1 AGREEMENT
AGREEMENT (this "Agreement") dated January 23, 1996 among FIRST
BANK SYSTEM, INC., a Delaware corporation ("FBS"), ELEVEN ACQUISITION
CORP., a Delaware corporation and an indirect wholly-owned subsidiary of
FBS ("Acquisition"), FIRST INTERSTATE BANCORP, a Delaware corporation
("FI"), and WELLS FARGO & COMPANY, a Delaware corporation ("Wells").
WHEREAS, FBS, Acquisition and FI entered into an Agreement and
Plan of Merger dated as of November 5, 1995 (the "Merger Agreement")
providing, upon the terms and subject to the conditions contained in the
Merger Agreement, for Acquisition to be merged with and into FI (the
"Merger");
WHEREAS, in connection with the Merger Agreement, FI and FBS
entered into a Stock Option Agreement dated as of November 5, 1995 (the "FI
Option Agreement") pursuant to which FI granted to FBS an irrevocable
option (the "FI Stock Option") to purchase shares of FI Common Stock;
WHEREAS, in connection with the Merger Agreement, FI and FBS
entered into a Letter Agreement dated November 5, 1995 (the "FI Fee
Agreement") pursuant to which FI agreed to pay FBS certain amounts under
certain circumstances;
WHEREAS, concurrently with the execution and delivery of this
Agreement FI is terminating the Merger Agreement pursuant to Section 8.1(f)
thereof and entering into an agreement and plan of merger with Wells (the
"Wells Merger Agreement"); and
WHEREAS, certain litigation is pending between the parties
hereto;
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the parties do hereby agree as follows:
1. Payments by FI to FBS. (a) FI irrevocably and
unconditionally agrees to pay FBS as early as practicable on January 24,
1996, by wire transfer in immediately available funds, $125,000,000;
2
(b) Upon the occurrence of an Acquisition Event (as defined in
the FI Fee Agreement), FI irrevocably and unconditionally agrees to pay
FBS, on the date of such occurrence, by wire transfer in immediately avail-
able funds, $75,000,000; and
(c) The payment pursuant to Section 1(a) of this Agreement
shall be in full satisfaction of FI's obligations under the FI Option
Agreement and, to the extent provided in the Releases (as hereinafter
defined), in satisfaction of any claims that FBS may have against FI and
any other releasee for breach of the Merger Agreement and any claims that
FBS may have against Wells for tortious interference with the contractual
or prospective economic advantage resulting from the Merger Agreement, and
the payments pursuant to Sections 1(a) and 1(b) of this Agreement shall be
in full satisfaction of FI's obligations under the FI Fee Agreement.
2. Termination of Merger Agreement and Parent Agreements.
FBS, FI and Acquisition agree that the Merger Agreement is hereby
terminated by FI in accordance with Section 8.1(f) thereof. FBS and FI
further agree that the Parent Fee Letter and the Parent Option Agreement
(as such terms are defined in the Merger Agreement) are terminated and
rendered null and void effective immediately.
3. Termination of FI Option Agreement and FI Fee Agreement.
FBS and FI agree that (i) FBS shall have no further rights under the FI
Option Agreement and such agreement shall be terminated and rendered null
and void effective immediately upon full and timely payment to FBS of the
amount referred to in Section 1(a) and (ii) FBS shall have no further
rights under the FI Fee Agreement immediately upon full and timely payment
to FBS of the amounts referred to in Sections 1(a) and 1(b) hereof. FBS
and FI further agree that the FI Fee Agreement shall remain in full force
and effect until the timely payment to FBS of the amount referred to in
Section 1(b) hereof, provided, however, that FBS agrees not to seek any
amounts under the FI Fee Agreement unless and until the Wells Merger
Agreement is terminated without consummation of an Acquisition Event
involving Wells. FBS and FI further agree that if the Wells Merger
Agreement is terminated after payment of the amount referred to in Section
1(a) and prior to the payment to FBS of the
3
amount referred to in Section 1(b) hereof, $25 million of the amount paid
to FBS pursuant to Section 1(a) hereof shall constitute payment pursuant to
Section 2(a) of the FI Fee Agreement.
4. Release; Withdrawal of Litigation, Regulatory Filings and
Protests. Each of FBS, Acquisition, Wells and FI shall execute releases
immediately upon execution of this Agreement, substantially in the form
attached hereto as Exhibits A, B, C and D, as applicable (collectively the
"Releases"). Each party hereto shall take all steps necessary promptly to
withdraw or otherwise finally terminate with prejudice, without costs
imposed on any party, all litigation initiated by such party and to which
the Releases relate, including without limitation the cases set forth on
Schedule 4. In addition, each party hereto will promptly withdraw any pro-
test or opposition which it has filed with the Board of Governors of the
Federal Reserve System or any other bank regulatory agency concerning any
application filed by any other party hereto with any such agency. FBS
further agrees that it shall promptly following the execution of this
Agreement (i) withdraw its application filed with the Federal Reserve Bank
of Minneapolis on November 10, 1995 for approval from the Federal Reserve
Board of the Merger and the transactions contemplated thereby and all
applications and/or notices filed with state regulatory authorities in
connection with the Merger and (ii) withdraw or amend to be inapplicable to
any merger between FBS and FI or any acquisition by FBS of FI its Registra-
tion Statement on Form S-4 (File No. 33-64447) filed on November 21, 1995
with the Securities and Exchange Commission, as amended by Amendment No. 1
thereto dated December 29, 1995.
5. Effect of Termination; Confidentiality. (a) FBS,
Acquisition and FI agree that notwithstanding clause (ii) of Section 8.2 of
the Merger Agreement, none of FBS, Acquisition or FI shall have any
liabilities for any breach or alleged breach of the Merger Agreement,
including any willful breach. As provided in clause (i) of said Section
8.2, Sections 6.2(b), 8.2 and 9.3 of the Merger Agreement and the
Confidentiality Agreement (as defined in said Section 6.2(b)) shall survive
the termination of the Merger Agreement. Wells hereby agrees to be bound
by the confidentiality undertakings and agreements of the Confidentiality
Agreement, insofar as the
4
Confidentiality Agreement relates to information supplied by FBS or its
representatives to FI that becomes available to Wells, to the same extent
as FI is so obligated pursuant thereto.
(b) Each of FBS and FI shall, as promptly as practicable
after the execution of this Agreement, (i) return to the other party or
destroy all Evaluation Material (as such term is defined in the
Confidentiality Agreement with respect to such party) in accordance with
the terms of the Confidentiality Agreement, and (ii) jointly instruct
Andersen Consulting ("Andersen") (A) not to issue its report with respect
to technology integration as provided for in its letter agreement with FBS
and FI (the "Andersen Agreement") and (B) to return to FBS or FI (as
applicable) as promptly as practicable the information provided by such
party to Andersen in connection with the preparation of such report and to
destroy all materials derived from or containing such information. Each of
FBS and FI shall bear one-half of the fees and expenses of Andersen payable
under the Andersen Agreement.
6. Indemnification. Wells hereby agrees to indemnify and
hold harmless FBS and Acquisition and their respective officers, directors,
employees, agents and advisors (the "FBS Parties") against any and all
liabilities, judgments, settlements, costs, reasonable expenses (including
legal fees) (collectively, "Losses") arising out of or in connection with
any claims (including, but not limited to, claims that have been or could
have been asserted in actions pending prior to the date hereof) by or on
behalf of any FI securityholders (or by any such securityholders on behalf
or purportedly on behalf of FI), arising out of or in connection with the
Merger Agreement, the FI Option Agreement, the FI Fee Agreement, this
Agreement or the transactions contemplated thereby and hereby but, to the
extent such Losses arise out of acts or omissions of FBS, only to the
extent that such acts or omissions shall have been taken prior to the date
hereof or are contemplated by this Agreement. FBS hereby agrees that it
will, and will cause its affiliates to, cooperate with Wells in connection
with any litigation or claims for which indemnification is sought pursuant
to the preceding sentence. FBS and Acquisition further agree that they
will not settle any such litigation without the prior written consent of
Wells, which consent
5
will not be unreasonably withheld. Wells also agrees to indemnify the FBS
Parties against all reasonable legal fees or other expenses incurred in
enforcing this Agreement. In addition, FI agrees promptly to reimburse FBS
for legal expenses (not to exceed $225,000) incurred in connection with any
such securityholder litigation prior to the date hereof.
7. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, OR
THE SUBJECT MATTER HEREOF IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING OR WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
8. Validity; Due Authorization. Each party hereto
represents and warrants to the others that it is duly authorized to execute
and deliver this Agreement and the relevant Release, that no further
corporate authorizations (including shareholder approvals or approval under
Section 203 of the Delaware General Corporation Law) are required for such
party's execution, delivery and performance of this Agreement and the
relevant Release, and that this Agreement and such Release is a valid and
binding obligation of such party.
9. Specific Performance. The parties hereto acknowledge
that damages would be an inadequate remedy for any breach of the provisions
of this Agreement and agree that the obligations of the parties hereunder
shall be specifically enforceable and no party shall take any action to
impede the others from seeking to enforce such rights of specific
performance.
10. Notices. All notices, requests, claims, demands and
other communications hereunder shall be effective upon receipt, shall be in
writing and shall be delivered in person, by cable, telegram or telex, or
by facsimile transmission as follows: (i) if to Wells, addressed to Wells
Fargo & Co., 420 Montgomery Street, San Francisco, CA 94163 (Att: General
Counsel) with a copy to Sullivan & Cromwell, 125 Broad Street, New York,
New York 10004 (Att: H. Rodgin Cohen, Esq.), (ii) if to
6
FBS or Acquisition, addressed to First Bank System, Inc., 601 Second Avenue
South, Minneapolis, Minnesota 55402 (Att: General Counsel) with a copy to
Cleary, Gottlieb, Steen & Hamilton, One Liberty Plaza, New York, New York
10006 (Att: Victor I. Lewkow, Esq.), (iii) if to FI, addressed to First
Interstate Bancorp, 633 West Fifth Street, Los Angeles, CA 90071 (Att:
General Counsel) with a copy to Skadden, Arps, Meagher & Flom, 919 Third
Avenue, New York, New York 10022 (Att: Fred B. White, III, Esq.) or (iv) or
to such other address as any party may have furnished to the others in
writing in accordance herewith.
11. Governing Law and Venue. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the principles of conflict of laws thereof.
Any suit brought hereon and any and all legal proceedings to enforce this
Agreement, whether in contract, tort, equity or otherwise, shall be brought
in the Court of Chancery of the State of Delaware to the extent such court
has subject matter jurisdiction of such suit, and otherwise in the Superior
Court of the State of Delaware, the parties hereto hereby waiving any claim
or defense that such forum is not convenient or proper. Each party hereby
agrees that such court shall have in personam jurisdiction over it,
consents to service of process in any manner prescribed in Section 10
hereof or in any other manner authorized by Delaware law, and agrees that a
final judgment in any such action or proceeding, no longer subject to any
appeal, shall be conclusive.
7
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
13. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction hereof.
14. Amendment; Waiver. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall be
effective unless in writing and signed by the parties hereto affected
thereby, in the case of an amendment, or by the party which is the bene-
ficiary of any such provision, in the case of a waiver or a consent to
departure therefrom.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto all as of the day and year first above written.
FIRST BANK SYSTEM, INC. FIRST INTERSTATE BANCORP
By: /s/ Lee R. Mitau By: /s/Theodore F. Craver, Jr.
Name: Lee R. Mitau Name: Theodore F. Craver, Jr.
Title: Executive Vice Title: Executive Vice President
President, General & Treasurer
Counsel & Secretary
ELEVEN ACQUISITION CORP. WELLS FARGO & COMPANY
By: /s/ Lee R. Mitau By: /s/ Guy Rounsaville, Jr.
Name: Lee R. Mitau Name: Guy Rounsaville, Jr.
Title: Executive Vice Pres- Title: General Counsel
ident & Secretary
8
Schedule 4
1. Wells Fargo & Company v. First Interstate Bancorp, First Bank System,
Inc., Eleven Acquisition Corp., John E. Bryson, Edward M. Carson, Jewel
Plummer Cobb, Ralph P. Davison, Myran Du Bain, Don C. Frisbee, George M.
Keller, Thomas L. Lee, William F. Miller, William S. Randall, Stephen B.
Sample, Forrest N. Shumway, William E. B. Siart, Richard J. Stegemier,
and Daniel M. Tellep, C.A. No. 14696, filed November 13, 1995, in the
Court of Chancery of the State of Delaware in and for New Castle County.
2. First Bank System, Inc. and Eleven Acquisition Corp. v. Wells Fargo &
Company, C.A. No. 95-787, filed December 14, 1995 in the United States
District Court for the District of Delaware, counterclaims filed by
Wells Fargo & Company on December 22, 1995.
3. First Interstate Bancorp v. Wells Fargo & Company, Paul Hazen, H. Jesse
Arnelle, William R. Breuner, William S. Davila, Rayburn S. Dezember,
Robert K. Jaedicke, Ellen M. Newman, Philip J. Quigley, Carl E.
Reichardt, Donald B. Rice, Susan G. Swenson, Chang-Lin Tien, John A.
Young and William F. Zuendt, C.A. No. 95-800, filed December 18, 1995 in
the United States District Court for the District of Delaware, counter-
claims filed by Wells Fargo & Company on December 22, 1995.
4. First Bank System, Inc. and Eleven Acquisition Corp. v. Wells Fargo &
Company, Case No. BC 142972, filed January 22, 1996 in the Superior
Court for the State of California for the County of Los Angeles.
9
EXHIBIT A
LIMITED RELEASE
First Bank System, Inc. and Eleven Acquisition Corp.
("RELEASORS"), for valuable consideration, including the release of even
date executed by Wells Fargo & Company in favor of RELEASORS, the receipt
of which is hereby acknowledged, release and discharge Wells Fargo &
Company, its subsidiaries and affiliates and their present and former
directors, officers, stockholders, employees, agents, attorneys, successors
and assigns (collectively, with Wells Fargo & Company, "RELEASEES") from
all actions, accounts, agreements, bonds, bills, causes of action, claims,
covenants, contracts, controversies, damages, demands, debts, dues,
extents, expenses, executions, judgments, liabilities, obligations,
promises, predicate acts, reckonings, specialties, suits, sums of money,
trespasses and variances whatsoever, in law, equity or otherwise, known or
unknown ("CLAIMS"), which against the RELEASEES or any of them, the
RELEASORS, their successors, affiliates and assigns, or anyone claiming
through or under any of them, ever had or now have, or may hereafter have
or acquire, based upon, related to, arising from, or connected in any way
with any of the Agreement and Plan of Merger dated as of
10
November 5, 1995 among First Bank System, Inc., Eleven Acquisition Corp.,
and First Interstate Bancorp, the related Termination Fee Agreements, Stock
Option Agreements, Confidentiality Agreement (as that term is defined in
the Merger Agreement) and other related agreements, the transactions
contemplated thereby, the Exchange Offer, Proxy Solicitation and Consent
Solicitation announced by Wells Fargo & Company on November 13, 1995, the
transactions contemplated thereby, and the acquisition of First Interstate
Bancorp by Wells Fargo & Company, including without limitation all CLAIMS
that were or could have been asserted in the actions captioned Wells Fargo
& Company v. First Interstate Bancorp, et al., No. 14696 (Delaware Court of
Chancery), First Bank System, Inc. et ano. v. Wells Fargo & Company, No.
95-787 (United States District Court for the District of Delaware), First
Interstate Bancorp v. Wells Fargo & Company et al., No. 95-800 (United
States District Court for the District of Delaware), First Bank System,
Inc., et ano. v. Wells Fargo & Company (California Superior Court, County
of Los Angeles), No. BC142972, James T. Williamson, et al. v. First
Interstate Bancorp, et al., No. 95-810 (United States District Court for
the District of Delaware), In re First Interstate Bancorp Shareholder
Litigation, No.
11
14623 (Delaware Court of Chancery), Howard Kaplin, derivatively on behalf
of First Interstate Bancorp, Inc. v. John E. Bryson, et al., No. 95-7954
(United States District Court for the Central District of California),
Timothy W. Bradley, on behalf of himself and others similarly situated v.
William E.B. Siart, et al., No. 95-8047 (United States District Court for
the Central District of California), Timothy W. Bradley, on behalf of
himself and others similarly situated v. William E.B. Siart, et al., No.
BC139665, (California Superior Court, County of Los Angeles), other than
any CLAIMS arising with respect to any breach that occurs on or after the
date hereof of the Confidentiality Agreement, the Agreement of even date
executed by First Bank System, Inc., Eleven Acquisition Corp., First
Interstate Bancorp, and Wells Fargo & Company, or Sections 6.2(b), 8.2 or
9.3 of the Merger Agreement.
To ensure that this RELEASE is enforced in accordance with its
terms, the RELEASORS and the RELEASEES hereby acknowledge that each of them
is familiar with section 1542 of the Civil Code of California and knowingly
and voluntarily waives any rights or protections afforded by that Section,
which provides as follows:
12
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
The RELEASORS and the RELEASEES also knowingly and voluntarily
waive all rights and benefits they may have under comparable or similar
statutes and principles of common law of any and all states of the United
States or of the United States.
This RELEASE is governed by and shall be construed and
interpreted in accordance with the laws of the State of New York.
This RELEASE may not be modified or amended except by an
instrument in writing signed by the RELEASORS and the RELEASEES.
IN WITNESS WHEREOF, the RELEASORS have executed this RELEASE on
the 23rd day of January, 1996.
FIRST BANK SYSTEM, INC. ELEVEN ACQUISITION CORP.
By: /s/ Lee R. Mitau By: /s/ Lee R. Mitau
Name: Lee R. Mitau Name: Lee R. Mitau
Title: Executive Vice Pres- Title: Executive Vice Pres-
ident, General Counsel ident & Secretary
& Secretary
13
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
On January 23, 1996 before me personally came
, to me known, who, being by me duly sworn, did depose and state that
he is the of First Bank System, Inc. and the
of Eleven Acquisition Corp., the entities described in and that
executed the foregoing RELEASE and that he is duly authorized by the Boards
of Directors of First Bank System, Inc. and Eleven Acquisition Corp. to
execute said RELEASE on behalf of First Bank System, Inc. and Eleven
Acquisition Corp.
Notary Public
14
EXHIBIT B
LIMITED RELEASE
First Bank System, Inc. and Eleven Acquisition Corp.
("RELEASORS"), for valuable consideration, including the release of even
date executed by First Interstate Bancorp in favor of RELEASORS, the
receipt of which is hereby acknowledged, release and discharge First Inter-
state Bancorp, its subsidiaries and affiliates and their present and former
directors, officers, stockholders, employees, agents, attorneys, successors
and assigns (collectively, with First Interstate Bancorp, "RELEASEES") from
all actions, accounts, agreements, bonds, bills, causes of action, claims,
covenants, contracts, controversies, damages, demands, debts, dues,
extents, expenses, executions, judgments, liabilities, obligations,
promises, predicate acts, reckonings, specialties, suits, sums of money,
trespasses and variances whatsoever, in law, equity or otherwise, known or
unknown ("CLAIMS"), which against the RELEASEES or any of them, the
RELEASORS, their successors, affiliates and assigns, or anyone claiming
through or under any of them, ever had or now have, or may hereafter have
or acquire, based upon, related to, arising from, or connected in any way
15
with any of the Agreement and Plan of Merger dated as of November 5, 1995
among First Bank System, Inc., Eleven Acquisition Corp., and First
Interstate Bancorp, the related Termination Fee Agreements, Stock Option
Agreements, Confidentiality Agreement (as that term is defined in the
Merger Agreement) and other related agreements, the transactions
contemplated thereby, the Exchange Offer, Proxy Solicitation and Consent
Solicitation announced by Wells Fargo & Company on November 13, 1995, the
transactions contemplated thereby, and the acquisition of First Interstate
Bancorp by Wells Fargo & Company, including without limitation all CLAIMS
that were or could have been asserted in the actions captioned Wells Fargo
& Company v. First Interstate Bancorp, et al., No. 14696 (Delaware Court of
Chancery), First Bank System, Inc. et ano. v. Wells Fargo & Company, No.
95-787 (United States District Court for the District of Delaware), First
Interstate Bancorp v. Wells Fargo & Company et al., No. 95-800 (United
States District Court for the District of Delaware), First Bank System,
Inc., et ano. v. Wells Fargo & Company (California Superior Court, County
of Los Angeles) No. BC142972, James T. Williamson, et al. v. First
Interstate Bancorp, et al., No. 95-810 (United States District Court for
the District of Delaware), In
16
re First Interstate Bancorp Shareholder Litigation, No. 14623 (Delaware
Court of Chancery), Howard Kaplin, derivatively on behalf of First
Interstate Bancorp, Inc. v. John E. Bryson, et al., No. 95-7954 (United
States District Court for the Central District of California), Timothy W.
Bradley, on behalf of himself and others similarly situated v. William E.B.
Siart, et al., No. 95-8047 (United States District Court for the Central
District of California), Timothy W. Bradley, on behalf of himself and
others similarly situated v. William E.B. Siart, et al., No. BC139665,
(California Superior Court, County of Los Angeles), other than any CLAIMS
arising with respect to any breach that occurs on or after the date hereof
of the Confidentiality Agreement, the Agreement of even date executed by
First Bank System, Inc., Eleven Acquisition Corp., First Interstate
Bancorp, and Wells Fargo & Company, or Sections 6.2(b), 8.2 or 9.3 of the
Merger Agreement.
To ensure that this RELEASE is enforced in accordance with its
terms, the RELEASORS and the RELEASEES hereby acknowledge that each of them
is familiar with section 1542 of the Civil Code of California and knowingly
and voluntarily waives any rights or
17
protections afforded by that Section, which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materi-
ally affected his settlement with the debtor.
The RELEASORS and the RELEASEES also knowingly and voluntarily
waive all rights and benefits they may have under comparable or similar
statutes and principles of common law of any and all states of the United
States or of the United States.
This RELEASE is governed by and shall be construed and
interpreted in accordance with the laws of the State of New York.
This RELEASE may not be modified or amended except by an
instrument in writing signed by the RELEASORS and the RELEASEES.
IN WITNESS WHEREOF, the RELEASORS have executed this RELEASE on
the 23rd day of January, 1996.
FIRST BANK SYSTEM, INC. ELEVEN ACQUISITION CORP.
By: /s/ Lee R. Mitau By: /s/ Lee R. Mitau
Name: Lee R. Mitau Name: Lee R. Mitau
Title: Executive Vice Pres- Title: Executive Vice Pres-
ident, General Counsel ident & Secretary
& Secretary
18
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
On January 23, 1996 before me personally came
, to me known, who, being by me duly sworn, did depose and state that
he is the of First Bank System, Inc. and the
of Eleven Acquisition Corp., the entities described in and that
executed the foregoing RELEASE and that he is duly authorized by the Boards
of Directors of First Bank System, Inc. and Eleven Acquisition Corp. to
execute said RELEASE on behalf of First Bank System, Inc. and Eleven
Acquisition Corp.
Notary Public
19
EXHIBIT C
LIMITED RELEASE
Wells Fargo & Company ("RELEASOR"), for valuable consideration,
including the release of even date executed by First Bank System, Inc. and
Eleven Acquisition Corp. in favor of RELEASOR, the receipt of which is
hereby acknowledged, releases and discharges First Bank System, Inc., its
subsidiaries and affiliates (including without limitation Eleven
Acquisition Corp.) and their present and former directors, officers, stock-
holders, employees, agents, attorneys, successors and assigns
(collectively, with First Bank System, Inc., "RELEASEES") from all actions,
accounts, agreements, bonds, bills, causes of action, claims, covenants,
contracts, controversies, damages, demands, debts, dues, extents, expenses,
executions, judgments, liabilities, obligations, promises, predicate acts,
reckonings, specialties, suits, sums of money, trespasses and variances
whatsoever, in law, equity or otherwise, known or unknown ("CLAIMS"), which
against the RELEASEES or any of them, the RELEASOR, its successors,
affiliates and assigns, or anyone claiming through or under any of them,
ever had or now has, or may hereafter have or acquire, based upon, related
to, arising from, or connected in any way with any of the
20
Agreement and Plan of Merger dated as of November 5, 1995 among First Bank
System, Inc., Eleven Acquisition Corp., and First Interstate Bancorp,
("Merger Agreement"), the related Termination Fee Agreements, Stock Option
Agreements, Confidentiality Agreement (as that term is defined in the
Merger Agreement) and other related agreements, the transactions
contemplated thereby, the Exchange Offer, Proxy Solicitation and Consent
Solicitation announced by Wells Fargo & Company on November 13, 1995, the
transactions contemplated thereby, and the acquisition of First Interstate
Bancorp by Wells Fargo & Company, including without limitation all CLAIMS
that were or could have been asserted in the actions captioned Wells Fargo
& Company v. First Interstate Bancorp, et al., No. 14696 (Delaware Court of
Chancery), First Bank System, Inc. et ano. v. Wells Fargo & Company, No.
95-787 (United States District Court for the District of Delaware), First
Interstate Bancorp v. Wells Fargo & Company et al., No. 95-800 (United
States District Court for the District of Delaware), First Bank System,
Inc., et ano. v. Wells Fargo & Company (California Superior Court, County
of Los Angeles) No. BC142972, James T. Williamson, et al. v. First
Interstate Bancorp, et al., No. 95-810 (United States District Court for
the District of Delaware), In
21
re First Interstate Bancorp Shareholder Litigation, No. 14623 (Delaware
Court of Chancery), Howard Kaplin, derivatively on behalf of First Inter-
state Bancorp, Inc. v. John E. Bryson, et al., No. 95-7954 (United States
District Court for the Central District of California), Timothy W. Bradley,
on behalf of himself and others similarly situated v. William E.B. Siart,
et al., No. 95-8047 (United States District Court for the Central District
of California), Timothy W. Bradley, on behalf of himself and others
similarly situated v. William E.B. Siart, et al., No. BC139665, (California
Superior Court, County of Los Angeles), other than any CLAIMS arising with
respect to any breach that occurs on or after the date hereof of the
Confidentiality Agreement, the Agreement of even date executed by First
Bank System, Inc., Eleven Acquisition Corp., First Interstate Bancorp, and
Wells Fargo & Company, or of Sections 6.2(b), 8.2 or 9.3 of the Merger
Agreement.
To ensure that this RELEASE is enforced in accordance with its
terms, the RELEASOR and the RELEASEES hereby acknowledge that each of them
is familiar with section 1542 of the Civil Code of California and knowingly
and voluntarily waives any rights or protections afforded by that Section,
which provides as follows:
22
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materi-
ally affected his settlement with the debtor.
The RELEASOR and the RELEASEES also knowingly and voluntarily
waive all rights and benefits they may have under comparable or similar
statutes and principles of common law of any and all states of the United
States or of the United States.
This RELEASE is governed by and shall be construed and
interpreted in accordance with the laws of the State of New York.
This RELEASE may not be modified or amended except by an
instrument in writing signed by the RELEASOR and the RELEASEES.
IN WITNESS WHEREOF, the RELEASOR has executed this RELEASE on
the 23rd day of January, 1996.
WELLS FARGO & COMPANY
By: /s/ Guy Rounsaville, Jr.
Name: Guy Rounsaville, Jr.
Title: General Counsel
23
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On January 23, 1996 before me personally came Guy Rounsaville,
to me known, who, being by me duly sworn, did depose and state that he is
the General Counsel of Wells Fargo & Company, the entity described in and
that executed the foregoing RELEASE and that he is duly authorized by the
Board of Directors of Wells Fargo & Company to execute said RELEASE on
behalf of Wells Fargo & Company.
/s/ C. Peregoy
Notary Public
24
EXHIBIT D
LIMITED RELEASE
First Interstate Bancorp ("RELEASOR"), for valuable
consideration, including the release of even date executed by First Bank
System, Inc. and Eleven Acquisition Corp. in favor of RELEASOR, the receipt
of which is hereby acknowledged, releases and discharges First Bank System,
Inc., its subsidiaries and affiliates (including without limitation Eleven
Acquisition Corp.) and their present and former directors, officers, stock-
holders, employees, agents, attorneys, successors and assigns
(collectively, with First Bank System, Inc., "RELEASEES") from all actions,
accounts, agreements, bonds, bills, causes of action, claims, covenants,
contracts, controversies, damages, demands, debts, dues, extents, expenses,
executions, judgments, liabilities, obligations, promises, predicate acts,
reckonings, specialties, suits, sums of money, trespasses and variances
whatsoever, in law, equity or otherwise, known or unknown ("CLAIMS"), which
against the RELEASEES or any of them, the RELEASOR, its successors,
affiliates and assigns, or anyone claiming through or under any of them,
ever had or now has, or may hereafter have or acquire, based upon,
25
related to, arising from, or connected in any way with any of the Agreement
and Plan of Merger dated as of November 5, 1995 among First Bank System,
Inc., Eleven Acquisition Corp., and First Interstate Bancorp, the related
Termination Fee Agreements, Stock Option Agreements, Confidentiality
Agreement (as that term is defined in the Merger Agreement) and other
related agreements, the transactions contemplated thereby, the Exchange
Offer, Proxy Solicitation and Consent Solicitation announced by Wells Fargo
& Company on November 13, 1995, the transactions contemplated thereby, and
the acquisition of First Interstate Bancorp by Wells Fargo & Company,
including without limitation all CLAIMS that were or could have been
asserted in the actions captioned Wells Fargo & Company v. First Interstate
Bancorp, et al., No. 14696 (Delaware Court of Chancery), First Bank System,
Inc. et ano. v. Wells Fargo & Company, No. 95-787 (United States District
Court for the District of Delaware), First Interstate Bancorp v. Wells
Fargo & Company et al., No. 95-800 (United States District Court for the
District of Delaware), First Bank System, Inc., et ano. v. Wells Fargo &
Company (California Superior Court, County of Los Angeles) No. BC142972,
James T. Williamson, et al. v. First Interstate Bancorp, et al., No. 95-810
(United
26
States District Court for the District of Delaware), In re First Interstate
Bancorp Shareholder Litigation, No. 14623 (Delaware Court of Chancery),
Howard Kaplin, derivatively on behalf of First Interstate Bancorp, Inc. v.
John E. Bryson, et al., No. 95-7954 (United States District Court for the
Central District of California), Timothy W. Bradley, on behalf of himself
and others similarly situated v. William E.B. Siart, et al., No. 95-8047
(United States District Court for the Central District of California),
Timothy W. Bradley, on behalf of himself and others similarly situated v.
William E.B. Siart, et al., No. BC139665, (California Superior Court,
County of Los Angeles), other than any CLAIMS arising with respect to any
breach that occurs on or after the date hereof of the Confidentiality
Agreement, the Agreement of even date executed by First Bank System, Inc.,
Eleven Acquisition Corp., First Interstate Bancorp, and Wells Fargo &
Company, or of Sections 6.2(b), 8.2 or 9.3 of the Merger Agreement.
To ensure that this RELEASE is enforced in accordance with its
terms, the RELEASOR and the RELEASEES hereby acknowledge that each of them
is familiar with section 1542 of the Civil Code of California and knowing-
27
ly and voluntarily waives any rights or protections afforded by that
Section, which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materi-
ally affected his settlement with the debtor.
The RELEASOR and the RELEASEES also knowingly and voluntarily
waive all rights and benefits they may have under comparable or similar
statutes and principles of common law of any and all states of the United
States or of the United States.
This RELEASE is governed by and shall be construed and
interpreted in accordance with the laws of the State of New York.
This RELEASE may not be modified or amended except by an
instrument in writing signed by the RELEASOR and the RELEASEES.
IN WITNESS WHEREOF, the RELEASOR has executed this RELEASE on
the 23rd day of January, 1996.
WELLS FARGO & COMPANY
By: /s/ Theodore F. Craver, Jr.
Name: Theodore F. Craver, Jr.
Title: Executive V.P. & Treasurer
28
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On January 23, 1996 before me personally came Theodore F.
Craver, Jr., to me known, who, being by me duly sworn, did depose and state
that he is the Executive Vice-President and Treasurer of First Interstate
Bancorp, the entity described in and that executed the foregoing RELEASE
and that he is duly authorized by the Board of Directors of First
Interstate Bancorp to execute said RELEASE on behalf of First Interstate
Bancorp.
/s/ Susanne Estrada
Notary Public