; Transferees Bound |
23 |
|
|
SECTION 3.06. Payment of Purchase Price |
25 |
|
|
SECTION 3.07. Delivery of Purchase Contract Property or Other Amounts |
27 |
|
|
SECTION 3.08. Charges and Taxes |
28 |
|
|
ARTICLE 4 REMEDIES |
28 |
|
|
SECTION 4.01. Acceleration of Obligations |
28 |
|
|
SECTION 4.02. Unconditional Rights under Purchase Contracts; Limitation on Proceedings by Holders |
28 |
|
|
SECTION 4.03. Restoration of Rights and Remedies |
29 |
|
|
SECTION 4.04. Rights and Remedies Cumulative |
29 |
|
|
SECTION 4.05. Delay or Omission Not Waiver |
30 |
|
|
SECTION 4.06. Waiver of Past Defaults |
30 |
|
|
SECTION 4.07. Undertaking for Costs |
30 |
i
|
SECTION 4.08. Waiver of Stay or Extension Laws |
31 |
|
|
SECTION 4.09. Agent May File Proofs of Claims |
31 |
|
|
SECTION 4.10. Suits for Enforcement |
31 |
|
|
SECTION 4.11. Control by Holders |
32 |
|
|
ARTICLE 5 SECURITY INTERESTS AND COLLATERAL AGENT |
32 |
|
|
SECTION 5.01. Granting of Security Interests; Rights and Remedies of Collateral Agent; Perfection |
32 |
|
|
SECTION 5.02. Distribution of Principal and Interest; Release of Collateral |
33 |
|
|
SECTION 5.03. Certain Duties and Responsibilities of the Collateral Agent |
34 |
|
|
SECTION 5.04. Knowledge of the Collateral Agent |
35 |
|
|
SECTION 5.05. Certain Rights of Collateral Agent |
35 |
|
|
SECTION 5.06. Compensation and Reimbursements |
36 |
|
|
SECTION 5.07. Corporate Collateral Agent Required Eligibility |
36 |
|
|
SECTION 5.08. Resignation and Removal; Appointment of Successor |
37 |
|
|
SECTION 5.09. Acceptance of Appointment by Successor |
38 |
|
|
SECTION 5.10. Merger, Conversion, Consolidation or Succession to Business |
39 |
|
|
SECTION 5.11. Money Held in Trust |
39 |
|
|
ARTICLE 6 THE AGENT |
39 |
|
|
SECTION 6.01. Certain Duties and Responsibilities |
39 |
|
|
SECTION 6.02. Notice of Default |
40 |
|
|
SECTION 6.03. Certain Rights of Agent |
40 |
|
|
SECTION 6.04. Not Responsible for Recitals or Issuance of Units |
41 |
|
|
SECTION 6.05. May Hold Units |
42 |
|
|
SECTION 6.06. Money Held in Trust |
42 |
|
|
SECTION 6.07. Compensation and Reimbursement |
42 |
|
|
SECTION 6.08. Corporate Agent Required: Eligibility |
43 |
|
|
SECTION 6.09. Resignation and Removal: Appointment of Successor |
43 |
|
|
SECTION 6.10. Acceptance of Appointment by Successor |
44 |
|
|
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business |
45 |
|
|
SECTION 6.12. Appointment of Authenticating Agent |
45 |
|
|
SECTION 6.13. Corporation to Furnish Agent Names and Addresses of Holders |
47 |
|
|
SECTION 6.14. Preservation of Information; Communications to Holders |
48 |
|
|
SECTION 6.15. No Obligation of Holder |
48 |
|
|
SECTION 6.16. Tax Compliance |
49 |
|
|
ARTICLE 7 SUPPLEMENTAL AGREEMENTS |
50 |
|
|
SECTION 7.01. Supplemental Agreements Without Consent of Holders |
50 |
|
|
SECTION 7.02. Supplemental Agreements with Consent of Holders |
51 |
|
|
SECTION 7.03. Execution of Supplemental Agreements |
51 |
|
|
SECTION 7.04. Effect of Supplemental Agreements |
52 |
ii
|
SECTION 7.05. Reference to Supplemental Agreements |
52 |
|
|
ARTICLE 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
52 |
|
|
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions |
52 |
|
|
SECTION 8.02. Rights and Duties of Successor Corporation |
53 |
|
|
SECTION 8.03. Opinion of Counsel to Agent |
53 |
|
|
ARTICLE 9 COVENANTS |
53 |
|
|
SECTION 9.01. Performance under Purchase Contracts |
53 |
|
|
SECTION 9.02. Maintenance of Office or Agency |
53 |
|
|
SECTION 9.03. Money for Payments to Be Held in Trust |
54 |
|
|
SECTION 9.04. Statements of Officers of the Corporation as to Default |
55 |
|
|
ARTICLE 10 REDEMPTIONS |
55 |
|
|
SECTION 10.01. Optional Redemption of Purchase Contracts; Redemption Upon Redemption of Debt Securities |
55 |
|
|
SECTION 10.02. Notice of Redemption; Partial Redemptions |
56 |
|
|
SECTION 10.03. Payment of Purchase Contracts Called for Redemption |
57 |
|
|
SECTION 10.04. Exclusion of Certain Purchase Contracts from Eligibility for Selection for Redemption |
57 |
|
|
ARTICLE 11 MISCELLANEOUS PROVISIONS |
58 |
|
|
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of the Corporation Immune from Liability |
58 |
|
|
SECTION 11.02. Compliance Certificates and Opinions |
58 |
|
|
SECTION 11.03. Form of Documents Delivered to Agent or Collateral Agent |
59 |
|
|
SECTION 11.04. Acts of Holders |
59 |
|
|
SECTION 11.05. Notices, Etc. |
60 |
|
|
SECTION 11.06. Notices to Holders; Waiver |
60 |
|
|
SECTION 11.07. Effect of Headings and Table of Contents |
61 |
|
|
SECTION 11.08. Successors and Assigns |
61 |
|
|
SECTION 11.09. Separability Clause |
61 |
|
|
SECTION 11.10. Benefits of Agreement |
61 |
|
|
SECTION 11.11. Governing Law |
61 |
|
|
SECTION 11.12. Legal Holidays |
62 |
|
|
SECTION 11.13. Counterparts |
62 |
|
|
SECTION 11.14. Appointment of Certain Agents |
62 |
|
|
SECTION 11.15. Inspection of Agreement |
62 |
iii
UNIT AGREEMENT, dated as of , 20 , by and among WELLS FARGO & COMPANY, a Delaware corporation (the “Corporation”), , a banking corporation (“ ”), acting solely as unit agent and collateral agent under this Agreement (in its capacity as unit agent, the “Agent”, and, in its capacity as collateral agent, the “Collateral Agent”), except to the extent that this Agreement specifically states that the Agent is acting in another capacity, , as trustee under the Indenture described below (the “Trustee”) and, as paying agent under the Indenture, (the “Paying Agent”), and the holders from time to time of the Units described herein.
WHEREAS, the Corporation has entered into an Indenture dated as of with the Trustee (as further supplemented or amended from time to time, the “Indenture”);
WHEREAS, the Corporation has duly authorized the issuance, from time to time, pursuant to the Indenture of [senior] [subordinated] debt securities (“Debt Securities”);
WHEREAS, the Corporation has duly authorized the issuance, from time to time, of Purchase Contracts (“Purchase Contracts”) requiring the holder thereof to purchase or sell (i) securities of the Corporation or one of its affiliated or securities of an entity unaffiliated with the Corporation, a basket of such securities, an index or indices of such securities or any combination of the above, (ii) currencies or (iii) commodities, in each case on terms to be determined at the time of sale;
WHEREAS, the Corporation desires to provide for the issuance of units (“Units”) consisting of one or more Purchase Contracts, Debt Securities, or any combination thereof;
WHEREAS, the parties hereto wish to secure the performance by the holders of Units consisting of Debt Securities and Purchase Contracts of their obligations under such Purchase Contracts and the observance and performance of the covenants and agreements contained herein and in such Purchase Contracts;
NOW, THEREFORE, in consideration of the premises and the purchases of the Units by the holders thereof, the Corporation, the Agent, the Collateral Agent, the Trustee and the Paying Agent mutually covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
1
(ii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States in effect at the time of any computation; and
(iii) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
“Accelerated Settlement Date” with respect to a Purchase Contract of any series, means any date to which the Corporation accelerates the obligations of the Holder of the Units of which such Purchase Contract constitutes a part, subject to any limitations as may be specified pursuant to Section 3.02.
“Acceleration Notice”, has the meaning specified in Section 3.05(b).
“Act”, with respect to any Holder, has the meaning specified in Section 11.04.
“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”, 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.
“Agent” means the Person named as the “Agent” in the first paragraph of this Agreement until a successor Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Agent” shall mean such successor Person.
“Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.
“Authenticating Agent” means any Person authorized by the Agent to act on behalf of the Agent to countersign and execute Purchase Contracts.
“Bankruptcy Event” means any of the following events: (i) a court having jurisdiction in the premises shall enter a decree or order for relief with respect to the Corporation in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Corporation or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (ii) the Corporation shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
2
official) of the Corporation or for any substantial part of its property, or make any general assignment for the benefit of creditors.
“Board of Directors”, means the board of directors of the Corporation or any other committee duly authorized to act on its behalf with respect to this Agreement.
“Board Resolution”, means one or more resolutions, certified by the Secretary or an Assistant Secretary of the Corporation to have been duly adopted or consented to by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Agent or the Collateral Agent, as the case may be. Where any provision of this Agreement refers to action to be taken pursuant to a Board Resolution, such action may be taken by any committee of the Board or the Corporation or any officer or employee of the Corporation authorized to take such action by a Board Resolution.
“Business Day” means any day that is not a Saturday or Sunday or a legal holiday in New York, New York or Minneapolis, Minnesota or a day on which banking institutions in New York, New York or Minneapolis, Minnesota are authorized or required by law, regulation or executive order to be closed.
“Cash Settlement” has the meaning set forth in Section 3.06(a)(i).
“Closed Purchase Contract” means any Purchase Contract with respect to which a purchase or sale of, or other settlement with respect to, the Purchase Contract Property has occurred pursuant to Article Four or that has been redeemed or is otherwise not Outstanding.
“Collateral” has the meaning specified in Section 5.01(a).
“Collateral Agent” means the Person named as the “Collateral Agent” in the first paragraph of this Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Collateral Agent” shall mean such successor Person.
“Corporate Trust Office” means the office of the Agent or the Collateral Agent, as appropriate, at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at .
“Corporation” means the Person named as the “Corporation” in the first paragraph of this Agreement until a successor Person shall have become such pursuant to the applicable provisions of this Agreement, and thereafter the “Corporation” shall mean such successor Person.
“Debt Securities” has the meaning stated in the second recital in this Agreement and more particularly means any Debt Securities originally issued as part of a Unit of any series.
3
“Debt Security Register” with respect to any Debt Securities constituting a part of the Units of any series means the security register of the Corporation maintained by the Trustee pursuant to the Indenture.
“Debt Security Settlement” has the meaning set forth in Section 3.06 (a) (ii) .
“Default” means an Event of Default under the Indenture or a Purchase Contract Default.
“Definitive Securities” means any Security in definitive form.
“Definitive Unit” means any Unit comprised of Definitive Securities.
“Depositary” means, with respect to Registered Units, DTC, or any successor, or, with respect to any Unregistered Units, a common depositary for Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System, or Cedel Bank, societe anonyme, or any other relevant depositary named in an Issuer Order, in each case, as the Holder of any Global Units.
“DTC” means The Depository Trust Company or its nominee.
“Event of Default”, with respect to the Debt Securities, has the meaning set forth in the Indenture.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Global Debt Security” means a global Debt Security in bearer or registered form originally issued as part of a Global Unit of any series.
“Global Purchase Contract” means a global Purchase Contract in bearer or registered form originally issued as part of a Global Unit of any series.
“Global Security” means any of a Global Debt Security or a Global Purchase Contract.
“Global Unit” means any Unit that comprises one or more Global Securities and is represented by a global Unit Certificate in bearer or registered form.
“Holder” means (i) in the case of any Registered Security or Registered Unit, the Person in whose name such Registered Security or the Registered Securities constituting a part of such Registered Unit are registered on the relevant Security Register and (ii) in the case of any Unregistered Security or Unregistered Unit, the bearer of such Security or Unit, provided that, in the case of (i) above, so long as the Registered Securities constituting part of such Units are not separable, “Holder” shall mean the Person in whose name a Registered Security constituting a part of such Unit is registered on the Security Register specified pursuant to Section 2.03.
4
“Indenture” has the meaning specified in the first recital in this Agreement.
“Initial Acceleration Date” means, with respect to Purchase Contracts of any series, the initial date, if any, specified pursuant to Section 3.02 on which such Purchase Contracts may be accelerated pursuant to Section 3.05 hereof.
“Interest Payment Date”, with respect to any Debt Security, has the meaning set forth in the Indenture or in any document executed pursuant to the terms of the Indenture relating to such Debt Security.
“Issuer Order” or “Issuer Request”, means a written order or request signed in the name of the Corporation by the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice President, the Treasurer, an Assistant Treasurer or any other person authorized by the Board of Directors and delivered to the Agent or the Collateral Agent, as the case may be.
“Letter of Representations” means, as of any date, the Letter of Representations or Letters of Representations to DTC in effect as of such date from the Agent relating to the Units covered by this Agreement.
“Minimum Acceleration Amount” means the minimum number of Purchase Contracts of any series as specified pursuant to Section 3.02 that may be subject to acceleration pursuant to Section 3.05.
“Minimum Remaining Amount” means the minimum number of Purchase Contracts of any series as specified pursuant to Section 3.02 that must remain outstanding immediately following any acceleration pursuant to Section 3.05.
“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 the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Corporation and delivered to the Agent or the Collateral Agent, as the case may be.
“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Corporation and who shall otherwise be satisfactory to the Agent or the Collateral Agent, as the case may be.
“Optional Definitive Unit Request” has the meaning set forth in Section 2.12.
“Outstanding”, with respect to any Unit, Debt Security or Purchase Contract means, as of the date of determination, all Units, Debt Securities or Purchase Contracts as the case may be, evidenced by Units theretofore authenticated, countersigned, executed and delivered under this Agreement, except:
5
(A) Units, Debt Securities or Purchase Contracts theretofore deemed cancelled, cancelled by the Agent or Trustee, as the case may be, or delivered to the Agent or Trustee, as the case may be, for cancellation, in each case pursuant to the provisions of this Agreement or the Indenture;
(B) Closed Purchase Contracts; and
(C) Units, Debt Securities or Purchase Contracts evidenced by Unit Certificates in exchange for or in lieu of which other Unit Certificates have been authenticated, countersigned, executed and delivered pursuant to this Agreement, other than any such Units, Debt Securities or Purchase Contracts, as the case may be, evidenced by a Unit Certificate in respect of which there shall have been presented to the Agent proof satisfactory to it that such Unit Certificate is held by a bona fide purchaser in whose hands the Units, Debt Securities or Purchase Contracts, as the case may be, evidenced by such Unit Certificate are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite number of Outstanding Units, Debt Securities and Purchase Contracts, as the case may be, have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Units, Debt Securities and Purchase Contracts owned by the Corporation or any Affiliate of the Corporation shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Agent shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Units, Debt Securities and Purchase Contracts which the Agent knows to be so owned shall be so disregarded. Units, Debt Securities and Purchase Contracts that are so owned but that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Agent the pledgee’s right so to act with respect to such Units, Debt Securities and Purchase Contracts and that the pledgee is not the Corporation or any Affiliate of the Corporation.
“Paying Agent” means any Person authorized by the Corporation to pay the Settlement Amount, redemption price or any other sums payable by the Corporation with respect to any Purchase Contracts; provided that such Person shall be a bank or trust company organized and in good standing under the laws of the United States or any state in the United States, having (together with its parent) capital, surplus and undivided profits aggregating at least $50,000,000 or any foreign branch or office of such a bank or trust company, and, subject to the foregoing, may be an Affiliate of the Corporation.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Pledged Items” means, as of any date, any Debt Securities constituting a part of the Units of any series or any and all other securities, instruments or other property as may be specified pursuant to Section 3.02.
6
“Purchase Contract Default” with respect to Purchase Contracts of any series means the occurrence of any of the following events: (i) failure of the Corporation to deliver the Purchase Contract Property or the cash value thereof for such Purchase Contracts against tender of payment therefor on any Settlement Date, in the case of Purchase Contracts that obligate the Corporation to sell the Purchase Contract Property, (ii) failure of the Corporation to pay the Settlement Amount for such Purchase Contracts when the same becomes due and payable, in the case of Purchase Contracts that obligate the Corporation to purchase the Purchase Contract Property, (iii) failure on the part of the Corporation duly to observe or perform any other of the covenants or agreements on its part in such Purchase Contracts or in this Agreement with respect to such Purchase Contracts and continuance of such failure for a period of 60 days after the date on which written notice of such failure, requiring the Corporation to remedy the same, shall have been given to the Corporation and the Agent by Holders of at least 25% of the affected Purchase Contracts at the time Outstanding, (iv) a Bankruptcy Event or (v) any other Purchase Contract Default provided in any supplemental agreement under which such series of Purchase Contracts is issued or in the form of such Purchase Contracts.
“Purchase Contract Property” with respect to a Purchase Contract of any series has the meaning specified pursuant to Section 3.02.
“Purchase Contract Register” and “Purchase Contract Registrar” have the respective meanings specified in Section 2.08.
“Purchase Contracts” has the meaning stated in the third recital in this Agreement and more particularly means any Purchase Contracts constituting a part of the Units of any series countersigned, executed and delivered in accordance with this Agreement.
“Purchase Price” of any Purchase Contract that obligates the Corporation to sell, and the Holder to purchase, the Purchase Contract Property has the meaning specified pursuant to Section 3.02.
“Registered Debt Security” means any Debt Security registered on the Debt Security Register.
“Registered Purchase Contract” means any Purchase Contract registered on the Purchase Contract Register.
“Registered Security” means any of a Registered Debt Security or Registered Purchase Contract.
“Registered Unit” means any Unit consisting of Registered Securities.
“Regular Record Date” has the meaning specified pursuant to Section 2.03.
7
“Responsible officer,” with respect to the Agent or Collateral Agent, means the chairman or vice-chairman of the board of directors, the chairman or vice-chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any senior trust officer, any trust officer or assistant trust officer, the controller and any assistant controller or other officer of the Agent or Collateral Agent customarily performing functions similar to those performed by any of the above-designated officers and also means, with respect to a particular corporate trust or agency matter, any other officer to whom such matter is referred because of his knowledge and familiarity with the particular subject.
“Security” means any of a Debt Security or a Purchase Contract.
“Security Register” means either of the Debt Security Register or the Purchase Contract Register.
“Settlement Amount” of any Purchase Contract that obligates the Corporation to purchase, and the Holder to sell, the Purchase Contract Property has the meaning specified pursuant to Section 3.02.
“Settlement Date” means the Stated Settlement Date and any Accelerated Settlement Date.
“SRO” has the meaning specified in Section 2.01.
“Stated Settlement Date” of any Purchase Contract of any series has the meaning specified pursuant to Section 3.02.
“Trustee”, with respect to any Debt Securities, means the Person acting as Trustee under the Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of such Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“Unit” has the meaning stated in the fourth recital to this Agreement and more particularly the collective rights and obligations of the Corporation and a Holder with respect to the Securities comprising such Unit, as specified pursuant to Section 2.03.
“Unit Certificate” means a certificate evidencing the rights and obligations of the Corporation and a Holder with respect to the number of Units specified on such certificate.
“Unregistered Security” means any Security other than a Registered Security.
“Unregistered Unit” means any Unit other than a Registered Unit.
“Unsettled Purchase Contract” means any Purchase Contract that has not been redeemed or with respect to which settlement has not occurred pursuant to Article Four.
8
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally. The Units of each series shall be substantially in the form of Exhibit A or in such form (not inconsistent with this Agreement) as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution, an Officers’ Certificate detailing such establishment). The Unit Certificates may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the Securities constituting a part thereof may approve (execution thereof to be conclusive evidence of such approval) and that 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 self-regulatory organization (an “SRO”) on which the Units of such series may be listed or quoted or of any securities depository or to conform to general usage.
The Unit Certificates 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 Unit Certificates, as evidenced by their execution of the Securities constituting a part of the Units evidenced by such Unit Certificates.
SECTION 2.02. Form of Certificate of Authentication and Countersignature. The form of the Trustee’s certificate of authentication of any Debt Securities and the form of the Agent’s execution on behalf of the Holder and countersignature of any Purchase Contracts, each constituting a part of the Units of any series, shall be substantially in such form as set forth in the Indenture or this Agreement, as applicable.
SECTION 2.03. Amount Unlimited; Issuable in Series. (a) The aggregate number of Units that may be authenticated, countersigned and delivered under this Agreement is unlimited.
The Units may be issued in one or more series. There shall be established, upon the order of the Corporation (contained in an Issuer Order) or pursuant to such procedures acceptable to the Agent as may be specified from time to time by an Issuer Order, prior to the initial issuance of Units of any series:
(i) the designation of the Units of the series, which shall distinguish the Units of the series from the Units of all other series;
(ii) any limit upon the aggregate number of Units of the series that may be authenticated and delivered under this Agreement (except for Units authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Units of the series pursuant to Section 2.07, 2.08, 2.09 or 2.12);
9
(iii) the designation of the Securities constituting a part of the Units of the series;
(iv) whether and on what terms any Securities constituting a part of the Units of the series may be separated from the Units of the series and the other Securities constituting a part of such Units;
(v) in the case of Units of a series consisting in any part of Purchase Contracts, the information specified pursuant to Section 3.02;
(vi) whether the Units of the series will be issuable as Registered Units (and if so, whether such Units will be issuable in global form) or Unregistered Units (and if so, whether such Units will be issuable in global form), or any combination of the foregoing, any restrictions applicable to the offer, sale or delivery of Unregistered Securities and, if other than as provided in Section 2.08, the terms upon which Unregistered Units of any series may be exchanged for Registered Units of such series and vice versa;
(vii) in the case of Units issued as Registered Units consisting of Registered Securities that may not be separated from the other Registered Securities constituting a part of such Units, the designation of the Security Register to be used to determine the Holder of such Units:
(viii) if the units of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Unit of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(ix) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Units of such series;
(x) any other events of default or covenants with respect to the Units of such series; and
(xi) any other terms of the series (which terms shall not be inconsistent with the provisions of this Agreement).
All Units of any one series shall be substantially identical, except as may otherwise be provided by or pursuant to the Issuer Order or procedures referred to above. All Units of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Agreement, if so provided by or pursuant to such Board Resolution or such Issuer Order.
10
SECTION 2.04. Denominations. Units of any series shall be issuable only in denominations of a single Unit and any integral multiple thereof.
SECTION 2.05. Rights and Obligations Evidenced by the Units. Units of any series shall evidence the ownership by the Holder thereof of (a) the principal amount of Debt Securities, if any, specified on the face of a Unit Certificate representing Definitive Units or in Schedule A attached to any Unit Certificate representing Global Units and (b) the rights and obligations of the Corporation and the Holder under the number of Purchase Contracts, if any, specified on the face of a Unit Certificate representing Definitive Units or in Schedule A attached to any Unit Certificate representing Global Units.
SECTION 2.06. Execution, Authentication, Delivery and Dating. Upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Corporation may deliver, subject to any limitation on the aggregate principal amount of Debt Securities, if any, or the Purchase Contracts, if any, represented thereby, an unlimited number of Unit Certificates (including the Securities executed by the Corporation constituting the Units evidenced by such Unit Certificates) to the Trustee and/or the Agent for authentication, countersignature or execution, as the case may be, of the Securities comprised by such Units, together with its Issuer Orders for authentication, countersignature or execution of such Securities, and the Trustee in accordance with the Indenture and the Issuer Order of the Corporation shall authenticate the Debt Securities, if any, constituting a part of the Units evidenced by such Unit Certificates and the Agent in accordance with this Agreement and the Issuer Order of the Corporation shall countersign and execute on behalf of the Holders thereof the Purchase Contracts, if any, constituting a part of the Units evidenced by such Unit Certificates, and each shall deliver such Unit Certificates upon the order of the Corporation.
Any Debt Securities constituting a part of the Units of any series shall be executed on behalf of the Corporation in accordance with the terms of the Indenture. Any Purchase Contracts constituting a part of the Units shall be executed on behalf of the Corporation in accordance with Section 3.01.
SECTION 2.07. Temporary Unit Certificates. Pending the preparation of Unit Certificates for any series, the Corporation may execute and deliver to the Trustee and/or the Agent, as appropriate, and the Trustee and/or the Agent, as appropriate, shall authenticate, countersign, execute on behalf of the Holder and deliver, as appropriate, in lieu of such Unit Certificates, temporary Unit Certificates for such series. Temporary Unit Certificates shall be in substantially the form of the Unit Certificates of such series, but with such omissions, insertions and variations as may be appropriate for temporary Unit Certificates, all as may be determined by the Corporation with the concurrence of the Trustee and/or Agent, as appropriate, as evidenced by the execution and authentication and/or countersignature of the Securities constituting a part of the Units evidenced thereby, as applicable.
11
If temporary Unit Certificates for any series are issued, the Corporation will cause definitive Unit Certificates for such series to be prepared without unreasonable delay. After the preparation of such definitive Unit Certificates, the temporary Unit Certificates shall be exchangeable therefor upon surrender of temporary Registered Units of such series at the Corporate Trust Office, at the expense of the Corporation and without charge to any Holder and, in the case of Unregistered Units, at any agency maintained for such purpose as specified pursuant to Section 2.03. Upon surrender for cancellation of any one or more temporary Unit Certificates, the Corporation shall execute and deliver to the Trustee and/or the Agent, and the Trustee and/or the Agent shall authenticate, countersign, execute on behalf of the Holder and deliver, as appropriate, in exchange therefor definitive Unit Certificates of the same series of like tenor, of authorized denominations and evidencing a like number of Units as the temporary Unit Certificate or Certificates so surrendered. Until so exchanged, the temporary Unit Certificates of any series shall in all respects evidence the same benefits and the same obligations under any Debt Securities and Purchase Contracts constituting parts of such Units, the Indenture and this Agreement as definitive Unit Certificates of such series, unless otherwise specified pursuant to Section 2.03.
SECTION 2.08. Registration of Transfer and Exchange; Global Units. The Agent shall keep at its Corporate Trust Office for each series of Registered Units a register (the register maintained in such office being herein referred to as the “Purchase Contract Register”) in which, subject to such reasonable regulations as it may prescribe, the Agent shall provide for the registration of Registered Purchase Contracts, if any, constituting a part of such series and of transfers of such Purchase Contracts (the Agent, in such capacity, the “Purchase Contract Registrar”).
At the option of the Holder thereof, Registered Units of any series (other than a global Registered Unit, except as set forth below) may be transferred or exchanged for a Registered Unit or Registered Units of such series having authorized denominations evidencing the number of Units transferred or exchanged, upon surrender of such Registered Units to be so transferred or exchanged at the Corporate Trust Office of the Agent upon payment, if the Corporation shall so require, of the charges hereinafter provided. If the Units of any series are issued in both registered and unregistered form, except as otherwise specified pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Units of such series may be exchanged for Registered Units of such series having authorized denominations and evidencing the number of Units transferred or exchanged, upon surrender of such Unregistered Units to be so transferred or exchanged at the Corporate Trust Office of the Agent and upon payment, if the Corporation shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Units of any series are issued in more than one authorized denomination, except as otherwise specified pursuant to Section 2.03, such Unregistered Units may be exchanged for Unregistered Units of such series having authorized denominations evidencing the number of Units exchanged, upon surrender of such Unregistered Units to be so exchanged at the Corporate Trust Office of the Agent or as specified pursuant to Section 2.03, and upon payment, if the Corporation shall so require, of the charges hereinafter provided. Unless otherwise specified pursuant to Section 2.03, Registered Units of any series may not be exchanged for Unregistered Units of such series.
12
Whenever any units are so surrendered for transfer or exchange, the Corporation shall execute, and the Trustee and/or the Agent, as appropriate, shall authenticate, countersign or execute, as the case may be, and deliver the Units which the Holder making the transfer or exchange is entitled to receive. All Units (including the Securities constituting part of such Units) surrendered upon any exchange or transfer provided for in this Agreement shall be promptly cancelled and disposed of by the Agent and the Agent will deliver a certificate of disposition thereof to the Corporation and to the Trustee as applicable.
Unregistered Units shall be transferable by delivery.
Subject to Section 2.12, if the Corporation shall establish pursuant to Section 2.03 that the Units of a series are to be evidenced by one or more Global Units, then the Corporation shall execute and the Agent and Trustee shall, in accordance with this Section and Section 2.06, countersign, authenticate and execute, as appropriate, and deliver one or more global Unit Certificates that (i) shall evidence all or a portion of the Units of such series issued in such form and not yet cancelled, (ii) in the case of Registered Units, shall be registered in the name of the Depositary for such Units or the nominee of such Depositary, (iii) shall be delivered by the Agent to the Depositary for such Units or pursuant to such Depositary’s instructions and (iv) in the case of Registered Units, shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Units in definitive registered form, this Unit Certificate may not be transferred except as a whole by the Depositary to the 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 Depositary or a nominee of such successor Depositary.” Whenever Global Units of any series are exchanged for Definitive Units of such series or whenever Definitive Units of any series are exchanged for Global Units of such series, the Agent shall cause, as applicable: (i) Schedule A of the Global Debt Security, if any, to be endorsed to reflect any increase or decrease, as the case may be, in the principal amount of Debt Securities, if any, that are comprised by Global Units as a result of such exchange and (ii) Schedule A of the Global Purchase Contract, if any, to be endorsed to reflect any increase or decrease, as the case may be, in the number of Purchase Contracts, if any, that are comprised by Global Units as a result of such exchange, whereupon such number of Global Units shall be decreased or increased for all purposes by the number so exchanged, as noted.
All Unit Certificates authenticated, countersigned and executed upon any registration of transfer or exchange of a Unit Certificate shall evidence the ownership of the principal amount of Debt Securities, if any, specified on the face thereof and the rights and obligations of the Holder and the Corporation under the number of Purchase Contracts, if any, specified on the face thereof and shall be entitled to the same benefits, and be subject to the same obligations, under the Indenture and this Agreement as the Units evidenced by the Unit Certificate surrendered upon such registration of transfer or exchange.
Every Unit Certificate presented or surrendered for registration of transfer or for exchange shall (if so required by the Corporation or the Agent) be duly endorsed, or be
13
accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Agent, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of a Unit, but the Corporation and the Agent may require payment from the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Units, other than any exchanges pursuant to Section 2.09 not involving any transfer.
Notwithstanding the foregoing, and subject to Section 2.8 of the Indenture, the Corporation shall not be obligated to execute and deliver to the Trustee or the Agent, and neither the Trustee, under the terms of the Indenture, or the Agent hereunder shall be obligated to authenticate, countersign or execute on behalf of the Holder any Unit Certificate presented or surrendered for registration of transfer or for exchange of any Debt Securities or Purchase Contracts evidenced thereby or any Unit Certificate evidencing a Definitive Unit to be issued in exchange for interests in Global Units or to reflect any increase or decrease in a Global Unit, Global Debt Security or Global Purchase Contract (i) during the period beginning any time on or after the opening of business 15 days before the day of mailing of a notice of redemption or of any other exercise of any right held by the Corporation with respect to the Unit (or any Security constituting a part of the Units of such series) and ending at the close of business on the day of the giving of such notice, (ii) that evidences or would evidence any such Unit or Security selected or called for redemption or with respect to which such right has been exercised or (iii) at any given date, if such date is on or after any date that is after the Settlement Date or the date of redemption, as applicable, with respect to the Purchase Contracts, if any, evidenced or to be evidenced by such Unit Certificate, except with respect to any Registered Debt Securities or portions thereof that remain or will remain Outstanding following such Settlement Date or date of redemption or (iv) at any other date specified pursuant to Section 2.03.
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit Certificates. If any mutilated Unit Certificate is surrendered to the Agent, the Corporation shall execute and deliver to the Trustee and/or the Agent, as appropriate, and the Trustee and/or the Agent shall authenticate, countersign, execute on behalf of the Holder and deliver, as appropriate, in exchange therefor new Securities comprised by Units of the same series, of like tenor, and evidenced by a new Unit Certificate evidencing the same number of Units and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee and/or the Agent, as appropriate, (i) evidence to their satisfaction of the destruction, loss or theft of any Unit Certificate and (ii) such security or indemnity as may be required by them to hold each of them and any agent of any of them harmless, then, in the absence of notice to the Corporation and the Trustee and/or the Agent, as appropriate, that such Unit Certificate has been acquired by a bona fide purchaser, the Corporation shall execute and deliver to the Trustee and/or the Agent, as appropriate, and the Trustee (in accordance with the provisions of the Indenture) and/or the Agent (in accordance with the provisions hereof) shall
14
authenticate, countersign, execute on behalf of the Holder and deliver to the Holder, as appropriate, in lieu of any such destroyed, lost or stolen Unit Certificate, new Securities comprised by Units of the same series, of like tenor, and evidenced by a new Unit Certificate evidencing the same number of Units and bearing a number not contemporaneously outstanding.
Unless otherwise specified pursuant to Section 2.03, notwithstanding the foregoing, the Corporation shall not be obligated to execute and deliver to the Trustee or the Agent, and neither the Trustee (under the Indenture), or the Agent shall be obligated to authenticate, countersign or execute on behalf of the Holder, or deliver to the Holder, a new Unit Certificate (or any Security constituting a part of such Unit) (i) during the period beginning any time on or after the opening of business 15 days before the day of mailing of a notice of redemption or of any other exercise of any right held by the Corporation with respect to the Unit (or any Security constituting a part of such Unit) and ending at the close of business on the day of the giving of such notice, (ii) that evidences any Unit or Purchase Contracts selected or called for redemption or with respect to which such right has been exercised, (iii) at any given date, if such date is on or after the Settlement Date or date of redemption, as applicable, with respect to any Purchase Contracts evidenced by such Unit Certificate, except with respect to any Registered Debt Security or portion thereof evidenced by such Unit Certificate that remains or will remain Outstanding following such Settlement Date or date of redemption or (iv) at any other date specified pursuant to Section 2.03. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified in clauses (i) and (ii) of the preceding paragraph, the Agent shall deliver or cause to be delivered on the applicable Settlement Date or redemption date (i) in respect of Purchase Contracts or Debt Securities constituting a part of the Units evidenced by such Unit Certificate that are selected or called for redemption, the redemption price of such Purchase Contracts or Debt Securities or (ii) in respect of Purchase Contracts constituting a part of the Units evidenced by such Unit Certificate with respect to which a Cash Settlement or Debt Security Settlement (or any equivalent manner of settlement) has taken place, (x) the Purchase Contract Property (or cash value thereof), purchase price, cash settlement value, Settlement Amount or other amount, as the case may be, deliverable with respect to such Purchase Contracts (and, in the case of an effective Cash Settlement (or any equivalent manner of settlement), the related Debt Securities) or (y) if a Purchase Contract Default has occurred by virtue of the Corporation’s having failed to deliver the Purchase Contract Property (or cash value thereof), purchase price, cash settlement value, Settlement Amount or other amount, as the case may be, deliverable against tender by the Agent of the purchase price, Purchase Contract Property (or the cash value thereof) or other Settlement Amount or other amount, as the case may be, such purchase price, Purchase Contract Property (or cash value thereof) or Settlement Amount or other amount, if any, received by the Agent from the Holder in respect of the Settlement of such Purchase Contracts or in respect of principal with respect to the related Debt Securities received by the Agent.
Upon the issuance of any new Unit Certificate under this Section, the Corporation and the Agent may require the payment of a sum sufficient to cover any tax or
15
other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Agent) connected therewith.
Every new Unit Certificate executed pursuant to this Section in lieu of any destroyed, lost or stolen Unit Certificate shall constitute an original additional contractual obligation of the Corporation and of the Holder (with respect to any Purchase Contracts constituting a part of the Units evidenced thereby), whether or not the destroyed, lost or stolen Unit Certificate (and the Securities evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Unit Certificates 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 or payment of mutilated, destroyed, lost or stolen Unit Certificates.
SECTION 2.10. Persons Deemed Owners. Prior to due presentment of a Unit Certificate of any series for registration of transfer, the Corporation, the Trustee, the Collateral Agent and the Agent, as appropriate, and any agent of the Corporation, the Trustee, the Collateral Agent or the Agent, as appropriate, may treat the Person in whose name any Registered Security evidenced by such Unit Certificate is registered and, with respect to any Unregistered Security constituting a part of the Units evidenced by such Unit Certificate, the bearer thereof, as the owner of the Units evidenced thereby for all purposes whatsoever, whether or not payment with respect to any Security constituting a part of the Units evidenced thereby shall be overdue and notwithstanding any notice to the contrary. None of the Corporation, the Trustee, the Agent, the Collateral Agent or any agent of the Corporation, the Trustee, the Collateral Agent or the Agent shall be affected by notice to the contrary.
SECTION 2.11. Cancellation. Subject to Section 3.07, all Unit Certificates surrendered for payment, and all Unit Certificates surrendered for redemption of any Debt Securities or Purchase Contracts evidenced thereby, termination or settlement of any Purchase Contracts evidenced thereby, delivery of Purchase Contract Property or registration of transfer or exchange shall, if surrendered to any Person other than the Trustee or the Agent, as appropriate, be delivered to the Trustee and/or the Agent, as appropriate, and, if not already cancelled, any Debt Securities or Purchase Contracts evidenced by such Units shall be promptly cancelled by the Trustee and/or the Agent, as appropriate. The Corporation may at any time deliver to the Trustee and/or the Agent, as appropriate, for cancellation any Unit Certificates previously authenticated, countersigned, executed and delivered hereunder under the Indenture, which the Corporation may have acquired in any manner whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order of the Corporation, be promptly cancelled by the Trustee and/or the Agent, as appropriate. No Unit Certificates shall be authenticated, countersigned and executed in lieu of or in exchange for any Unit Certificates cancelled as provided in this Section, except as permitted by this Agreement. All cancelled Unit Certificates held by the Agent shall be disposed of in accordance with its customary procedures and a certificate of their disposition shall be delivered by the Agent to the
16
Corporation, unless by Issuer Order the Corporation shall direct that cancelled Unit Certificates be returned to it.
If the Corporation or any Affiliate of the Corporation shall acquire any Unit Certificate, such acquisition shall not operate as a cancellation of such Unit Certificate unless and until such Unit Certificate is delivered to the Trustee and/or the Agent, as appropriate, for the purpose of cancellation.
SECTION 2.12. Exchange of Global Units and Definitive Units. In the case of Registered Units, Holders of Global Units of any series shall receive Definitive Units of such series in exchange for interests in such Global Units if DTC notifies the Corporation that it is unwilling or unable to continue as Depositary with respect to the Global Units of such series or if at any time it ceases to be a clearing agency under the Exchange Act, and a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Corporation within 90 days after receipt of such notice or after it becomes aware that DTC has ceased to be such a clearing agency.
If so provided pursuant to Section 2.03, interests in such Global Units may also be transferred or exchanged for Definitive Units upon the request of the Depositary to the Trustee and/or the Agent, as appropriate, to authenticate, countersign and execute, as the case may be, Unit Certificates representing Definitive Units (such request being referred to herein as an “Optional Definitive Unit Request”).
Definitive Units exchanged for interests in Global Units pursuant to this Section 2.12 shall be denominated in the amounts and registered in the name of such Person or Persons as the Depositary shall instruct the Agent and the Trustee, as appropriate.
Whenever Global Units are exchanged for Definitive Units, the Agent shall cause Schedule A of the Global Unit to be endorsed to reflect any decrease in the Global Units as a result of such exchange, whereupon the Global Unit Certificate or Certificates shall be canceled and disposed of in accordance with Section 2.11.
If so specified pursuant to Section 2.03, Holders of Definitive Units may transfer or exchange such Definitive Units for interests in Global Units by depositing the Unit Certificates evidencing such Definitive Units with the Agent and requesting the Agent, and the Trustee, as appropriate, to effect such exchange. The Agent shall notify the Depositary of any such exchange and, upon delivery to the Agent and the Trustee, as appropriate, of the Unit Certificates evidencing the Definitive Units to be so transferred or exchanged, the Agent shall take all actions required with respect to any Global Securities evidenced by such Global Units and Unit Certificates evidencing the remaining Definitive Units, if any, will be issued in accordance with Section 2.08.
17
ARTICLE 3
THE PURCHASE CONTRACTS
SECTION 3.01. Form and Execution of Purchase Contracts; Temporary Purchase Contracts. (a) Purchase Contracts of each series shall be substantially in the forms attached as Exhibit A, as appropriate, or in such form (not inconsistent with this Agreement) as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution, an Officers’ Certificate detailing such establishment, in each case, which may be included in any Board Resolution or Officers’ Certificate made pursuant to this Agreement) or in one or more agreements supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement. The Purchase Contracts may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Corporation executing the same may approve (execution thereof to be conclusive evidence of such approval) and that 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 SRO on which the Purchase Contracts of such series may be listed or quoted, or of any securities depository, or to conform to general usage. Purchase Contracts shall be signed on behalf of the Corporation by the chairman or vice chairman of the Board of Directors, the president, a vice president, the treasurer or an assistant treasurer the Corporation or such other person specifically designated by the Board of Directors or the Executive Committee thereof to execute Purchase Contracts, which signature may or may not be attested by the secretary or an assistant secretary of the Corporation. The signature of any of such officers may be either manual or facsimile. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Purchase Contract that has been duly countersigned and delivered by the Agent.
(b) In case any officer of the Corporation who shall have signed a Purchase Contract, either manually or by facsimile signature, shall cease to be such officer before such Purchase Contract shall have been countersigned and delivered by the Agent to the Corporation or delivered by the Corporation, such Purchase Contract nevertheless may be countersigned and delivered as though the person who signed such Purchase Contract had not ceased to be such officer of the Corporation; and a Purchase Contract may be signed on behalf of the Corporation by any person who, at the actual date of the execution of such Purchase Contract, shall be a proper officer of the Corporation to sign such Purchase Contract, although at the date of the execution of this Agreement any such person was not such officer.
(c) Pending the preparation of final Purchase Contracts of any series, the Corporation may execute and the Agent shall countersign and deliver temporary Purchase Contracts (printed, lithographed, typewritten or otherwise produced, in each case in form satisfactory to the Agent). Such temporary Purchase Contracts shall be issuable substantially in the form of the final Purchase Contracts but with such omissions, insertions and variations
18
as may be appropriate for temporary Purchase Contracts, all as may be determined by the Corporation with the concurrence of the Agent. Such temporary Purchase Contracts may contain such reference to any provisions of this Agreement as may be appropriate. Every such temporary Purchase Contract shall be executed by the Corporation and shall be countersigned by the Agent upon the same conditions and in substantially the same manner, and with like effect, as the final Purchase Contracts. Without unreasonable delay, the Corporation shall execute and shall furnish final Purchase Contracts and thereupon such temporary Purchase Contracts may be surrendered in exchange therefor without charge, and the Agent shall countersign and deliver in exchange for such temporary Purchase Contracts final Purchase Contracts evidencing a like aggregate number of Purchase Contracts of the same series and of like tenor as those evidenced by such temporary Purchase Contracts. Until so exchanged, such temporary Purchase Contracts shall be entitled to the same benefits under this Agreement as final Purchase Contracts.
SECTION 3.02. Number Unlimited Issuable in Series. (a) The aggregate number of Purchase Contracts that may be delivered under this Agreement is unlimited.
(b) The Purchase Contracts may be issued in one or more series. There shall be established in or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers’ Certificate detailing such establishment) or established in one or more agreements supplemental hereto, prior to the initial issuance of Purchase Contracts of any series:
(i) the designation of the Purchase Contracts of the series, which shall distinguish the Purchase Contracts of the series from the Purchase Contracts of all other series;
(ii) any limit upon the aggregate number of the Purchase Contracts of the series that may be countersigned and delivered under this Agreement (except for Purchase Contracts countersigned and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Purchase Contracts of the series);
(iii) the specific property (the “Purchase Contract Property”) used to determine the amount payable upon settlement of the Purchase Contracts of the series, and the amount of such property (or the method for determining the same);
(iv) whether the Purchase Contracts of the series provide for the purchase by the Corporation and the sale by the Holder or the sale by the Corporation and the purchase by the Holder of the Purchase Contract Property;
(v) in the case of Purchase Contracts that obligate the Corporation to sell, and the Holder to purchase, Purchase Contract Property, the Purchase Price at which and, if other than U.S. Dollars, the coin or currency with which the Purchase Contract Property is to be purchased by the Holder upon
19
settlement of the Purchase Contracts of the series (or the method for determining the same) and whether the Purchase Price for such Purchase Contracts may be paid in cash or by the exchange of any other security of the Corporation, or both, or otherwise;
(vi) in the case of Purchase Contracts that obligate the Corporation to purchase, and the Holders to sell, Purchase Contract Property, the Settlement Amount for the Purchase Contracts of the series (or the method for determining the same) and, if other than U.S. Dollars, the coin or currency in which such Settlement Amount is to be paid;
(vii) whether the settlement of the Purchase Contracts of the series is to be in cash or by delivery of the Purchase Contract Property, or otherwise, and the method of settlement of the Purchase Contracts of the series;
(viii) the specific date or dates on which the Purchase Contracts will be settled, whether the settlement may be accelerated by the Corporation or the Holders thereof and, if so, the initial accelerated settlement date, the minimum number of Purchase Contracts that may be accelerated and the minimum number of Purchase Contracts greater than zero that must remain Outstanding immediately following such acceleration;
(ix) whether the Purchase Contracts of the series will be in registered form (“Registered Purchase Contracts”) or bearer form (“Bearer Purchase Contracts”) or both;
(x) whether any Purchase Contracts of the series will be issued in global form or definitive form or both, and whether and on what terms (if different from those set forth herein) Purchase Contracts in one form may be converted into or exchanged for Purchase Contracts in the other form;
(xi) any agents, depositaries, authenticating or paying agents, transfer agents or registrars or any determination or calculation agents or other agents with respect to Purchase Contracts of the series;
(xii) whether and on what terms the Purchase Contracts of the series may be separated from the other components of the Units of which the Purchase Contracts are a component;
(xiii) whether the Purchase Contracts of such series will be subject to redemption by the Corporation and, if so, the initial redemption date, the minimum number of Purchase Contracts that may be redeemed and the minimum number of Purchase Contracts greater than zero that must remain Outstanding immediately following such redemption; and
20
(xiv) any other terms of the Purchase Contracts of the series (which terms shall not be inconsistent with the provisions of this Agreement).
(c) All Purchase Contracts of any one series shall be substantially identical, except as may otherwise be provided by or pursuant to the Board Resolution or Officers’ Certificate referred to above or as set forth in any such agreement supplemental hereto. All Purchase Contracts of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Agreement, if so provided by or pursuant to such Board Resolution, such Officers’ Certificate or in any such agreement supplemental hereto.
SECTION 3.03. Countersignature, Execution on Behalf of Holder and Delivery of Purchase Contracts. (a) The Corporation may deliver Purchase Contracts of any series executed by the Corporation to the Agent for countersignature and execution on behalf of the Holders, together with the applicable documents referred to below in this Section, and the Agent shall thereupon countersign, execute on behalf of the Holders and deliver such Purchase Contracts to or upon the order of the Corporation (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Agent as may be specified from time to time by an Issuer Order. If provided for in such procedures, such Issuer order may authorize countersignature, execution on behalf of the Holders and delivery pursuant to oral instructions from the Corporation or its duly authorized agent, which instructions shall be promptly confirmed in writing. In countersigning such Purchase Contracts, executing such Purchase Contracts on behalf of the Holders and accepting the responsibilities under this Agreement in relation to the Purchase Contracts, the Agent shall be entitled to receive (in the case of subparagraphs (ii), (iii) and (iv) below only at or before the time of the first request of the Corporation to the Agent to countersign and execute on behalf of the Holders Purchase Contracts in a particular form) and shall be fully protected in relying upon, unless and until such documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and execution and setting forth delivery instructions if the Purchase Contracts are not to be delivered to the Corporation;
(ii) any Board Resolution, Officers’ Certificate and/or executed supplemental agreement pursuant to which the forms and terms of the Purchase Contracts were established;
(iii) an Officers’ Certificate setting forth the forms and terms of the Purchase Contracts, stating that the form or forms and terms of such Purchase Contracts have been established pursuant to Sections 3.01 and 3.02 and comply with this Agreement, and covering such other matters as the Agent may reasonably request; and
(iv) at the option of the Corporation, either an Opinion of Counsel or a letter addressed to the Agent permitting it to rely on an Opinion of Counsel, substantially to the effect that:
21
(A) the forms of the Purchase Contracts have been duly authorized and established in conformity with the provisions of this Agreement;
(B) the terms of the Purchase Contracts have been duly authorized and established in conformity with the provisions of this Agreement and certain terms of the Purchase Contracts have been established pursuant to a Board Resolution, an Officers’ Certificate or a supplemental agreement in accordance with this Agreement, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all terms will have been duly authorized by the Corporation and will have been established in conformity with the provisions of this Agreement; and
(C) when the Purchase Contracts have been executed by the Corporation and by the Agent on behalf of the Holders and countersigned by the Agent in accordance with the provisions of this Agreement and delivered to and duly paid for by the purchasers thereof, subject to such other conditions as may be set forth in such Opinion of Counsel, they will have been duly issued under this Agreement and will be valid and legally binding obligations of the Corporation, enforceable in accordance with their respective terms, and will be entitled to the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Agent), who shall be counsel reasonably satisfactory to the Agent, in which case the opinion shall state that such counsel believes he and the Agent are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the Corporation and its subsidiaries and certificates of public officials.
(b) The Agent shall have the right to decline to countersign, execute on behalf of the Holders and deliver any Purchase Contract under this Section if the Agent, being advised by counsel, determines that such action may not lawfully be taken by the Corporation or if the Agent in good faith by its board of directors or board of trustees determines that such action would expose the Agent to personal liability to existing registered or beneficial holders of Purchase Contracts or would affect the Agent’s own rights, duties or immunities under the Purchase Contracts, this Agreement or otherwise.
22
(c) If the Corporation shall establish pursuant to Section 3.02 that the Purchase Contracts of a series are to be evidenced by one or more Global Purchase Contracts, then unless otherwise agreed between the Corporation and the Agent the Corporation shall execute and the Agent shall, in accordance with this Section and the Issuer Order with respect to such series, countersign, execute on behalf of the Holders and deliver one or more Global Purchase Contracts that (i) shall evidence all or a portion of the Purchase Contracts of such series issued in such form and not yet cancelled, (ii) in the case of Registered Purchase Contracts, shall be registered in the name of the Depositary for such Purchase Contracts or the nominee of such Depositary, (iii) shall be delivered by the Agent to such Depositary or pursuant to such Depositary’s instructions and (iv) in the case of Registered Purchase Contracts, shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Purchase Contracts in definitive registered form, this Purchase Contract may not be transferred except as a whole by the Depositary to the 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 Depositary or a nominee of such successor Depositary.”
(d) If so required by applicable law, each Depositary for a series of Registered Purchase Contracts 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, as amended, and any other applicable statute or regulation.
(e) Each Purchase Contract shall be dated the date of its countersignature. A Purchase Contract shall not be valid for any purpose, unless and until such Purchase Contract has been executed by the Agent on behalf of the Holder and countersigned by the manual signature of an authorized officer of the Agent. Such countersignature by an authorized officer of the Agent upon any Purchase Contract executed by the Corporation in accordance with this Agreement shall be conclusive evidence that the Purchase Contract so countersigned has been duly delivered and issued hereunder.
SECTION 3.04. Further Provisions Relating to Issuance of Purchase Contracts. Purchase Contracts may be executed by the Corporation and delivered to the Agent upon the execution of this Agreement or from time to time thereafter and in connection with exchanges, substitutions and transfers of Units of any series. Subsequent to the original issuance of the Purchase Contracts, the Agent shall, subject to the conditions set forth in this Article and Article Two, countersign and execute on behalf of the Holder Purchase Contracts issued in exchange or substitution for or upon transfer of Unit Certificates evidencing one or more previously countersigned and executed Unsettled Purchase Contracts evidenced by the Unit Certificates to be exchanged, substituted for or transferred.
SECTION 3.05. Purchase of Purchase Contract Property; Optional Acceleration of Purchase Obligations; Authorization of Agent by Holder; Transferees Bound. (a) Unless otherwise specified pursuant to Section 3.02, the Unsettled Purchase Contracts of any series will either (i) obligate the Holders thereof to purchase, and the
23
Corporation to sell or deliver the cash value of, Purchase Contract Property or (ii) obligate the Corporation to purchase, and the Holders thereof to sell or deliver the cash value of, Purchase Contract Property, in each case specified pursuant to Section 3.02 (or a quantity calculated by a method specified pursuant to Section 3.02) on the Stated Settlement Date at the Purchase Price specified pursuant to Section 3.02.
(b) If this Section is specified as applicable pursuant to Section 3.02, the Corporation may, subject to paragraph (c) of this Section, at its sole option and in its sole discretion at any time or from time to time (unless otherwise specified pursuant to Section 3.02) on not less than 30 nor more than 60 days’ written notice (an “Acceleration Notice”) to the Agent and the Holders, in the manner provided in Section 11.05 and Section 11.06, respectively, accelerate the obligations of the Holders of at least the Minimum Acceleration Amount of Unsettled Purchase Contracts to purchase or sell, as the case may be, and of the Corporation to sell or purchase, as the case may be, on any Accelerated Settlement Date (provided that such Accelerated Settlement Date may not be prior to the Initial Acceleration Date), the quantity of Purchase Contract Property specified pursuant to Section 3.02 for each Unsettled Purchase Contract subject to such acceleration; provided that no such acceleration with respect to fewer than all Unsettled Purchase Contracts shall (unless otherwise specified pursuant to Section 3.02) result in fewer than the Minimum Remaining Amount of Unsettled Purchase Contracts remaining Outstanding after such Accelerated Settlement Date; and provided further that the Corporation shall have the right, in its sole discretion, on or before the 10th day prior to such Accelerated Settlement Date, to rescind any Acceleration Notice by written notice to the Agent and written notice to the Holders pursuant to Sections 11.05 and 11.06 (whereupon all rights and obligations of the Corporation and the Holders that would have arisen as a result of such Acceleration Notice shall be of no force and effect), without prejudice to the rights of the Corporation, including without limitation its rights to deliver an Acceleration Notice in the future. If fewer than all Unsettled Purchase Contracts of such series are to be accelerated to a particular Accelerated Settlement Date, the Agent shall select from among the Unsettled Purchase Contracts such number thereof as are being accelerated on a pro rata basis, by lot or by such other means reasonably acceptable to the Agent, with appropriate adjustment being made to prevent the fractional acceleration of the settlement of Purchase Contracts, such that the settlement of Purchase Contracts are accelerated only in whole and not in part.
(c) Each Holder of a Unit, by his acceptance thereof, authorizes and directs the Agent to enter into, deliver and perform any Purchase Contracts that are part of such Unit on his behalf, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under the Purchase Contracts evidenced by such Unit, and consents and agrees to the provisions hereof. If the provisions of Section 3.06 are applicable to the Units of any series, each Holder of a Unit of such series, by his acceptance thereof, further covenants and agrees that, to the extent such Holder is deemed to have elected to satisfy its obligations under any Purchase Contracts that are part of such Unit by effecting a Debt Security Settlement as provided in Section 3.06, and subject to the terms thereof, redemption payments with respect to principal of any Debt Securities that are part of such Unit shall be
24
applied by the Agent in satisfaction of such Holder’s obligations under such Purchase Contract on the applicable Settlement Date.
(d) Upon registration of transfer of a Purchase Contract of any series, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Agent pursuant to this Article Three) under the terms of this Agreement and such Purchase Contract, and the transferor shall be released from the obligations under the Purchase Contract so transferred.
(e) Each Holder of a Unit of any series, by his acceptance thereof, authorizes the Agent to execute on his behalf any Purchase Contracts that are part of such Unit, authorizes and directs the Agent on his behalf to take such other action (including without limitation any actions required under Article Five), and covenants and agrees to take such other action as may be necessary or appropriate, or as may be required by the Agent, to effect the provisions of this Agreement, the Units and the Purchase Contracts and appoints the Agent as his attorney-in-fact for any and all such purposes.
SECTION 3.06. Payment of Purchase Price. (a) Unless otherwise specified pursuant to Section 3.02 (in the case of a Unit of any series consisting of a Debt Security and a Purchase Contract that obligates the Corporation to sell, and the Holder to purchase, Purchase Contract Property), the Purchase Price for any Purchase Contract Property purchased by a Holder pursuant to such Purchase Contract shall be payable at the Corporate Trust Office of the Agent:
(i) at the option of the Holder of the Unit of which such Purchase Contract is part, after receipt by the Agent of written notice from the Holder not less than 10 days nor more than 20 days prior to the applicable Settlement Date indicating the Holder’s choice of cash settlement, by delivery by such Holder not later than 11:00 a.m., New York City time, on the Business Day immediately preceding the Settlement Date of the Purchase Price (a “Cash Settlement”), to the Agent in immediately available funds payable to or upon the order of the Corporation; or
(ii) by application of any payment received by the Agent, Collateral Agent, Trustee or Paying Agent with respect to the principal of any Debt Security included in the Unit of which such Purchase Contract constitutes a part, as provided in paragraph (f) of this Section (a “Debt Security Settlement”).
A Holder of such Units who fails to provide notice to the Agent as provided above that it will make a Cash Settlement with respect to the settlement of a Purchase Contract, or a Holder of such Units who provides such notice but does not effect a Cash Settlement in accordance with the terms of this Section 3.06, will be deemed to have elected to have the Purchase Price for the Purchase Contract Property paid pursuant to a Debt Security Settlement.
25
(b) Notwithstanding paragraph (a) of this Section, in the case of Purchase Contracts of any series that obligate the Corporation to sell, and the Holders to purchase, Purchase Contract Property, the Corporation shall not be entitled to sell any Purchase Contract Property or receive any payment of the Purchase Price therefor, if the Corporation fails to deliver such Purchase Contract Property or the cash value thereof (if specified pursuant to Section 3.02) against tender by the Agent of payment therefor.
(c) Unless otherwise specified pursuant to Section 3.02, to be effective, payment with respect to a Purchase Contract pursuant to a Cash Settlement must be deposited with the Agent by 11:00 a.m., New York City time, on the Business Day immediately preceding the Settlement Date and must be made with respect to all (and not fewer than all) of the Purchase Contracts to be settled on such Settlement Date (i) included in the Definitive Units that are registered in the name of the Person effecting Cash Settlement in the Purchase Contract Register, (ii) included in the Global Units that are beneficially owned by the Person effecting Cash Settlement as specified in the records of the direct and indirect participants of the Depositary or (iii) in the case of Purchase Contracts included in Unregistered Definitive Units, owned by the Person effecting Cash Settlement, and, in the case of (ii) and (iii) above, as certified in writing by such Person, which certification shall be collected, in the case of (ii) above, on behalf of such Person by the direct and indirect participants in the Depositary through which such Person holds interests in the Global Units, and which will be provided to the Agent in the case of (iii) above, by such Person or, in the case of (ii) above, by the Depositary or any direct participant of such Depositary, at the time payment pursuant to a Cash Settlement is deposited with the Agent. Any attempted Cash Settlement other than in accordance with this Section 3.06 shall be deemed to have not been made and any payments made to the Agent or by a Holder not complying with this Section 3.06 shall be returned by the Agent to such Holder.
(d) The Corporation shall not be obligated to deliver any Purchase Contract Property (or the cash value thereof) with respect to a Purchase Contract of any series that obligates the Corporation to sell, and the Holder to purchase, Purchase Contract Property unless it shall have received payment in full of the applicable Purchase Price for any Purchase Contract Property to be purchased thereunder in the manner set forth herein or in any Issuer Order relating to the issuance of the Purchase Contracts of such series. The Corporation shall not be obligated to pay the Purchase Price or any other Settlement Amount for any Purchase Contract Property to be purchased by the Corporation pursuant to any Purchase Contract that obligates the Corporation to purchase, and the Holder to sell, Purchase Contract Property unless it shall have received such Purchase Contract Property (or the cash value thereof) or any other Settlement Amount in the manner set forth herein or as specified pursuant to Section 3.02.
(e) In the case of Purchase Contracts that obligate the Corporation to sell, and the Holders to purchase, Purchase Contract Property in each case consisting of securities in registered form, the Agent shall cause such securities deliverable in respect of such Purchase Contracts to be registered, in the case of Registered Units, in the name of the Holder of such Units as set forth in the appropriate Securities Register.
26
(f) Unless a Holder of a Unit of any series has effected a Cash Settlement in satisfaction of his obligations under any Purchase Contracts constituting a part of such Unit that obligate the Holder, or represent the Holder’s right, to purchase Purchase Contract Property, any payment with respect to principal of any Debt Security evidenced by such Unit that is received by the Agent, Collateral Agent, Trustee or Paying Agent in connection with any Debt Security Settlement shall be paid by the Agent to the Collateral Agent for delivery to the Corporation in satisfaction of the Holder’s obligations under the Global Purchase Contract or Purchase Contracts constituting a part of such Units. Any payment that is received by the Agent, Collateral Agent, Trustee or Paying Agent with respect to interest on a Debt Security related to a Purchase Contract that has been settled in accordance with Section 3.06(a)(ii) shall be distributed to the Holders of Units upon surrender of the appropriate Unit Certificate.
(g) Except as otherwise specified pursuant to Section 3.02, all payments to be made by the Holders or by the Agent, Collateral Agent, Trustee or Paying Agent shall be made in lawful money of the United States of America, by certified check or wire transfer in immediately available funds in accordance with such regulations as the Agent may reasonably establish consistent with the provisions of this Agreement.
(h) Any payment of the applicable Purchase Price deposited by a Holder hereunder with respect to a Purchase Contract shall be held by the Agent in custody for the benefit of the Holder and applied in satisfaction of such Holder’s obligations under such Purchase Contract, or released and delivered to the Holder upon the failure of the Corporation to satisfy its settlement obligations against tender by the Agent of such payment of the applicable Purchase Price.
SECTION 3.07. Delivery of Purchase Contract Property or Other Amounts. Unless otherwise specified pursuant to Section 3.02, (i) in the case of Purchase Contracts obligating the Corporation to sell, and the Holders to purchase, Purchase Contract Property, upon its receipt of payment in full of the Purchase Price for the Purchase Contract Property purchased by any Holder pursuant to the foregoing provisions of this Article, the Corporation shall cause such Purchase Contract Property to be delivered to the Holders; and (ii) in the case of Purchase Contracts obligating the Corporation to purchase, and the Holders to sell, Purchase Contract Property, upon its receipt of the Purchase Contract Property, Settlement Amount or other amount, the Corporation shall cause the Purchase Price, Settlement Amount or other amount, as applicable, to be delivered to the Holders, provided that in each case such delivery shall be made only upon delivery to the Agent of the related Unit Certificate.
Upon receipt of any Unit Certificate, the Agent shall cancel such Unit Certificate in accordance with Section 2.11 as a result of the delivery referred to in the preceding paragraph. If any Debt Securities relating to Closed Purchase Contracts constituting a part of Units evidenced by such Unit Certificate remain outstanding as a result of Cash Settlement, the Corporation shall execute and the Trustee shall authenticate and deliver (i) in the case of Definitive Units, to the Holder thereof, in accordance with the terms of the Indenture, a new certificate or certificates representing solely the principal amount of
27
Debt Securities still outstanding (ii) in the case of Global Units, if a Global Debt Security not constituting part of a Global Unit has not previously been issued by the Corporation, a second Global Debt Security representing Debt Securities still Outstanding that are not part of Units. If a second Global Debt Security referred to in clause (ii) of the immediately preceding sentence has already been issued, the Agent shall note thereon an appropriate increase in the number of Debt Securities represented by such Global Debt Security.
SECTION 3.08. Charges and Taxes. The Corporation shall not be required to pay any tax or taxes that may be payable with respect to any exchange of or substitution for a Unit Certificate or Security and the Corporation shall not be required to issue or deliver such Unit Certificate or such Security unless or until the Person or Persons requesting the transfer or issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Agent shall be under no obligation to pay any such tax.
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations. If at any time there shall have occurred an Event of Default with respect to any Debt Securities constituting a part of any Units that has resulted in the principal of any Debt Securities being declared due and payable immediately pursuant to Section 502 of the Indenture, then the Holders of not less than 25% of all Unsettled Purchase Contracts constituting a part of any Units comprising Debt Securities subject to such declaration may on behalf of all Holders of such Unsettled Purchase Contracts by notice in writing to the Corporation and Agent declare the obligations of such Holders to purchase or sell, as the case may be, and of the Corporation to sell or purchase, as the case may be, the quantity of Purchase Contract Property specified pursuant to Section 3.02 under each such Unsettled Purchase Contract to be accelerated to the date of such declaration and, upon any such declaration, such obligations shall be so accelerated. The foregoing provision is subject to the condition that if, at any time prior to settlement of such Purchase Contracts, the declaration with respect to Debt Securities referred to in the immediately preceding sentence and its consequences are rescinded and annulled in accordance with Section 502 of the Indenture, the acceleration of the obligations with respect to Unsettled Purchase Contracts referred to in the immediately preceding sentence and its consequences may be annulled and rescinded by vote of the Holders of not less than 25% of all affected Unsettled Purchase Contracts Outstanding.
SECTION 4.02. Unconditional Rights under Purchase Contracts; Limitation on Proceedings by Holders. (a) The Holder of any Unit shall have the right, which is absolute and unconditional, to purchase or sell, as the case may be, Purchase Contract Property pursuant to such Purchase Contract and to institute suit for the enforcement of such right, and such right shall not be impaired without the consent of such Holder.
(b) No Holder of any Unit shall have any right by virtue of or by availing itself of any provision of this Agreement to institute any action or proceeding at law or in
28
equity or in bankruptcy or otherwise upon or under or with respect to this Agreement, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given written notice to the Agent and the Corporation of a Default and of the continuance thereof and, (i) in the case of an Event of Default under Debt Securities or the Indenture, the procedures (including notice to the Trustee and the Corporation) described in Article Five of the Indenture have been complied with and (ii) in the case of a Purchase Contract Default specified in clause (ii) of the definition thereof, unless the Holders of not less than 25% of all affected Purchase Contracts comprised by all Units then Outstanding shall have made written request upon the Agent to institute such action or proceedings in its own name as Agent hereunder and shall have offered to the Agent such reasonable indemnity as it may require pursuant to Article Six, and the Agent for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute such action or proceedings and no direction inconsistent with such request shall have been given to the Agent in writing by holders of a majority of all affected Purchase Contracts constituting parts of Units then Outstanding. Any Holder of a Unit may then (but only then) seek to enforce the performance of the covenant or agreement with respect to which such Purchase Contract Default exists; it being intended and expressly covenanted by the Holder of each Unit with every other Holder and the Agent that no Holder shall have any right by virtue of or by availing itself of any provision of this Agreement to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other Holder, or to enforce any right under this Agreement, except in accordance with this Section or the Indenture and for the equal, ratable and common benefit of all Holders. For the protection and enforcement of the provisions of this Section, each and every Holder of a Unit and the Agent shall be entitled to such relief as can be given either at law or in equity.
SECTION 4.03. Restoration of Rights and Remedies. If any Holder of Units has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and in every such case, subject to any determination in such proceeding the Corporation, the Agent, the Trustee and such Holder shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies the Corporation, the Agent, the Trustee and such Holder shall continue as though no such proceeding had been instituted.
SECTION 4.04. Rights and Remedies Cumulative. Subject to Section 4.02, and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Unit Certificates, no right or remedy herein conferred upon or reserved to the Holders of Units 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.
29
SECTION 4.05. Delay or Omission Not Waiver. No delay or omission of any Holder to exercise any right or remedy accruing upon any Default shall impair any such right or remedy or constitute a waiver of any such Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders.
SECTION 4.06. Waiver of Past Defaults. The Holders of not less than a majority of all affected Purchase Contracts evidenced by Units of all series at the time Outstanding may on behalf of the Holders of all affected Units waive any past Purchase Contract Default hereunder and its consequences, except, unless theretofore cured (i) a Purchase Contract Default resulting from the failure of the Corporation to deliver (A) in the case of Purchase Contracts obligating the Corporation to sell, and the Holders to purchase, Purchase Contract Property (or the cash value thereof) Purchase Contract Property (or the cash value thereof) against tender of payment therefor or (B) in the case of Purchase Contracts obligating the Corporation to purchase, and the Holders to sell, Purchase Contract Property (or the cash value thereof) the applicable Purchase Price or other Settlement Amount specified pursuant to Section 3.02 against tender of Purchase Contract Property or other amount specified pursuant to Section 3.02 therefor or (ii) a Purchase Contract Default with respect to a covenant or provision hereof which under Article Seven cannot be modified or amended without approval of the Holder of each affected Purchase Contract that is a part of an Outstanding Unit of any series. In the case of any such waiver, the Holders, the Agent and the Corporation shall be restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such Purchase Contract Default shall cease to exist, for every purpose of this Agreement, but no such waiver shall extend to any subsequent or other Purchase Contract Default or impair any right consequent thereon unless so expressly therein provided.
SECTION 4.07. Undertaking for Costs. All parties to this Agreement agree, and each Holder of any Unit 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 Agreement, or in any suit against the Agent for any action taken, suffered or omitted by it as Agent, 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 due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section shall not apply to any suit instituted by the Agent, to any suit instituted by any Holder of Units, or group of Holders, holding in the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder for enforcement of the right to purchase or sell Purchase Contract Property under the Purchase Contracts constituting a part of the Units held by such Holder or to receive payment of the applicable Purchase Price (or other Settlement Amount that may be specified pursuant to Section 3.02) with respect thereto.
30
SECTION 4.08. Waiver of Stay or Extension Laws. The Corporation 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 wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Agreement; and the Corporation (to the extent that it may lawfully do so) each hereby expressly waives all benefit 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 Agent, or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 4.09. Agent May File Proofs of Claims. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy or other judicial proceeding relating to the Corporation or the property of the Corporation or its creditors, the Agent shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Agent, its agents and counsel) and of the Holders allowed in such judicial proceeding; and
(ii) 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, liquidator or other similar official in any such proceeding is hereby authorized by each Holder to make such payments to the Agent, and in the event that the Agent shall consent to the making of such payments directly to the Holders, to pay to the Agent any amount due to it hereunder; provided, however, that nothing herein shall be deemed to authorize the Agent to authorize or consent to or vote for or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Units or the rights of any Holder thereof, or to authorize the Agent to vote in respect of the claim of any Holder of Units in any such proceeding.
SECTION 4.10. Suits for Enforcement. In case a Purchase Contract Default has occurred, has not been waived and is continuing, and subject to receipt by the Agent of the request referred to in Section 4.02 or the direction referred to in Section 4.11 and the security or indemnity referred to in Section 6.03(f), the Agent shall have the right to enforce, on behalf of the Holders, the Purchase Contracts and the covenants and agreements of the Corporation contained in the Purchase Contracts and in this Agreement with respect to the Purchase Contracts and to proceed to protect and enforce such rights by appropriate judicial proceedings to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any such covenant or agreement contained in this Agreement or in the Purchase Contracts or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right vested in the Agent by this Agreement or by law.
31
All rights of action and of asserting claims under this Agreement, or under the Units or any Securities comprised by the Units, may be enforced by the Agent without the possession of the Units or any of the Securities comprised by the Units or the production thereof on any trial or other proceedings relative thereto, and any such actions or proceedings instituted by the Agent shall be brought in its own name as agent and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Agent, each predecessor Agent and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Units or Securities in respect of which such action was taken.
SECTION 4.11. Control by Holders. The Holders of a majority of affected Outstanding Purchase Contracts constituting a part of any Outstanding Units shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Agent, or exercising any power conferred on the Agent with respect to such Purchase Contracts by this Agreement; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Agreement and provided further that (subject to the provisions of Section 6.01) the Agent shall have the right to decline to follow any such direction if the Agent, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Agent in good faith by its board of directors or board of trustees or a committee of its Responsible Officers, shall determine that the action or proceedings so directed could involve the Agent in personal liability or if the Agent in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of Units not joining in the giving of said direction, it being understood that (subject to Section 6.01) the Agent shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Agreement shall impair the right of the Agent in its discretion (but subject to Section 4.10) to take any action deemed proper by the Agent and which is not inconsistent with such direction or directions by Holders.
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and Remedies of Collateral Agent; Perfection. In order to secure the observance and performance of the covenants and agreements of the Holders of Purchase Contracts contained herein and in such Purchase Contracts, unless otherwise specified pursuant to Section 2.03:
(a) Effective upon issuance of Units of any series consisting of Debt Securities and Purchase Contracts, the Holders thereof acting through the Agent, as their attorney-in-fact, shall be deemed to grant, sell, convey, assign, transfer and pledge unto the Collateral Agent, as agent of and for the benefit of the Corporation, as collateral security for the performance when due by such Holders of their respective obligations hereunder and under the Purchase Contracts constituting a part of such Units, a security interest in and to,
32
and a lien upon and right of set-off (the “Pledge”) against, all of their right, title and interest in and to (i) the Pledged Items; (ii) all additions to and substitutions for such Pledged Items as may be permissible, if so specified pursuant to Section 3.02; (iii) all income, proceeds and collections received or to be received, or derived or to be derived, now or any time hereafter from or in connection with (i) and (ii) above, and (iv) all powers and rights now owned or hereafter acquired under or with respect to the Pledged Items (such Pledged Items, additions, substitutions, proceeds, collections, powers and rights being herein collectively called the “Collateral”).
(b) Prior to or concurrently with the issuance of Global Units of any series of which Debt Securities and Purchase Contracts constitute a part, the initial Holders and the Agent shall cause the Debt Securities constituting a part of such Global Units to be delivered to the Collateral Agent, and, if specified pursuant to Section 3.02, accompanied by an instrument of transfer executed in blank, and the Corporation shall notify the Collateral Agent of the Pledge and receipt of such notification shall constitute acknowledgment by the Collateral Agent (as third party in possession or otherwise) of the Pledge and its holding of the Collateral subject to the Pledge, in each case for purposes of perfecting the Pledge under applicable law. Subject to the Pledge, the Holders from time to time of the Units of which the Debt Securities constitute a part shall have full beneficial ownership of such Debt Securities.
(c) The Collateral Agent shall have all of the rights, remedies and recourse with respect to the Collateral afforded a secured party by the Uniform Commercial Code as in effect in the State of New York (whether or not said Code is in effect in the jurisdiction where the rights and remedies are asserted), in addition to, and not in limitation of, the other rights, remedies and recourse afforded to the Collateral Agent by this Agreement.
(d) Each Holder, to the extent permitted by applicable law, by accepting Units of any series issued hereunder authorizes the Collateral Agent to execute and file, in the name of such Holder, Uniform Commercial Code financing or continuation statements (which may be carbon, photographic, photostatic or other reproductions of this Agreement or of a financing statement relating to this Agreement) which the Collateral Agent in its sole discretion (but subject to Section 5.03(f)) may deem necessary or appropriate to further perfect, or maintain the perfection of the security interests granted hereby.
SECTION 5.02. Distribution of Principal and Interest; Release of Collateral. Unless otherwise specified pursuant to Section 2.03:
(a) All payments of principal of, or interest on, any Pledged Items received by the Collateral Agent pursuant to Section 3.06 (f) shall be paid by the Collateral Agent in same day funds no later than 2:00 p.m., New York City time, on the Business Day such payments are received by the Collateral Agent or, if received on a day that is not a Business Day or after 12:00 noon, New York City time, on a Business Day, then such payment shall be made no later than 9:00 am., New York City time, on the next succeeding Business Day to the Corporation, in full satisfaction of the respective obligations of the Holders of the Units
33
of which such Pledged Items are a part under the Purchase Contracts forming a part of such Units. Any such payments in excess of such obligations of the Holders shall be promptly paid to the Agent to the account designated by it for such purpose. All such payments received by the Agent as provided herein shall be applied by the Agent pursuant to the provisions hereof.
(b) Upon notice to the Collateral Agent by the Agent that one or more Holders of Units have elected to effect Cash Settlement of their respective obligations under the Purchase Contracts forming a part of such Units in accordance with the terms hereof, and that either the Agent has received from such Holders, and paid to the Corporation, the related amounts pursuant to the terms of the Purchase Contracts and this Agreement or no such payment is required, and that all other conditions to such Cash Settlement have been satisfied, then the Collateral Agent shall release from the Pledge the Pledged Items relating to such Purchase Contracts.
SECTION 5.03. Certain Duties and Responsibilities of the Collateral Agent. The Collateral Agent accepts its duties and responsibilities hereunder as agent for the Corporation, on and subject to the following terms and conditions:
(a) The Collateral Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. No provision of this Agreement shall be construed to relieve the Collateral Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(i) the duties and obligations of the Collateral Agent with respect to the Units shall be determined solely by the express provisions of this Agreement and the Collateral Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Collateral Agent; and
(ii) in the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Collateral Agent and conforming to the requirements of this Agreement, but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Collateral Agent, the Collateral Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement.
(b) The Collateral Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Agent, unless it shall be proved that the Collateral Agent was negligent in ascertaining the pertinent facts.
34
(c) No provision of this Agreement shall require the Collateral Agent 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.
(d) Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Collateral Agent shall be subject to the provisions of this Section.
(e) The Collateral Agent is acting solely as agent for the Corporation hereunder and owes no fiduciary duties to any Person by virtue of this Agreement.
(f) Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the lien on the Collateral purported to be created hereby and shall have no obligation to file any financing or continuation statement with respect to the Collateral in any public office at any time or time.
SECTION 5.04. Knowledge of the Collateral Agent. The Collateral Agent shall not be deemed to have knowledge of any default by any person under any Purchase Contract, unless and until a Responsible Officer of the Collateral Agent assigned to its Corporate Trustee Administration Department shall have actual knowledge thereof or shall have received written notice thereof from the Corporation or any Holder.
SECTION 5.05. Certain Rights of Collateral Agent. Subject to the provisions of Section 5.03:
(a) the Collateral Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Corporation mentioned herein shall be sufficiently evidenced by an Officers’ Certificate, Issuer Order or Issuer Request, and any resolution of the Board of Directors of the Corporation, as the case may be, may be sufficiently evidenced by a Board Resolution;
(c) the Collateral Agent may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion,
35
report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document;
(e) the Collateral Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; and
(f) the Collateral Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.
SECTION 5.06. Compensation and Reimbursements. The Corporation agrees:
(a) to pay to the Collateral Agent from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law with regard to the compensation of a trustee of an express trust),
(b) except as otherwise expressly provided herein, to reimburse the Collateral Agent and any predecessor Collateral Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Collateral Agent in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Collateral Agent and any predecessor Collateral Agent for, and to hold it harmless against, any 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 Agreement and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section to compensate and indemnify the Collateral Agent and any predecessor Collateral Agent and to pay or reimburse the Collateral Agent and any predecessor Collateral Agent for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of such Collateral Agent or predecessor Collateral Agent or the termination hereof or of any Purchase Contract. Such additional indebtedness shall be a senior claim to that of the Units upon all property and funds held or collected by the Collateral Agent as such, except funds held in trust for the benefit of the Holders of Units, and the Units are hereby subordinated to such senior claim.
SECTION 5.07. Corporate Collateral Agent Required Eligibility. There shall at all times be a Collateral Agent hereunder which shall be a corporation organized and doing
36
business under the laws of the United States of America, any State thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, State or District of Columbia authority and willing to act on reasonable terms. If such corporation, or its parent, 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. [**The Collateral Agent hereunder shall at all times be the Agent hereunder and the Trustee and a Paying Agent under the Indenture, subject to receipt of an Opinion of Counsel that the same Person is not precluded by law from acting in such capacities.] If at any time the Collateral Agent 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. The Collateral Agent may appoint one or more sub-collateral agents with offices or agencies in a city or cities outside the United States.
SECTION 5.08. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Collateral Agent and no appointment of a successor Collateral Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Collateral Agent in accordance with the applicable requirements of Section 5.09.
(b) The Collateral Agent may resign by giving written notice thereof to the Corporation and the Holders, in accordance with Section 11.05 and Section 11.06, 60 days prior to the effective date of such resignation. The Collateral Agent may be removed at any time upon 60 days’ notice by the filing with it of an instrument in writing signed on behalf of the Corporation and specifying such removal and the date when it is intended to become effective. If the instrument of acceptance by a successor Collateral Agent required by Section 5.09 shall not have been delivered to the Collateral Agent within 30 days after the giving of such notice of resignation, the resigning Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent.
(c) If at any time
(i) the Collateral Agent shall cease to be eligible under Section 5.07, [**or shall cease to be eligible as Agent hereunder or as Trustee under the Indenture] and shall fail to resign after written request therefor by the Corporation, or
(ii) the Collateral Agent shall become incapable of acting with respect to the Collateral or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Collateral Agent or of its property shall be appointed or any public officer shall take charge or control of the Collateral Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Corporation, by Board
37
Resolution, may remove the Collateral Agent and appoint a successor Collateral Agent.
(d) If the Collateral Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Collateral Agent for any cause, the Corporation, by Board Resolution, shall promptly appoint a successor Collateral Agent or Collateral Agents (other than the Corporation) and shall comply with the applicable requirements of Section 5.09.
(e) The Corporation shall give, or shall cause such successor Collateral Agent to give, notice of each resignation and each removal of the Collateral Agent and each appointment of a successor Collateral Agent to all Holders of Units in accordance with Section 11.06. Each notice shall include the name of the successor Collateral Agent and the address of its Corporate Trust Office.
SECTION 5.09. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Collateral Agent, every such successor Collateral Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Collateral Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Collateral Agent shall become effective and such successor Collateral Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Collateral Agent, with like effect as if originally named as Collateral Agent hereunder; but, on the request of the Corporation or the successor Collateral Agent, such retiring Collateral Agent shall, upon payment of all amounts due and payable to it pursuant to Section 5.06, execute and deliver an instrument transferring to such successor Collateral Agent all the rights and powers of the retiring Collateral Agent and shall duly assign, transfer and deliver to such successor Collateral Agent all property and money held by such retiring Collateral Agent hereunder. Any retiring Collateral Agent shall, nonetheless, retain a prior claim upon all property or funds held or collected by such Collateral Agent to secure any amounts then due it pursuant to Section 5.06.
(b) Upon request of any such successor Collateral Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Collateral Agent all such rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Collateral Agent shall accept its appointment unless at the time of such acceptance such successor Collateral Agent shall be eligible under this Article.
(d) Upon acceptance of appointment by any successor Collateral Agent as provided in this Section, the Corporation shall give notice thereof to the Holders of Units in accordance with Section 11.06. If the acceptance of appointment is substantially contemporaneous with the resignation of the Collateral Agent, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.08. If the Corporation fails to give such notice within ten days after acceptance of appointment by the
38
successor Collateral Agent, the successor Collateral Agent shall cause such notice to be given at the expense of the Corporation.
SECTION 5.10. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Collateral Agent 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 Collateral Agent shall be a party, or any corporation succeeding to all or substantially all the agency business of the Collateral Agent, shall be the successor of the Collateral 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 shall be otherwise eligible under this Article.
SECTION 5.11. Money Held in Trust. Money held by the Collateral Agent in trust hereunder need not be segregated from other funds held by the Collateral Agent, except to the extent required by law. The Collateral Agent shall be under no obligation to invest or pay interest on any money received by it hereunder, except as otherwise agreed with the Corporation. Any interest accrued on funds deposited with the Collateral Agent or any Paying Agent under this Agreement shall be paid to the Corporation from time to time and the Holders of Units (whether or not any Purchase Contracts are to be redeemed with such funds) shall have no claim to any such interest.
ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities. (a) The Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(i) the duties and obligations of the Agent with respect to the Units shall be determined solely by the express provisions of this Agreement and the Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Agent; and
(ii) in the absence of bad faith on its part, the Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Agent and conforming to the requirements of this Agreement, but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Agent, the
39
Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement.
(c) The Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Agent, unless it shall be proved that the Agent was negligent in ascertaining the pertinent facts.
(d) The Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in number of affected Outstanding Purchase Contracts relating to the time, method and place of conducting any proceeding for any remedy available to the Agent, or exercising any power conferred upon the Agent, under this Agreement.
(e) No provision of this Agreement shall require the Agent 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.
(f) Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Agent shall be subject to the provisions of this Section.
(g) The Agent is acting solely as agent for the Corporation hereunder and owes no fiduciary duties to any person by virtue of this Agreement.
SECTION 6.02. Notice of Default. Within 90 days after the occurrence of any Purchase Contract Default of which a Responsible Officer of the Agent assigned to its Corporate Trustee Administration Department has actual knowledge (and except with respect to a Purchase Contract Default under the Purchase Contracts existing on the Settlement Date, in which event, as promptly as practicable thereafter) the Agent shall provide to all Holders of Units, in the manner provided in Section 11.06, notice of such Purchase Contract Default hereunder, unless such Purchase Contract Default shall have been cured or waived.
SECTION 6.03. Certain Rights of Agent. Subject to the provisions of Section 6.01:
(a) the Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Corporation mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order or Issuer
40
Request and any resolution of the Board of Directors of the Corporation, as the case may be, may be sufficiently evidenced by a Board Resolution;
(c) the Agent may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or opinion of Counsel;
(d) the Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Agent, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the issuance of the Debt Securities and the execution, delivery and performance of the Purchase Contracts as it may see fit, and, if the Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Corporation, at reasonable times during normal business hours, personally or by agent or attorney;
(e) the Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Agent shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
(f) the Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request, order or direction of any of the Holders pursuant to this Agreement, unless such Holders shall have offered to the Agent reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(g) the Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement; and
(h) the Agent shall not be charged with notice or knowledge of a Purchase Contract Default unless a Responsible Officer of the Agent assigned to its Corporate Trustee Administration Department shall have actual knowledge thereof.
SECTION 6.04. Not Responsible for Recitals or Issuance of Units. The recitals contained herein, in the Indenture and in the Units, except the Trustee’s and Agent’s certificates of authentication or countersignature, shall be taken as the statements of the Corporation, and none of the Trustee, Agent or any Authenticating Agent assumes any responsibility for their correctness. The Agent makes no representations as to the validity or sufficiency of this Agreement or of the Units. None of the Trustee, Agent or any Authenticating Agent shall be accountable for the use or application by the Corporation of the proceeds with respect to Units or be responsible for exercising any remedy hereunder on behalf of the Holders, except as expressly provided in this Agreement.
41
SECTION 6.05. May Hold Units. The Agent, the Collateral Agent, the Trustee, any Authenticating Agent, any Purchase Contract Registrar or any other agent of the Corporation, the Trustee or the Agent, in its individual or any other capacity, may become the owner or pledgee of Units and may otherwise deal with the Corporation and receive, collect, hold and retain collections from the Corporation with the same rights it would have if it were not Authenticating Agent, Purchase Contract Registrar or such other agent, the Trustee, the Collateral Agent or the Agent.
SECTION 6.06. Money Held in Trust. Money held by the Agent in trust hereunder need not be segregated from other funds held by the Agent, except to the extent required by law. The Agent shall be under no obligation to invest or pay interest on any money received by it hereunder, except as otherwise agreed with the Corporation. Any interest accrued on funds deposited with the Agent or any Paying Agent under this Agreement shall be paid to the Corporation from time to time and the Holders of Units (whether or not any Purchase Contracts are to be redeemed with such funds) shall have no claim to any such interest.
SECTION 6.07. Compensation and Reimbursement. The Corporation agrees:
(a) to pay to the Agent from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law with regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Agent and any predecessor Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Agent in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to hold it harmless against, any 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 Agreement and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section to compensate and indemnify the Agent and any predecessor Agent and to pay or reimburse the Agent and any predecessor Agent for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of such Agent or predecessor Agent or the termination hereof or any Purchase Contract. Such additional indebtedness shall be a senior claim to that of the Units upon all property and funds held or collected by the Agent as such, except funds held in trust for the benefit of the Holders of particular Units, and the Units are hereby subordinated to such senior claim.
42
SECTION 6.08. Corporate Agent Required: Eligibility. There shall at all times be an Agent hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, State or District of Columbia authority and willing to act on reasonable terms. If such corporation, or its parent, 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. [**The Agent hereunder shall at all times be the Collateral Agent hereunder and the Trustee under the Indenture, subject to receipt of an Opinion of Counsel that the same Person is not precluded by law from acting in such capacities.] If at any time the Agent 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. The Agent may appoint one or more sub-agents with offices or agencies in a city or cities outside the United States.
SECTION 6.09. Resignation and Removal: Appointment of Successor. (a) No resignation or removal of the Agent and no appointment of a successor Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Agent in accordance with the applicable requirements of Section 6.10.
(b) The Agent may resign by giving written notice thereof to the Corporation and the Holders, in accordance with Section 11.05 and Section 11.06, 60 days prior to the effective date of such resignation. The Agent may be removed at any time upon 60 days’ notice by the filing with it of an instrument in writing signed on behalf of the Corporation and specifying such removal and the date when it is intended to become effective. If the instrument of acceptance by a successor Agent required by Section 6.10 shall not have been delivered to the Agent within 30 days after the giving of such notice of resignation, the resigning Agent may petition any court of competent jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 6.08, [**or shall cease to be eligible as Collateral Agent hereunder or as Trustee under the Indenture,] and shall fail to resign after written request therefor by the Corporation or by any Holder, or
(ii) the Agent shall become incapable of acting with respect to the Units or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Agent or of its property shall be appointed or any public officer shall take charge or control of the Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Corporation, by Board Resolution, may remove the Agent and appoint a
43
successor Agent, or (B) any Holder who has been a bona fide Holder of a Unit 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 Agent and the appointment of a successor Agent or Agents. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Agent and appoint a successor Agent.
(d) If the Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Agent for any cause, the Corporation, by Board Resolution, shall promptly appoint a successor Agent or Agents (other than the Corporation) and shall comply with the applicable requirements of Section 6.10. If no successor Agent shall have been so appointed by the Corporation and accepted appointment in the manner required by Section 6.10, any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Agent.
(e) The Corporation shall give, or shall cause such successor Agent to give, notice of each resignation and each removal of the Agent and each appointment of a successor Agent to all Holders of Units in accordance with Section 11.06. Each notice shall include the name of the successor Agent and the address of its Corporate Trust Office.
SECTION 6.10. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Agent, every such successor Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Agent shall become effective and such successor Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Agent, with like effect as if originally named as Agent hereunder; but, on the request of the Corporation or the successor Agent, such retiring Agent shall, upon payment of all amounts due and payable to it pursuant to Section 6.07, execute and deliver an instrument transferring to such successor Agent all the rights and powers of the retiring Agent and shall duly assign, transfer and deliver to such successor Agent all property and money held by such retiring Agent hereunder. Any retiring Agent shall, nonetheless, retain a prior claim upon all property or funds held or collected by such Agent to secure any amounts then due it pursuant to Section 6.07.
(b) Upon request of any such successor Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Agent all such rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time of such acceptance such successor Agent shall be eligible under this Article.
(d) Upon acceptance of appointment by any successor Agent as provided in this Section, the Corporation shall give notice thereof to the Holders of Units in
44
accordance with Section 11.06. If the acceptance of appointment is substantially contemporaneous with the resignation of the Agent, then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.09. If the Corporation fails to give such notice within ten days after acceptance of appointment by the successor Agent, the successor Agent shall cause such notice to be given at the expense of the Corporation.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Agent 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 Agent shall be a party, or any corporation succeeding to all or substantially all the agency business of the Agent, shall be the successor of the 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 shall be otherwise eligible under this Article. In case any Purchase Contracts shall have been countersigned and executed, but not delivered, by the Agent then in office, any successor by merger, conversion or consolidation to such Agent may adopt such countersignature and execution and deliver the Purchase Contracts so countersigned and executed with the same effect as if such successor Agent had itself countersigned and executed such Purchase Contracts.
SECTION 6.12. Appointment of Authenticating Agent. At any time when any of the Units remain Outstanding the Agent may, by an instrument in writing, appoint an Authenticating Agent or Agents with respect to the Purchase Contracts to be authorized to act on behalf of the Agent to countersign, execute and deliver the Purchase Contracts issued upon exchange, registration of transfer or pursuant to Section 2.09 and Purchase Contracts so countersigned, executed and delivered shall be entitled to the benefits of this Agreement and shall be valid and obligatory for all purposes as if countersigned by the Agent hereunder. Wherever reference is made in this Agreement to the countersignature, execution and delivery of Purchase Contracts by the Agent or the Agent’s countersignature or execution, such references shall be deemed to include countersignature, execution and delivery on behalf of the Agent by an Authenticating Agent and a countersignature and execution executed on behalf of the Agent by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Corporation and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, subject to supervision or examination by Federal or State or District of Columbia authority and having, together with its parent, a combined capital and surplus of not less than $50,000,000. If such Authenticating Agent, or its parent, 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 Authenticating Agent 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 an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. The Agent may also
45
appoint one or more Authenticating Agents with offices or agencies in a city or cities outside the United States.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the 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 Agent or the Authenticating Agent, provided that such corporation shall be otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written notice thereof to the Agent and to the Corporation. The Agent may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Corporation. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Agent may appoint a successor Authenticating Agent which shall be acceptable to the Corporation and shall provide written notice of such appointment to all Holders of Units in the manner and to the extent provided in Section 11.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. No Authenticating Agent shall have any responsibility or liability for any action taken by it as such at the direction of the Agent.
The provisions of Sections 2.10, 6.04 and 6.05 shall be applicable to each Authenticating Agent.
46
Pursuant to each appointment made under this Section, the Purchase Contracts covered by such appointment may have endorsed thereon, in addition to the form of Agent’s countersignature and execution of the Purchase Contracts evidenced thereby, an alternative countersignature and execution of the Purchase Contracts contained therein in the following forms:
|
, as |
||||
|
|
||||
|
Agent, as attorney-in-fact of the Holder hereof |
||||
|
By |
[NAME OF AUTHENTICATING AGENT], as Authenticating Agent |
|||
|
By: |
||||
|
|
||||
|
[Authorized Officer] Title: |
||||
|
Countersigned: |
||||
|
, as |
||||
|
|
||||
|
Agent |
||||
|
By |
[NAME OF AUTHENTICATING AGENT], as Authenticating Agent |
|||
|
By: |
||||
|
|
||||
|
[Authorized Officer] Title: |
||||
SECTION 6.13. Corporation to Furnish Agent Names and Addresses of Holders. The Corporation will furnish or cause to be furnished to the Agent
(a) not later than 15 days after each Regular Record Date in each year, a list, in such form as the Agent may reasonably require, of the names and addresses of the Holders of Registered Units as of such Regular Record Date, and
(b) at such other times as the Agent may request in writing, within 30 days after the receipt by the Corporation 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 that no such
47
list need be furnished if the Agent shall be the Purchase Contract Registrar and the registrar under the Indenture.
SECTION 6.14. Preservation of Information; Communications to Holders. (a) The Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Units contained in the most recent list furnished to the Agent as provided in Section 6.13 and the names and addresses of Holders of Registered Units received by the Agent in its capacity as Purchase Contract Registrar and the registrar under the Indenture. The Agent may destroy any list furnished to it as provided in Section 6.13 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as “applicants”) apply in writing to the Agent, and furnish to the Agent reasonable proof that each such applicant has owned a Unit for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Units and is accompanied by a copy of the form of proxy or other communication that such applicants propose to transmit, then the Agent shall, within five Business Days after the receipt of such application, at its election either (i) afford such applicants access to the information preserved at the time by the Agent in accordance with Section 6.14 (a) or (ii) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Agent, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Agent shall elect not to afford such applicants access to such information, the Agent shall, upon the written request of such applicants, mail to each Holder whose name and address appears in the information preserved at the time by the Agent, a copy of the form of proxy or other communication that is specified in such application, with reasonable promptness after a tender to the Agent of the material to be mailed and of payment, or provision for payment, of the reasonable expenses of mailing, unless within five days after such tender, the Agent shall mail to such applicants a written statement to the effect that in the opinion of the Agent, such mailing would be contrary to the best interests of the Holders or would be in violation of applicable law. Thereafter, the Agent shall be relieved of any obligation or duty to such applicants with respect to their application.
(c) Every Holder of Units, by his acceptance thereof, agrees with the Corporation and the Agent that neither the Corporation nor the Agent nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 6.14(b), regardless of the source from which such information was derived, and that the Agent shall not be held accountable by reason of mailing any material pursuant to a request made under Section 6.14(b).
SECTION 6.15. No Obligation of Holder. Except to the extent otherwise provided in this Agreement, the Agent assumes no obligations and shall not be subject to any
48
liability under this Agreement or any Purchase Contract with respect to the obligations of the Holder of a Unit thereunder. The Corporation agrees, and each Holder of a Unit Certificate, by his acceptance thereof, shall be deemed to have agreed, that the Agent’s execution of the Purchase Contracts evidenced by the Unit Certificates shall be solely as agent and attorney-in-fact for the Holders, and that the Agent shall have no obligation to perform such Purchase Contracts on behalf of the Holders, except to the extent provided in this Article.
SECTION 6.16. Tax Compliance. (a) The Agent, on its own behalf and on behalf of the Corporation, will comply with all applicable certification, information reporting and withholding (including “backup” withholding) requirements imposed by applicable United States, federal and state tax laws, regulations or administrative practice (i) with respect to payments on, or transfer or redemption of the Debt Securities or the Purchase Contracts or (ii) if specifically instructed by the Corporation, with respect to the issuance, delivery, holding, or exercise of rights (other than by payment, transfer or redemption) under the Debt Securities or the Purchase Contracts. Such compliance shall include, without limitation, the preparation and timely filing of required returns with respect to, and the timely payment of, all amounts required to be withheld to the appropriate taxing authority or its designated agent. The Corporation will provide to the Agent such information as it may reasonably request in order to comply with this Section.
(b) The Agent shall comply with any direction received from the Corporation with respect to the application of such requirements to particular payments or holders or in other particular circumstances, and may for purposes of this Agreement rely on any such direction in accordance with the provisions of Section 6.01(b)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available on request at reasonable times during normal business hours to the Corporation or to their authorized representatives duly authorized in writing.
(d) Unless otherwise specified pursuant to Section 2.03, the portion of the issue price of any Units of any series consisting of Debt Securities and Purchase Contracts allocable to such Debt Securities shall equal the principal amount payable at maturity of such Debt Securities. The Corporation and the Holders agree not to file any tax returns, or take a position with any tax authority, that is inconsistent with the characterization of the Debt Securities as debt.
(e) Unless otherwise specified pursuant to Section 2.03, the Corporation by the issuance and sale of any Unit and any Holder of a Unit by his acceptance thereof agree to (in the absence of any applicable administrative ruling or judicial determination to the contrary) treat the Securities that constitute any Unit as separate securities and to file all United States federal, state and local tax returns consistent with the treatment of such Unit as constituted by separate securities.
49
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of Holders. Without the consent of any Holders, the Corporation, when authorized by a Board Resolution or Officers’ Certificate, the Agent and the Collateral Agent, at any time and from time to time, may enter into one or more agreements supplemental hereto, in form satisfactory to the Agent, for any of the following purposes:
(i) to evidence the succession of another Person to the Corporation and the assumption by any such successor of the covenants of the Corporation herein and in the Purchase Contracts; or
(ii) to evidence and provide for the acceptance of appointment hereunder by a successor Agent or Collateral Agent with respect to the Units; or
(iii) to add to the covenants of the Corporation, Collateral Agent or Agent such further covenants, restrictions, conditions or provisions as the Corporation, Collateral Agent and Agent shall consider to be for the protection of the Holders, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions of the Corporation a Purchase Contract Default permitting the enforcement of all or any of the several remedies provided in this Agreement as herein set forth; provided that in respect of any such additional covenant, restriction, condition or provision such supplemental agreement may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such a Purchase Contract Default or may limit the remedies available to the Holders upon such a Purchase Contract Default or may limit the right of the Holders to waive such Purchase Default; or
(iv) to establish the form or terms of Units of any series as permitted by Sections 2.02 and 2.03 and/or to establish the form or terms of Purchase Contracts of any series as permitted by Sections 3.01 and 3.02;
(v) to comply with the Securities Act of 1933, as amended, the Exchange Act or the Investment Company Act of 1940, as amended;
(vi) to cure any ambiguity, to correct or supplement any provision herein or in the Purchase Contracts of any series that may be inconsistent with any other provision herein or therein, or to modify, alter, amend or supplement any other provisions with respect to matters or questions arising under this Agreement or under such Purchase Contracts; provided that such action shall not adversely affect the interests of the Holders in any material respect; or
(vii) to change or eliminate any of the provisions of this Agreement, provided that any such change or elimination (a) shall become effective only when there is no Outstanding Unit, Debt Security or Purchase Contract of any series created prior to the
50
execution of such supplemental agreement which is entitled to the benefit of such provisions or (b) shall not apply to any Unit, Debt Security or Purchase Contract Outstanding.
SECTION 7.02. Supplemental Agreements with Consent of Holders. With the consent of the Holders of not less than a majority of all Unsettled Purchase Contracts constituting a part of any series of Units Outstanding, in the case of clause (A) below, and with the consent of the Holders of not less than a majority of all Units Outstanding, in the case of clause (B) below, by Act of said Holders delivered to the Corporation and the Agent, the Corporation, when authorized by a Board Resolution or Officers’ Certificate, the Agent and the Collateral Agent may enter into an agreement or agreements supplemental hereto for the purpose of (A) modifying in any manner the terms of the Purchase Contracts or this Agreement with respect to the Purchase Contracts or the rights of the Holders of Units with respect to the Purchase Contracts or (B) modifying in any manner the other terms of this Agreement or the other rights of Holders of Units; provided, however, that no such supplemental agreement shall (i) without the consent of the Holder of each Outstanding Purchase Contract affected thereby in the case of clauses (1), (2) and (3) below and (ii) without the consent of the Holder of each Unit affected thereby, in the case of clauses (4) and (5) below:
(1) impair the right to institute suit for the enforcement of any Purchase Contract, or
(2) reduce the percentage of the Purchase Contracts constituting a part of any series of Units Outstanding, the consent of whose Holders is required for any modification or amendment of the provisions of this Agreement relating to the Purchase Contracts or for any waiver of any Purchase Contract Defaults hereunder and their consequences provided for in this Agreement relating to the Purchase Contracts, or
(3) modify or affect (in any manner materially adverse to the Holders) the Holders’ rights and obligations under the Purchase Contracts; or
(4) modify or affect (in any manner materially adverse to the Holders) the terms of this Agreement or such Holder’s Units (other than the terms referred to in clause (1), (2) or (3) above); or
(5) reduce the percentage of Holders of Units whose consent is required for any modification or amendment of the provisions of this Agreement (other than the terms referred to in clause (1), (2) or (3) above).
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 7.03. Execution of Supplemental Agreements. In exchange for accepting the additional agencies or duties created by, any supplemental agreement permitted
51
by this Article or the modifications thereby of the agencies or duties created by this Agreement, each of the Agent and the Collateral Agent shall be entitled to receive and (subject to Sections 6.01 and 5.03, respectively) shall be fully protected in relying upon, an opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement. Each of the Agent and the Collateral Agent may, but shall not be obligated to, enter into any such supplemental agreement that affects the Agent’s or the Collateral Agent’s rights, duties or immunities under this Agreement or otherwise.
SECTION 7.04. Effect of Supplemental Agreements. Upon the execution of any supplemental agreement under this Article, this Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of this Agreement for all purposes; and every Holder of Units, theretofore or thereafter authenticated, countersigned, executed and delivered hereunder and/or under the Indenture shall be bound thereby.
SECTION 7.05. Reference to Supplemental Agreements. Unit Certificates, Debt Securities and Purchase Contracts authenticated, countersigned, executed and delivered after the execution of any supplemental agreement pursuant to this Article may, and shall if required by the Agent, bear a notation in form approved by the Agent as to any matter provided for in such supplemental agreement. If the Corporation shall so determine, new Unit Certificates, Debt Securities and Purchase Contracts so modified as to conform, in the opinion of the Agent, and the Corporation, to any such supplemental agreement may be prepared and executed by the Corporation and authenticated, executed, countersigned and delivered by the Trustee and the Agent, as applicable, in exchange for Outstanding Unit Certificates, Debt Securities and Purchase Contracts.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions. The Corporation covenants that it will not merge or consolidate with any other corporation or sell, convey or lease all or substantially all of its assets to any Person, firm or corporation, except that the Corporation may merge or consolidate with, or sell, convey or lease all or substantially all of its assets to, any other corporation, provided that (i) the Corporation shall be the continuing corporation, or the successor corporation (if other than the Corporation) shall be a corporation organized and existing under the laws of the United States of America or a state thereof or the District of Columbia and such corporation shall assume the due and punctual performance and observance of all of the covenants and conditions of this Agreement to be performed by the Corporation by supplemental agreement in form satisfactory to the Agent and the Collateral Agent, executed and delivered to the Agent and the Collateral Agent by such corporation, and (ii) neither the Corporation nor such successor corporation immediately after such merger or consolidation, or such sale, conveyance or lease shall be in default in the performance of any such covenant or condition.
52
SECTION 8.02. Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Corporation with the same effect as if it had been named herein as the Corporation. Such successor corporation thereupon may cause to be signed, and may issue (subject to the provisions of the Indenture) either in its own name or in the name of Wells Fargo & Company any or all of the Unit Certificates, Debt Securities and Purchase Contracts issuable hereunder which theretofore shall not have been signed by the Corporation and delivered to the Agent; and, upon the order of such successor corporation, instead of the Corporation, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Trustee and the Agent shall authenticate, countersign, execute and deliver, as applicable, any Unit Certificates, Debt Securities and Purchase Contracts that previously shall have been signed and delivered by the officers of the Corporation to the Trustee and the Agent for authentication, execution and countersignature, and any Unit Certificates, Debt Securities and Purchase Contracts evidencing Units which such successor corporation thereafter shall cause to be signed and delivered to the Trustee and the Agent for such purpose. All the Purchase Contracts so issued shall in all respects have the same legal rank and benefit under this Agreement as the Purchase Contracts theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Purchase Contracts had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease such change in phraseology and form (but not in substance) may be made in the Unit Certificates and Purchase Contracts thereafter to be issued as may be appropriate.
SECTION 8.03. Opinion of Counsel to Agent. The Agent and the Collateral Agent, subject to Sections 6.01 and 6.03 and Sections 5.03 and 5.05, respectively, may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance or lease, and any such assumption, complies with the provisions of this Article.
ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts. The Corporation covenants and agrees for the benefit of the Holders of the Units that it will duly and punctually perform its obligations under the Purchase Contracts in accordance with the terms of the Purchase Contracts and this Agreement.
SECTION 9.02. Maintenance of Office or Agency. So long as Units or Purchase Contracts are authorized for issuance pursuant to this Agreement or are Outstanding hereunder, the Corporation will maintain in the City of Minneapolis, an office or agency where Registered Units may be presented or surrendered for payment or acquisition of Purchase Contract Property or where Purchase Contract Property or other property may be tendered for delivery, where Registered Units may be surrendered for registration of transfer
53
or exchange and where notices and demands to or upon the Corporation in respect of Units and this Agreement may be served. The Corporation hereby initially designates Wells Fargo Bank Minnesota, N.A. as its office or agency in the City of Minneapolis, for each of said purposes. The Corporation will give prompt written notice to the Agent of the location, and any change in the location, of such office or agency. The Corporation will maintain one or more offices or agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Units of such series, or the Securities constituting such Units, are listed) where the Unregistered Units, if any, of each series may be presented or surrendered for payment or acquisition of Purchase Contract Property or where Purchase Contract Property or other property may be tendered for delivery. No payment or delivery of Purchase Contract Property on any Unregistered Unit will be made upon presentation of such Unregistered Unit at an agency of the Corporation within the United States nor will any payment or delivery of Purchase Contract Property be made by transfer to an account in, or by mail to an address in, the United States unless pursuant to applicable United States laws and regulations then in effect such payment can be made without adverse tax consequences to the Corporation. Notwithstanding the foregoing, payments in U.S. dollars of Unregistered Units of any series appertaining thereto which are payable in Dollars may be made at an agency of the Corporation maintained in the City of Minneapolis if such payment in dollars at each agency maintained by the Corporation outside the United States for payment on such Unregistered Units is illegal or is effectively precluded by exchange controls or other similar restrictions. If at any time the Corporation shall fail to maintain any such required office or agency or shall fail to furnish the Agent with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Agent, and the Corporation hereby appoints the Agent as its agent to receive all such presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other offices or agencies where Debt Securities, Purchase Contracts and Unit Certificates 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 Corporation of its obligations to maintain offices or agencies provided for in this Section. The Corporation will give prompt written notice to the Agent of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 9.03. Money for Payments to Be Held in Trust. Any money or other property deposited with the Agent, in trust for payment with respect to any Unit, remaining unclaimed for two years after such payment has become due and payable shall be paid to the Corporation on request of the Corporation pursuant to an Officers’ Certificate; and the Holder of such Unit shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and all liability of the Agent with respect to such trust money or other property shall thereupon cease.
54
In the event that (i) the Corporation has delivered Purchase Contract Property (or the cash value thereof) to the Agent against tender of payment for such Purchase Contract Property (or, in the case of Purchase Contracts calling for the purchase of Purchase Contract Property by the Corporation, the Corporation has tendered payment) and (ii) a Holder of a Unit Certificate fails to present and surrender the appropriate Unit Certificate to the Agent, the Purchase Contract Property or the cash value thereof or the Corporation’s payment for Purchase Contract Property deliverable upon settlement of the Purchase Contracts or evidenced by such Unit Certificate, together with any distributions thereon (and, if an effective Cash Settlement with respect to the obligations under such Purchase Contracts has been made, payments in respect of principal of any Debt Securities that are part of such Units), shall be held by the Agent, in trust, for the benefit of such Holder, until such Unit Certificate is presented and surrendered or such Holder delivers to the Agent, the Trustee, and the Corporation (A) evidence to their satisfaction that such certificate has been destroyed, lost or stolen and (B) such security or indemnity as may be required by them to hold each of them and any agent of any of them harmless. In the event such Unit Certificate is not presented and surrendered or such Holder does not satisfy the applicable conditions specified in the preceding sentence on or prior to the date two years after the date of settlement of the related Purchase Contract any distributions received by the Agent with respect to the Purchase Contract Property delivered in respect of the Unit Certificates shall be paid to the Corporation, on the request of the Corporation pursuant to an Officers’ Certificate, and the Holders of such Unit shall thereafter, as unsecured general creditors, look only to the Corporation for payment thereof and all liability of the Agent with respect to such trust assets shall thereafter cease.
SECTION 9.04. Statements of Officers of the Corporation as to Default. The Corporation will deliver to the Agent, on or before in each year, an Officers’ Certificate stating whether or not to the best knowledge of the signers thereof the Corporation is in default in the performance and observance of any of the terms, provisions and conditions hereof or of any Purchase Contracts, and, if the Corporation shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts; Redemption Upon Redemption of Debt Securities. If this Article is specified as applicable pursuant to Section 3.02 in connection with the issuance of the Purchase Contracts of a series, any or all of such Purchase Contracts may be redeemed at the option of the Corporation, or from time to time in part, on such date or dates and at a redemption price per Purchase Contract as shall be specified pursuant to Section 3.02; provided that no redemption shall result in there being more than zero but fewer than the minimum amount of Unsettled Purchase Contracts that may remain Outstanding after such redemption, as specified pursuant to Section 3.02.
55
Unless otherwise specified pursuant to Section 2.03, in the event that the Corporation shall redeem any Debt Security constituting part of a Unit of any series pursuant to the provisions of the Indenture or such Debt Security, the Corporation shall redeem any Purchase Contract on the redemption date of such related Debt Security.
SECTION 10.02. Notice of Redemption; Partial Redemptions. Unless otherwise specified pursuant to Section 3.02, the Corporation or, upon Issuer Order of the Corporation, the Agent in the name and at the expense of the Corporation, shall give notice of redemption to the Holders of Purchase Contracts in the manner and to the extent provided in Section 11.06, at least 30 days and not more than 60 days prior to the date fixed for redemption. Any notice which is given in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Purchase Contract, shall not affect the validity of the proceedings for the redemption of any other Purchase Contract.
The notice of redemption to each Holder of Registered Purchase Contracts shall specify the number of Registered Purchase Contracts held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment and that payment will be made upon presentation and surrender of Unit Certificates with respect to such Registered Purchase Contracts evidenced by Unit Certificates.
The Corporation’s obligation to provide funds for redemption shall be deemed fulfilled if, on or before 12:00 noon, local time in the place of payment, on the redemption date specified in the notice of redemption given as provided in this Section, the Corporation shall deposit with the Agent or with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Purchase Contracts called for redemption at the appropriate redemption price, together with irrevocable instructions and authorization that such funds be applied to the redemption of the Purchase Contracts called for redemption upon surrender of Unit Certificates representing such Purchase Contracts, properly endorsed and assigned for transfer, in accordance with this Article.
The Corporation will deliver to the Agent at least 15 days prior to the mailing of the notice of redemption an Officers’ Certificate stating the aggregate number of Purchase Contracts to be redeemed on such date and that the Corporation has complied with the provisions of Section 10.01 and of said Purchase Contracts subject to said redemption.
If fewer than all the Purchase Contracts are to be redeemed, the Agent, prior to the mailing of the redemption notice, shall select the Purchase Contracts to be redeemed on a pro rata basis, by lot or by such other means as shall be acceptable to the Agent. Appropriate adjustment shall be made to prevent the fractional redemption of Purchase Contracts, such that Purchase Contracts are redeemed only in whole and not in part.
The Agent shall promptly notify the Corporation in writing of the Purchase Contracts so selected for redemption.
56
SECTION 10.03. Payment of Purchase Contracts Called for Redemption. If notice of redemption has been given as above provided, (i) the Purchase Contracts specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, and (ii) on and after the date fixed for redemption (unless the Corporation shall default in the payment of such Purchase Contracts at the redemption price) such Purchase Contracts shall cease from and after the date fixed for redemption to be entitled to any benefit under this Agreement, the Holders thereof shall have no right or obligation in respect of such Purchase Contracts except the right to receive the redemption price thereof and the Purchase Contracts shall terminate and shall no longer be deemed to be Outstanding.
If so specified pursuant to Section 3.02, on presentation and surrender of Unit Certificates representing such Purchase Contracts, properly endorsed and assigned for transfer, at a place of payment specified in said notice, said Purchase Contracts shall be paid and redeemed by the Corporation at the applicable redemption price. Following such redemption, the Unit Certificates evidencing such Closed Purchase Contracts shall be cancelled in accordance with Section 2.11. In the case of (i) Definitive Units, certificates evidencing any Outstanding Debt Securities relating to such redeemed Purchase Contracts shall be executed, authenticated and delivered in accordance with the terms of the Indenture and (ii) Global Units, if a Global Debt Security not constituting part of a Global Unit has not previously been issued by the Corporation, a second Global Debenture evidencing any Outstanding Debt Security relating to such redeemed Purchase Contracts shall be executed, authenticated and delivered in accordance with the Indenture. If a second Global Debt Security referred to in clause (ii) of the immediately preceding sentence has already been issued, the Agent shall note thereon an appropriate increase in the number of Debt Securities represented by such Global Debt Security.
Any interest accrued on funds deposited with the Agent or any Paying Agent in connection with this Article Ten shall be paid to the Corporation from time to time and the Holders of Purchase Contracts (whether or not such Purchase Contracts are to be redeemed with such funds) shall have no claim to any such interest. Any funds deposited and unclaimed at the end of two years from any redemption date shall be repaid or released to the Corporation, on the request of the Corporation pursuant to an Officers’ Certificate, after which the Holder(s) of Purchase Contracts so called for redemption shall look only to the Corporation for payment of the redemption price, without any interest thereon and all liability of the Agent with respect to the redemption price shall cease.
SECTION 10.04. Exclusion of Certain Purchase Contracts from Eligibility for Selection for Redemption. Purchase Contracts shall be excluded from eligibility for selection for a partial redemption if they are identified by registration and certificate number in an Officers’ Certificate delivered by the Corporation to the Agent at least 10 days prior to the date of the mailing of a notice of redemption as being owned of record and beneficially by, and not pledged or hypothecated by (a) the Corporation or (b) an Affiliate of the Corporation. Purchase Contracts shall also be excluded from eligibility for selection for a partial redemption if they are the subject of an Acceleration Notice.
57
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of the Corporation Immune from Liability. No recourse under or upon any obligation, covenant or agreement contained in this Agreement, or in any Debt Security or any Purchase Contract, or because of any indebtedness evidenced thereby, shall be had against any incorporator, or against any past, present or future stockholder, officer, attorney-in-fact or director, as such, of the Corporation or of any successor corporation, either directly or through the Corporation or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or penalty or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Units by the Holders thereof and as part of the consideration for the issue thereof, provided that nothing in this Article shall impair the obligations, covenants and agreements of the Corporation contained in this Agreement and in any Debt Securities or Purchase Contracts constituting a part of the Units of any series.
SECTION 11.02. Compliance Certificates and Opinions. Except as otherwise expressly provided by this Agreement, upon any application or request by the Corporation to the Agent or Collateral Agent to take any action under any provision of this Agreement, the Corporation, as applicable, shall furnish to the Agent or Collateral Agent an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Agreement 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 Agreement 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 Agreement shall include:
(i) a statement that each individual signing such certificate or opinion has reached such covenant or condition and the definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
58
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 11.03. Form of Documents Delivered to Agent or Collateral Agent. 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, statement or opinion of an officer or counsel of or for the Corporation 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 certificate, statement or opinion is based are erroneous. Any such certificate, statement or opinion may be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of, or representations by, an officer or officers of the Corporation, as applicable, stating that the information with respect to such factual matters is in the possession of the Corporation, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are 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 Agreement, they may, but need not, be consolidated and form one instrument.
SECTION 11.04. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement 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 and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Agent and, where it is hereby expressly required, to the Corporation. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to Section 6.01) conclusive in favor of the Agent and the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner that the Agent deems sufficient.
(c) Subject to Section 2.03(a)(vii), the ownership (i) of Registered Units of any series shall be proved by the Purchase Contract Register for such series, with respect to any Purchase Contracts constituting a part of such Units and the Debt Security Register for
59
such series, with respect to any Debt Securities constituting a part of such Units, and (ii) of Unregistered Units shall be proved by possession of the Unit Certificates evidencing such Units or by the appropriate records of the depositary for such units.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Unit Certificate shall bind every future Holder of the same Unit Certificate and the Holder of every Unit Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof with respect to anything done, omitted or suffered to be done by the Agent or the Corporation in reliance thereon, whether or not notation of such action is made upon such Unit Certificate.
(e) The Corporation may set a record date for purposes of determining the identity of Holders of Units entitled to consent to any action by consent authorized or permitted hereby. Unless otherwise specified pursuant to Section 2.03, 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 Units furnished to the Agent, pursuant hereto.
SECTION 11.05. Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,
(a) the Agent or the Collateral Agent, as the case may be, by any Holder or by the Corporation shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, to the Agent at its Corporate Trust Office or at any other address previously furnished in writing by the Agent or the Collateral Agent, as the case may be, to the Holders and the Corporation, or
(b) the Corporation by the Agent, the Collateral Agent or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, addressed to the Corporation at 420 Montgomery Street, San Francisco, California 94104, MAC # A0101-121, Attention: Chief Financial Officer, or at any other address previously furnished in writing to the Agent and the Collateral Agent by the Corporation.
SECTION 11.06. Notices to Holders; Waiver. Where this Agreement provides for notice to Holders of Registered Securities or Registered Units of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or as provided in the Letter of Representations) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at such Holders address as it appears in the relevant Security Registers, with respect to the Securities constituting such Unit, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Agreement provides for notice in any
60
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 Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Agent shall constitute a sufficient notification for every purpose hereunder.
Where this Agreement provides for notice to Holders of Unregistered Securities or Unregistered Units of any event, such notice shall be sufficiently given (unless otherwise specified herein or pursuant to Section 2.03 or 3.02) by publication in a newspaper in the English language of general circulation in the Borough of Manhattan, The City of New York, and in The City of London or, if publication in London is not practical, in an English language newspaper with general circulation in Western Europe. Such notices will be deemed to have been given on the date of such publication, or if published in such newspapers on different dates, on the date of the first such publication.
SECTION 11.07. 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 11.08. Successors and Assigns. All covenants and agreements in this Agreement, the Units, the Purchase Contracts and the Unit Certificates by the Corporation shall bind its successors and assigns, whether so expressed or not.
SECTION 11.09. Separability Clause. In case any provision in this Agreement or in the Units, Unit Certificates or the Purchase Contracts shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
SECTION 11.10. Benefits of Agreement. Nothing in this Agreement or in the Units, Unit Certificates, the Indenture, the Debt Securities or the Purchase Contracts, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be parties to this Agreement and shall be bound by all of the terms and conditions hereof and of the Indenture, the Units, the Debt Securities and the Purchase Contracts evidenced by the Units, by their acceptance of delivery of such Units.
SECTION 11.11. Governing Law. This Agreement, the Units, the Unit Certificates and the Purchase Contracts shall be governed and construed in accordance with the laws of the State of New York.
61
SECTION 11.12. Legal Holidays. Unless otherwise specified pursuant to Section 3.02, in any case where any Settlement Date shall not be a Business Day, then (notwithstanding any other provisions of this Agreement or the Purchase Contracts) the Purchase Contracts shall not be performed on such date, but shall be performed on the next succeeding Business Day with the same force and effect as if performed on such Settlement Date; provided that no interest or other amounts shall accrue or be payable by the Corporation or any Holder for the period from and after any such Settlement Date.
SECTION 11.13. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
SECTION 11.14. Appointment of Certain Agents. (a) Pursuant to Section 2.03 hereof, the Corporation may, in connection with any series of Purchase Contracts appoint or any other Person as Calculation Agent to make any calculations as may be required pursuant to the terms of any such series of Purchase Contracts. Any such Calculation Agent shall act as an independent expert and, unless otherwise provided by this Agreement, its calculations and determinations under this Agreement shall, absent manifest error, be final and binding on the Corporation, the Agent and the Holders. Any such calculations will be made available to the Holders for inspection at the Agent’s Office.
(b) Unless otherwise specified pursuant to Section 2.03, the Corporation hereby appoints as the Paying Agent under the Indenture with respect to each Debt Security comprised by any Unit issued hereunder.
SECTION 11.15. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office of the Agent for inspection by any Holder.
62
IN WITNESS WHEREOF, the Corporation, the Agent, the Collateral Agent, the Trustee and the Paying Agent have duly executed this Agreement as of the day and year first above set forth, and all Holders of Units shall become parties hereto by and upon acceptance by them of delivery of Units issued in accordance with the terms hereof.
|
WELLS FARGO & COMPANY |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
|
[ |
] |
|
|
|
||
|
as Agent |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
|
[ |
] |
|
|
|
||
|
as Collateral Agent |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
|
[ |
] |
|
|
|
||
|
as Trustee under the Indenture |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
|
[ |
] |
|
|
|
||
|
as Paying Agent under the Indenture |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
63
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL REGISTERED UNIT CERTIFICATE, INSERT—This Unit Certificate is a global Unit Certificate within the meaning of the Unit Agreement hereinafter referred to and is registered in the name of The Depository Trust Company (the “Depositary”) or a nominee of the Depositary. Unless and until it is exchanged in whole or in part for Units in definitive registered form, this Unit Certificate 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 Depositary or a nominee of such successor Depositary).
Unless this Unit Certificate is presented by an authorized representative of the Depositary (55 Water Street, New York) to Wells Fargo & Company or its agent for registration of transfer, exchange or payment, and any Unit issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
A-1
UNIT CERTIFICATE
(issuable in integral multiples of
Evidencing the Ownership of, or Rights and Obligations
of the Holder Under, the Securities
Specified Below
[Specify Securities Constituting Part of these Units]
|
CUSIP No. |
||
|
Certificate No. |
Number of Units [Up To] 1 |
This Unit Certificate certifies that (the “Holder”), or [registered assigns] 2 , is the [registered] 2 owner of [ ( ) Units] 3 [the number of Units specified in Schedule A hereto.] 1
Each Unit represents ownership by the Holder of [specify Securities constituting parts of the Unit] [, subject to the pledge of such Debt Securities by such Holder pursuant to the Unit Agreement (the “Unit Agreement”) dated as of , 20 among the Corporation, , as Agent and as Collateral Agent, and as Trustee and as Paying Agent under the Indenture referred to therein and the Holders from time to time of the Units described therein. Pursuant to the Unit Agreement, the Debt Securities constituting part of the Units evidenced hereby have been pledged to the Collateral Agent to secure the obligations of the Holder under the Purchase Contract constituting part of such Units.] 4
[For so long as the Purchase Contract underlying each Unit represented hereby remains in effect such Unit shall not be separable into its constituent parts and the rights and obligations of the Holder of such Unit in respect of such constituent parts may be transferred and exchanged only as a Unit.] 5
[Designated Security Register:] 6
[Other Terms of Units:]
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE]
| 1 | Insert in Global Unit Certificates |
| 2 | Insert in Registered Units |
| 3 | Insert in Definitive Unit Certificates |
A-2
| 4 | Insert in Registered Units consisting of Non-Separable Debt Securities and Purchase Contracts |
| 5 | Insert in non-separable Units. |
| 6 | Insert in non-separable registered Units |
Reference is hereby made to the further provisions of this certificate set forth on the succeeding pages hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
A-3
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY WELLS FARGO & COMPANY]
WELLS FARGO & COMPANY
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Wells Fargo & Company
and
or registered assigns,
as holder hereunder (the “Holder”)
All capitalized terms used but not defined herein that are defined in the Unit Agreement (described below) have the meanings set forth therein, and if not defined therein, have the meaning set forth below.
|
Purchase Contract Property: |
||
|
Quantity: |
||
|
Purchase Price Settlement Date: |
||
|
Payment Location: |
||
|
Method of Settlement: |
||
|
Currency of Settlement Payment: |
||
|
Authorized Number of Purchase Contracts: |
||
|
Aggregate Purchase Price: |
||
|
Contract Fees: |
||
|
Corporation Acceleration: |
||
|
Holder’s Acceleration: |
||
|
Redemption Provisions: |
||
|
Other Terms: |
A-4
Subject to the conditions hereinafter set forth, the Holder agrees to purchase and Wells Fargo & Company, a corporation duly incorporated and existing under the laws of the State of Delaware (the “Corporation”), agrees to sell, subject to the terms of the Unit Agreement referred to below and as set forth herein, on the Settlement Date, the Quantity of Purchase Contract Property, for the Purchase Price. The Purchase Contract(s) evidenced hereby shall not entitle the Holder to purchase the Purchase Contract Property prior to the Settlement Date.
The Purchase Price for the Purchase Contract Property purchased pursuant to the Purchase Contracts evidenced hereby shall be payable at the Payment Location on the Settlement Date pursuant to the Method of Settlement in the Currency of Settlement Payment.
Each Purchase Contract evidenced hereby is one of a duly authorized issue of not more than the Authorized Number of Purchase Contracts of the Corporation relating to the purchase by Holders of not more than the Aggregate Quantity of Purchase Contract Property issued under the Unit Agreement, dated as of (the “Unit Agreement”), among the Corporation, , as Agent (the “Agent”) and as Collateral Agent thereunder, and , as Trustee (the “Trustee”) and Paying Agent under the Indenture referred to therein, and the holders from time to time of Units, to which Unit Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Agent, the Collateral Agent, the Corporation and the Holders and of the terms upon which the Purchase Contracts are, and are to be, executed, countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents in connection with any transfer or exchange of each Purchase Contract evidenced hereby. No service charge shall be required for any such registration of transfer or exchange, but the Corporation and the Agent may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection with any registration of transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Agent pursuant to the Unit Agreement), under the terms of the Unit Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from the obligations under the Purchase Contracts hereby. The Corporation covenants and agrees, and the Holder, by his acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other property (other than the Purchase Contract Property) is payable or deliverable with respect to the
A-5
Purchase Contracts evidenced hereby is described above under “Contract Fees”. The extent to which, and the terms upon which, the Corporation may accelerate the obligations of the Corporation and the Holders of the Purchase Contracts evidenced hereby is described above under “Corporation Acceleration”. The extent to which, and the terms upon which, the Holders of such Purchase Contracts may accelerate the obligations of the Corporation and the Holders of the Purchase Contracts is described above under “Holders’ Acceleration”. The extent to which, and the terms upon which, the Corporation may redeem the Purchase Contracts evidenced hereby is described above under “Redemption Provisions”.
Subject to certain exceptions, the terms of the Purchase Contracts and the provisions of the Unit Agreement may be amended with the consent of the affected Holders of not less than a majority of the Purchase Contracts evidenced by all Outstanding Units and certain Purchase Contract Defaults may be waived with the consent of the Holders of a majority of the Purchase Contracts evidenced by all Outstanding Units. Without the consent of any Holder of Units, the terms of the Unit Agreement the Purchase Contracts may be amended to, among other things, cure any ambiguity, to correct or supplement any provision in the Unit Agreement or Purchase Contract to add to covenants of the Corporation, Collateral Agent or Agent or to make any other provisions with respect to matters or questions arising under the Unit Agreement or the Purchase Contracts that do not adversely affect the interests of the Holders in any material respect.
Holders of the Purchase Contracts may not enforce the Unit Agreement or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder, officer, attorney-in-fact or director, as such, of the Corporation shall not have any liability for any obligations of the Corporation under the Purchase Contracts or the Unit Agreement or for any claim based on, with respect to or by reason of such obligations or their creation. The Holder by his acceptance hereof waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase Contract for registration of transfer, the Corporation, the Trustee, the Agent and the Collateral Agent, and any agent of the Corporation, the Trustee, the Agent and the Collateral Agent may treat the Person in whose name this Purchase Contract is registered as a party to the Purchase Contracts evidenced hereby for the purpose of performance of such Purchase Contracts and for all other purposes whatsoever, and neither the Corporation, the Trustee, the Agent and the Collateral Agent nor any such agent shall be affected by notice to the contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute the Purchase Contracts evidenced hereby on his behalf, authorizes and directs the Agent on his behalf to take such other action, and covenants and agrees to take such other action, as may be necessary or appropriate, or as may be required by the Agent, to effectuate the provisions
A-6
of the Unit Agreement relating to the purchase of the Purchase Contract Property [and the pledge of the Debt Securities constituting part of the Unit of which this Purchase Contract forms a part to the Collateral Agent on the Holders behalf,] 7 appoints the agent as his attorney-in-fact for any and all such purposes, and agrees to be bound by the terms thereof.
The Purchase Contracts shall not, prior to the performance thereof, entitle the Holder to any of the rights of a holder of the Purchase Contract Property.
No Purchase Contract evidenced hereby shall be valid or obligatory for any purpose until countersigned and executed on behalf of the Holder by the Agent, pursuant to the Unit Agreement.
| 7 | Insert in Registered Units consisting of Non-Separable Debt Securities and Purchase Contracts. |
A-7
IN WITNESS WHEREOF, Wells Fargo & Company has caused this instrument to be duly executed.
|
WELLS FARGO & COMPANY |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
|
, |
||
|
as Agent, and as attorney-in-fact of the Holder hereof |
||
|
By |
||
|
|
||
|
AuthorizedOfficer |
||
|
Countersigned |
||
|
, |
||
|
as Agent |
||
|
By: |
||
|
|
||
|
Authorized Officer |
||
A-8
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY WELLS FARGO & COMPANY
WELLS FARGO & COMPANY
PURCHASE CONTRACT(S)
Purchase Contracts between
Wells Fargo & Company
and
or registered assigns,
as holder hereunder (the “Holder”)
All capitalized terms used but not defined herein that are defined in the Unit Agreement (described below) have the meanings set forth therein, and if not defined therein, have the meaning set forth below.
|
Purchase Contract Property: |
||
|
Quantity: |
||
|
Purchase Price: |
||
|
Settlement Date: |
||
|
Payment Location: |
||
|
Method of Settlement: |
||
|
Method of Computing Settlement Amount: |
||
|
Currency of Settlement Payment: |
||
|
Authorized Number of Purchase Contracts: |
||
|
Aggregate Purchase Price: |
||
|
Contract Fees: |
||
|
Corporation Acceleration: |
||
|
Holders’ Acceleration |
A-9
|
Redemption Provisions: |
||
|
Other Terms: |
Subject to the conditions hereinafter set forth, the Holder agrees to sell and Wells Fargo & Company, a corporation duly incorporated and existing under the laws of the State of Delaware (the “Corporation”), agrees to purchase, subject to the terms of the Unit Agreement referred to below and as set forth herein, on the Settlement Date, the Quantity of Purchase Contract Property, for the Purchase Price. The Purchase Contract(s) evidenced hereby shall not entitle the Corporation to purchase the Purchase Contract Property, or the Holder to receive the Purchase Price, prior to the Settlement Date.
If so indicated under Method of Settlement above, the parties’ obligations under the Purchase Contracts evidenced hereby may be settled by payment of the Settlement Amount by the Corporation or the Holder, as the case may be. The Settlement Amount payable pursuant to the Purchase Contracts evidenced hereby, as determined in accordance with the Method of Computing Settlement Amount, shall be payable on the Settlement Date in the Currency of Settlement Payment pursuant to the Method of Settlement at the Payment Location; provided that any Settlement Amount payable by Holders pursuant to the Purchase Contracts evidenced hereby may be deducted from the principal payment that may be payable by the Corporation with respect to any Debt Securities comprised by the Units of which such Purchase Contacts are a part.
Each Purchase Contract evidenced hereby is one of a duly authorized issue of not more than the Authorized Number of Purchase Contracts of the Corporation issued under the Unit Agreement, dated as of (the “Unit Agreement”), among the Corporation, , as Agent (the “Agent”) and as Collateral Agent thereunder and , as Trustee (the “Trustee”) and , as Paying Agent under the Indenture referred to therein, and the holders from time to time of Units, to which Unit Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Agent, the Corporation and the Holders and of the terms upon which the Purchase Contracts are, and are to be, executed, countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents in connection with any transfer or exchange of each Purchase Contract evidenced hereby. No service charge shall be required for any such registration of transfer or exchange, but the Corporation and the Agent may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection with any registration of transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may
A-10
be required by the Agent pursuant to the Unit Agreement), under the terms of the Unit Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from the obligations under the Purchase Contracts hereby. The Corporation covenants and agrees, and the Holder, by his acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other property (other than the Purchase Contract Property) is payable or deliverable with respect to the Purchase Contracts evidenced hereby is described above under “Contract Fees”. The extent to which, and the terms upon which, the Corporation may accelerate the obligations of the Corporation and the Holders of the Purchase Contracts evidenced hereby is described above under “Corporation Acceleration”. The extent to which, and the terms upon which, the Holders of such Purchase Contracts may accelerate the obligations of the Corporation and the Holders of the Purchase Contracts is described above under “Holders’ Acceleration”. The extent to which, and the terms upon which, the Corporation may redeem the Purchase Contracts evidenced hereby is described above under “Redemption Provisions”.
Subject to certain exceptions, the terms of the Purchase Contracts and the provisions of the Unit Agreement may be amended with the consent of the affected Holders of not less than a majority of the Purchase Contracts evidenced by all Outstanding Units and certain Purchase Contract Defaults may be waived with the consent of the Holders of a majority of the Purchase Contracts evidenced by all Outstanding Units. Without the consent of any Holder of Units, the terms of the Unit Agreement or the Purchase Contracts may be amended to, among other things, cure any ambiguity, to correct or supplement any provision in the Unit Agreement or Purchase Contract, to add to the covenants of the Corporation, Collateral Agent or Agent for the protection of the Holders, or to make any other provisions with respect to matters or questions arising under the Unit Agreement or the Purchase Contracts that do not adversely affect the interests of the Holders in any material respect.
Holders of the Purchase Contracts may not enforce the Unit Agreement or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder, officer, attorney-in-fact or director, as such, of the Corporation shall not have any liability for any obligations of the Corporation under the Purchase Contracts or the Unit Agreement or for any claim based on, with respect to or by reason of such obligations or their creation. The Holder by his acceptance hereof waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase Contract for registration of transfer, the Corporation, the Agent, the Trustee and the Collateral Agent, and any agent of the Corporation, the Agent, the Trustee and the Collateral Agent may treat the Person in whose name this Purchase Contract is registered as a party to the Purchase
A-11
Contracts evidenced hereby for the purpose of performance of such Purchase Contracts and for all other purposes whatsoever, and neither the Corporation, the Agent, the Trustee and the Collateral Agent nor any such agent shall be affected by notice to the contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute the Purchase Contracts evidenced hereby on his behalf, authorizes and directs the Agent on his behalf to take such other action, and covenants and agrees to take such other action, as may be necessary or appropriate, or as may be required by the Agent, to effectuate the provisions of the Unit Agreement relating to the purchase of the Purchase Contract Property [and the pledge of the Debt Securities constituting part of the Unit of which this Purchase Contract forms a part to the Collateral Agent on the Holder’s behalf,] 8 appoints the agent as his attorney-in-fact for any and all such purposes, and agrees to be bound by the terms thereof.
No Purchase Contract evidenced hereby shall be valid or obligatory for any purpose until countersigned and executed on behalf of the Holder by the Agent, pursuant to the Unit Agreement.
| 8 | Insert in Registered Units consisting of Debt Securities and Purchase Contracts. |
A-12
IN WITNESS WHEREOF, Wells Fargo & Company has caused this instrument to be duly executed.
|
WELLS FARGO & COMPANY |
||
|
By: |
||
|
|
||
|
Name: Title: |
||
|
, |
||
|
as Agent, and as attorney-in-fact of the Holder hereof |
||
|
By |
||
|
|
||
|
AuthorizedOfficer |
||
|
Countersigned |
||
|
, |
||
|
as Agent |
||
|
By: |
||
|
|
||
|
Authorized Officer |
||
A-13
[IF PURCHASE CONTRACT IS A GLOBAL PURCHASE CONTRACT, INSERT]
SCHEDULE I
GLOBAL
PURCHASE CONTRACT
SCHEDULE OF EXCHANGES
The initial number of Purchase Contracts represented by this Global Purchase Contract is . In accordance with the Unit Agreement pursuant to which this Global Purchase Contract has been issued, the following (A) exchanges of [the number of Purchase Contracts indicated below for a like number of Purchase Contracts represented by a Global Purchase Contract that has been separated from a Unit (a “Separated Purchase Contract”)] 1 [the number of Purchase Contracts that had been represented by a Global Purchase Contract that is part of a Unit (an “Attached Unit Purchase Contract”) for a like number of Purchase Contracts represented by this Purchase Contract] 2 and (B) settlements of the number of Purchase Contracts indicated below have been made:
|
Date of Exchange or Settlement |
Number Exchanged for Separated Purchase Contract 1 |
Reduced Number Outstanding Following Such Exchange 1 |
Number of Attached Unit Purchase Contracts Exchanged for Purchase Contracts represented by this Separated Purchase Contract 2 |
Increased Number Outstanding Following Such Exchange |
Number of Purchase Contracts Settled |
Reduced Number Outstanding Following Such Settlement |
||||||
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
| 1 | Applies only if this Purchase Contract is part of a Unit. |
| 2 | Applies only if this Purchase Contract has been separated from a Unit. |
A-14
[IF PURCHASE CONTRACT IS SEPARATED FROM UNIT, INSERT]
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Purchase Contract(s) represented by this Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Certificate on the books of the Corporation. The agent may substitute another to act for him or her.
Date:
Signature(s):
|
|
||||
|
|
||||
|
(Sign exactly as your name appears on the other side of this Certificate) |
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.]
A-15
[IF UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE, INSERT -
SCHEDULE A
GLOBAL
UNIT CERTIFICATE
SCHEDULE OF EXCHANGES
The initial number of Units represented by this Global Unit Certificate is . In accordance with the Unit Agreement pursuant to which this Global Unit Certificate has been issued, the following reductions of the number of Units represented by this Global Unit Certificate have occurred:
|
Date of Reduction |
Number Reduced by Separation of the Component Parts of this Unit |
Number Reduced by Settlement of Purchase Contracts |
Number of Units Outstanding Following any such Reduction |
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
|
|
|
A-16
[IF UNIT IS A DEFINITIVE UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Unit(s) represented by this Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Unit Certificate on the books of the Corporation. The agent may substitute another to act for him or her.
Date:
Signature(s):
|
|
||||
|
|
||||
|
(Sign exactly as your name appears on the other side of this Certificate) |
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.]
A-17
EXHIBIT 5(a)
March 10, 2003
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Ladies and Gentlemen:
I am Senior Counsel of Wells Fargo & Company (the “Company”) and, as such, I, together with other attorneys in the Wells Fargo Law Department, have acted as counsel for the Company in connection with the preparation of a Registration Statement on Form S-3 (the “Registration Statement”) of the Company and Wells Fargo Capital VII, Wells Fargo Capital VIII, Wells Fargo Capital IX and Wells Fargo Capital X filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, (the “Securities Act”) relating to the proposed offer and sale from time to time of the following securities (the “Securities”) having an aggregate initial offering price of up to $15,191,487,000: (i) unsecured senior debt securities of the Company in the forms filed as part of Exhibit 4(z) and as Exhibit 4(aa) to the Registration Statement, with appropriate insertions (the “Senior Debt Securities”), (ii) unsecured subordinated debt securities of the Company in the forms filed as part of Exhibit 4(z) and as Exhibit 4(bb) to the Registration Statement, with appropriate insertions, (the “Subordinated Debt Securities”), (iii) unsecured junior subordinated debt securities of the Company in the form filed as Exhibit 4(cc) to the Registration Statement, with appropriate insertions (the “Junior Subordinated Debt Securities,” and together with the Senior Debt Securities and the Subordinated Debt Securities, the “Debt Securities”), (iv) preferred stock and preference stock, no par value, (the “Preferred Stock”) of the Company, interests in which may be evidenced by appropriately prepared depositary shares (the “Depositary Shares”), (v) common stock, par value $1 2/3 per share, (the “Common Stock”) of the Company issuable upon conversion of Debt Securities, Preferred Stock, or Depositary Shares, or upon exercise of warrants, (vi) appropriately prepared warrants to purchase Debt Securities, Preferred Stock, or Common Stock (the “Warrants”) and (vii) purchase contracts in the forms filed as Exhibits 4(ss) and 4(tt) requiring the holders thereof to purchase or sell (a) securities of an entity unaffiliated with the Company, a basket of such securities, an index or indices of such securities or any combination of the above, (b) currencies or (c) commodities (the “Purchase Contracts”). The Securities may be offered separately or together 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.
Wells Fargo & Company
March 10, 2003
Page 2
The Senior Debt Securities are to be issued under one or more indentures in the form filed as Exhibit 4(w) to the Registration Statement, with appropriate insertions, (the “Senior Indenture”) to be entered into by the Company and a trustee or trustees to be named by the Company. The Subordinated Debt Securities are to be issued under one or more indentures in the form filed as Exhibit 4(x) to the Registration Statement, with appropriate insertions, (the “Subordinated Indenture”) to be entered into by the Company and a trustee or trustees to be named by the Company. The Junior Subordinated Debt Securities are to be issued under one or more indentures in the form filed as Exhibit 4(y) to the Registration Statement, with appropriate insertions (the “Junior Subordinated Indenture”) to be entered into by the Company and a trustee or trustees to be named by the Company. Each series of Preferred Stock is to be issued under the Restated Certificate of Incorporation, as amended, of the Company (the “Certificate of Incorporation”) and a certificate of designations (a “Certificate of Designations”) to be approved by the Board of Directors of the Company 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(hh) to the Registration Statement, with appropriate insertions, (the “Deposit Agreement”) to be entered into by the Company, a depositary to be named by the Company, 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(ii) to 4(kk) to the Registration Statement, with appropriate insertions, (the “Warrant Agreements”) to be entered into by the Company and warrant agents to be named by the Company. The Purchase Contracts are to be issued under a purchase contract agreement (the “Purchase Contract Agreement”) and a unit agreement to be entered into by the Company and a unit agent or agents to be named by the Company (the “Unit Agreement”) in the forms filed as Exhibits 4(rr) to 4(tt) to the Registration Statement, with appropriate insertions.
Certain terms of the Securities to be issued by the Company from time to time will be approved by the Board of Directors of the Company or a committee thereof or certain authorized officers of the Company 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 Company, 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 Company of the Senior Indenture, the Subordinated Indenture or the Junior Subordinated Indenture, as the case may be, or the execution and delivery of the Deposit Agreement, the applicable Warrant Agreement, or the applicable Purchase Contract Agreement and the Unit Agreement following the completion of all required Corporate
Wells Fargo & Company
March 10, 2003
Page 3
Proceedings, and the execution, issuance, and delivery, and the authentication by a duly appointed trustee, of the Senior Debt Securities, Subordinated Debt Securities and Junior Subordinated Debt Securities, the Depositary Shares, the Warrants and the Purchase Contracts, respectively, pursuant to such agreements, such Senior Indenture, Subordinated Indenture or Junior Subordinated Indenture, Deposit Agreement, Warrant Agreement, Purchase Contract Agreement or Unit Agreement, as the case may be, will become valid and binding instruments, and any Debt Securities, Warrants or Purchase Contracts issuable thereunder will be legal, valid, and binding obligations of the Company, 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 following 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, following 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 the legality, validity, binding effect and enforceability of provisions of such instruments and agreements may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws of general application affecting the enforcement of creditors’ rights and by general equity principles, including without limitation, concepts of materiality, reasonableness, good faith, fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies, whether considered in a proceeding in equity or at law. The foregoing opinions assume that (a) the execution of the Senior Indenture, Subordinated Indenture, Junior Subordinated Indenture, Deposit Agreement, the applicable Warrant Agreement, the applicable Purchase Contract Agreement, the Unit Agreement, the Certificate of Designations and the Securities is by an officer or officers of the Company authorized by the Corporate Proceedings; (b) the consideration designated in the applicable Corporate Proceedings for any Preferred Stock or Common Stock shall have been received by the Company in accordance with applicable law; (c) the Senior Indenture, the Subordinated Indenture, the Junior Subordinated Indenture, the Deposit Agreement, any Warrant Agreement, any Purchase Contract Agreement and the Unit Agreement shall have been duly authorized, executed, and delivered by all parties thereto other than the Company; (d) the Registration Statement shall have become effective under the Securities Act and will continue to be effective; (e) the applicable Senior Indenture, Subordinated Indenture or Junior Subordinated Indenture shall have become duly qualified under the Trust Indenture Act of 1939, as amended; and (f) 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
Wells Fargo & Company
March 10, 2003
Page 4
issuance and sale thereof nor the compliance by the Company with the terms thereof will result in a violation of any issuance limit in the Corporate Proceedings, any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction over the Company.
I have also assumed (a) the accuracy and truthfulness of all public records of the Company and of all certifications, documents and other proceedings examined by me that have been produced by officials of the Company 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 Junior Subordinated Indenture, the Deposit Agreement, the Warrant Agreements, the Purchase Contract Agreements and the Unit Agreement (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 (i) of the preceding paragraph are given as if the law of the State of 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/ M ARY E. S CHAFFNER
Mary E. Schaffner
EXHIBIT 5(b)
March 10, 2003
Wells Fargo & Company
420 Montgomery Street
San Francisco, CA 94163
| Re: | Wells Fargo Capital Trusts VII, VIII, IX and X |
Ladies and Gentlemen:
We have acted as special Delaware counsel for Wells Fargo & Company, a Delaware corporation (the “Company”), and Wells Fargo Capital Trusts VII through X, each a Delaware statutory trust (each, a “Trust” and collectively, the “Trusts”), in connection with the matters set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following:
| (a) | The Declaration of Trust and Trust Agreement for Wells Fargo Capital Trust VII, dated as of August 7, 2001, among the Company, Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee, and Laurel A. Holschuh and Barbara S. Brett, each as a trustee; |
| (b) | The Declaration of Trust and Trust Agreement for each of Wells Fargo Capital Trusts VIII and IX, each dated as of February 7, 2002, among the Company, Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee, and Laurel A. Holschuh and Barbara S. Brett, each as a trustee; |
| (c) | The Declaration of Trust and Trust Agreement, for Wells Fargo Capital Trust X, dated as of March 4, 2003, among the Company, Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee, and Laurel A. Holschuh and Barbara S. Brett, each as a trustee (the documents identified in items (a) through (c) being collectively referred to as the “Original Declarations of Trust”); |
Wells Fargo & Company
March 10, 2003
Page 2
| (d) | A certified copy of the Certificate of Trust for Wells Fargo Capital Trust VII, as filed with the Office of the Secretary of State of the State of Delaware (the “Secretary of State”) on August 7, 2001; |
| (e) | A certified copy of the Certificate of Trust for each of Wells Fargo Capital Trust VIII and IX, each as filed with the Secretary of State on February 7, 2002; |
| (f) | A certified copy of the Certificate of Trust for Wells Fargo Capital Trust X, as filed with the Secretary of State on March 4, 2003 (the documents identified in items (d) through (f) being collectively referred to as the “Certificates of Trust”); |
| (g) | A form of Amended and Restated Declaration of Trust and Trust Agreement for each Trust, among the Company, the trustees named therein and the holders, from time to time, of the undivided beneficial ownership interests in the assets of such Trust (including Exhibit A thereto), filed as Exhibit 4(m)(m) to the Company’s Registration Statement on Form S-3 (No. 333- ) filed by the Company with the Securities and Exchange Commission (the “Commission”) on February 28, 2002 and incorporated into the Registration Statement (as defined below) by reference (the “Amended and Restated Trust Agreements;” and, together with the Original Trust Agreements, the “Trust Agreements”); |
| (h) | The Registration Statement (the “Registration Statement”) on Form S-3 (Registration No. 333- , including a preliminary prospectus with respect to each Trust (the “Prospectus”), relating to the Trust Preferred Securities of each Trust representing preferred undivided beneficial ownership interests in the assets of each Trust, filed by the Company and the Trusts with the Commission on or about March 6, 2003; and |
| (i) | A Certificate of Good Standing for each Trust, each dated March 6, 2003, obtained from the Secretary of State. |
Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (i) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (i) above) that is referred to in or incorporated by reference into the documents reviewed
Wells Fargo & Company
March 10, 2003
Page 3
by us. We have assumed that there exists no provision in any document that we have not reviewed that bears upon or is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each Trust Agreement will constitute the entire agreement among the parties thereto with respect to the subject matter thereof, including with respect to the creation, operation and termination of each Trust, that the Certificates of Trust are in full force and effect and have not been further amended and that the Trust Agreements will be in full force and effect and will be executed in substantially the forms reviewed by us, (ii) except to the extent provided in paragraph 1 below, the due creation or due organization or due formation, as the case may be, and valid existence in good standing of each party to the documents examined by us under the laws of the jurisdiction governing its creation, organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) the due authorization, execution and delivery by all parties thereto of all documents examined by us, (vi) the receipt by each Person to whom Trust Preferred Securities are to be issued by the Trusts (collectively, the “Preferred Security Holders”) of a Trust Preferred Security Certificate for such Trust Preferred Security and the payment for the Trust Preferred Security acquired by it, in accordance with the Trust Agreements and the Registration Statement, and (vii) that the Trust Preferred Securities are issued and sold to the Trust Preferred Security Holders in accordance with the Trust Agreements and the Registration Statement. We have not participated in the preparation of the Registration Statement or Prospectus and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and
Wells Fargo & Company
March 10, 2003
Page 4
subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that:
1. Each Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq.
2. The Trust Preferred Securities of each Trust have been duly authorized by each Trust Agreement and, when executed and delivered in accordance with the Trust Agreement, will be duly and validly issued and, subject to the qualifications set forth in paragraph 3 below, fully paid and non-assessable undivided beneficial interests in the assets of their respective Trust.
3. The Trust Preferred Security Holders, as beneficial owners of the Trusts, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Trust Preferred Security Holders may be obligated to make payments as set forth in the Trust Agreements.
We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the reference to us as local counsel under the headings “Legal Opinions” in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ R ICHARDS , L AYTON & F INGER , P.A.
DKD/jmb
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Wells Fargo & Company:
We consent to the incorporation by reference in the Registration Statement on Form S-3 (the “Registration Statement”) of Wells Fargo & Company (the “Company”) relating to the registration of $15,260,549,000 of various debt and equity securities and an unspecified amount of junior subordinated debt securities, of our report dated January 15, 2002, with respect to the consolidated balance sheet of Wells Fargo & Company and Subsidiaries as of December 31, 2001 and 2000, 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, 2001, which report is incorporated by reference in the Company’s December 31, 2001 Annual Report on Form 10-K, and to the references to our firm under the heading “Experts” in the prospectuses included in the Registration Statement.
/s/ KPMG LLP
San Francisco, California
March 10, 2003
EXHIBIT 24(a)
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ J.A. Blanchard III |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Michael R. Bowlin |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ David A. Christensen |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Spencer F. Eccles |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Susan E. Engel |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Robert L. Joss |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Reatha Clark King |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Richard M. Kovacevich |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Richard D. McCormick |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Cynthia H. Milligan |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Benjamin F. Montoya |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Philip J. Quigley |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Donald B. Rice |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Judith M. Runstad |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Susan G. Swenson |
WELLS FARGO & COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer of WELLS FARGO & COMPANY, a Delaware corporation, does hereby make, constitute and appoint RICHARD M. KOVACEVICH, HOWARD I. ATKINS, STANLEY S. STROUP, AND LAUREL A. HOLSCHUH, and each or any of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements on Form S-3 or other applicable form, and all amendments, including post-effective amendments, thereto, and all registration statements for the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C. in connection with the registration under the Securities Act of 1933, as amended, of debt and equity securities, including preferred and other securities(herein, “Trust Securities”) issued by one or more trusts (herein, “Trusts”) formed and controlled by said Company, guarantees, limited guarantees and similar purchase and other obligations of said Company of or relating to Trust Securities, purchase contracts requiring or permitting the holders thereof to purchase or sell securities of an entity not affiliated with the Company, a basket of such securities, an index or indices of such securities, or any combination of the foregoing, or currencies or commodities, and common stock of said Company, and other securities related thereto (all of the foregoing being referred to in this Power of Attorney as “Securities”), in an aggregate amount not to exceed $22,500,000,000, proposed to be sold by said Company and one or more Trusts from time to time, and/or proposed to be registered by the Company and such Trust or Trusts for re-sale and/or exchange on behalf of one or more holders of such Securities, and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this 28 th day of January, 2003.
|
/s/ Michael W. Wright |