Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WELLS FARGO & COMPANY
(Exact name of registrant as specified in its charter)
Delaware
(State of Incorporation)
13-2553920
(I.R.S. Employer Identification No.)
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000
(Address and telephone number of principal executive offices)
ALAN J. PABST
Senior Vice President and Treasurer
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000
(Name, address and telephone number of agent for service)
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Copies to:
GEORGE D. TUTTLE, Esq. ERIC S. HAUETER, Esq. E. WAIDE WARNER, Jr. Esq.
DOUGLAS D. SMITH, Esq. Brown & Wood Davis Polk & Wardwell
Brobeck Phleger & Harrison 555 California Street 450 Lexington Avenue
One Market Plaza San Francisco, California 94104 New York, New York 10017
San Francisco, California 94105
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, please 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 of 1933, please check the
following box and list the Securities Act of 1933 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 of 1933, check the following box and list the Securities Act
of 1933 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
================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED<F1> PER SECURITY OFFERING PRICE FEE<F2>
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Notes.......................................
Preferred Stock <F4>........................
Depositary Shares <F5><F6>.................. $2,062,750,000 100%<F3> $2,062,750,000 $711,293
Common Stock <F6><F7>.......................
Capital Securities <F6><F8>.................
<FN>
<F1> In United States dollars or the equivalent thereof in
foreign currency or currency units. If any of the Notes are
issued at an original issue discount, this amount will be
increased such that the public offering price will equal
$2,062,750,000.
<F2> $437,250,000 maximum aggregate offering price of securities
is being carried forward pursuant to Rule 429 under the
Securities Act of 1933 from Registration Statement No.
33-51227, as discussed below on this facing page. The amount
of the filing fee to register such securities is $150,776.
<F3> Estimated solely for the purpose of calculating the
registration fee. The aggregate public offering price of
Notes and Preferred Stock sold will not exceed
$2,062,750,000.
<F4> Such indeterminate number of shares of Preferred Stock as
may from time to time be issued at indeterminate prices and,
in addition, as may be issuable upon conversion, exchange or
in payment of the Notes registered hereunder.
<F5> Such indeterminate number of Depositary Shares as may be
issued in the event the registrant elects to offer
fractional interests in shares of Preferred Stock registered
hereunder.
<F6> No additional consideration will be received for the
Depositary Shares, Common Stock or Capital Securities and
therefore no registration fee is required pursuant to Rule
457(j).
<F7> Such indeterminate number of shares of Common Stock as may be
issuable upon conversion or in payment of the Notes and Preferred
Stock registered hereunder.
<F8> Such indeterminate amount of Capital Securities as may be issued
upon conversion or in payment of the Notes and Preferred Stock
registered hereunder.
</FN>
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement constitutes a
combined Prospectus relating also to $437,250,000 maximum
aggregate offering price of securities, unsold as of June 22,
1995, registered pursuant to Registration Statement No. 33-51227
previously filed by the Company on Form S-3.
1.
Subject to Completion, dated June 22, 1995
$2,500,000,000
WELLS FARGO & COMPANY
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
WELLS FARGO & COMPANY (the "Company") intends
to offer and sell from time to time its debt securities (the
"Notes") and its Preferred Stock, $5.00 par value ("Preferred
Stock"), with an aggregate public offering price of
$2,500,000,000 (or the equivalent in foreign currencies or
composite currencies) on terms to be determined by market
conditions at the time of sale. The Notes and the Preferred Stock
(together the "Offered Securities") may be offered separately or
together, in separate series, in amounts and at prices and terms
to be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"). At the option of the Company, the
Notes may be issued as senior debt securities ("Senior Notes") or
as subordinated debt securities ("Subordinated Notes"). The
Offered Securities may be denominated in United States dollars
or, at the option of the Company, in any other currency, in a
composite currency or in amounts determined by reference to an
index which is specified in the Prospectus Supplement. The
specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement. The Notes may be convertible
or exchangeable into Preferred Stock, Common Stock or Capital
Securities of the Company. The Preferred Stock may be convertible
or exchangeable into Notes, Common Stock or Capital Securities of
the Company.
The Offered Securities may be offered and sold
directly by the Company or selling security-holders, or through
one or more underwriters or agents. In addition, the Prospectus
Supplement will set forth the terms of sale of the Offered
Securities and the identity of any underwriters, agents or
selling security-holders. Any underwriters, dealers or agents
participating in any offering of the Offered Securities may be
deemed "underwriters" within the meaning of the Securities Act of
1933, as amended. See "Plan of Distribution."
Payment of the principal of the Subordinated
Notes may be accelerated only in the case of certain events of
bankruptcy, insolvency or reorganization of the Company or the
Bank. There is no right of acceleration in the case of a default
in the performance of any covenant with respect to the
Subordinated Notes, including the payment of interest or
principal. See "Description of Notes - Events of Default."
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE OFFERED SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS BUT ARE
UNSECURED DEBT OBLIGATIONS OF, OR EQUITY INTERESTS IN, WELLS
FARGO & COMPANY AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
------------------------------------
This Prospectus may not be used to
consummate sales of Offered
Securities unless accompanied
by a Prospectus Supplement.
------------------------------------
The date of this Prospectus is June 22, 1995
2.
No person has been authorized to give any
information or to make any representations other than those
contained in this Prospectus and the Prospectus Supplement in
connection with the offering made hereby, and if given or made,
such information or representations must not be relied upon as
having been authorized by the Company or by any underwriters or
agents. Neither the delivery of this Prospectus and the
Prospectus Supplement nor any sale made thereunder shall, under
any circumstances, create any implication that information herein
is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934 ("Act") and
in accordance therewith files reports and other information with
the Securities and Exchange Commission ("Commission"). Proxy
statements, reports and other information concerning the Company
can be inspected at the Commission's office at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549, and the
Commission's Regional Offices in New York (7 World Trade Center,
Suite 1300, New York, New York 10048) and Chicago (Northwest
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511), and copies of such material can be obtained
from such facilities and the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. In addition, such
material can be inspected at the offices of the New York and
Pacific Stock Exchanges on which certain of the Company's
securities are listed. This Prospectus does not contain all
information set forth in the Registration Statement and Exhibits
thereto which the Company has filed with the Commission under the
Securities Act of 1933 and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in
this Prospectus the following reports filed with the Commission
pursuant to Section 13 of the Act: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1994;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31 1995; and (iii) the Company's Current Reports on
Form 8-K filed on January 17, April 18, and June 22, 1995. All
documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Offered
Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the
date of filing of such documents.
Any person receiving a copy of this Prospectus
may obtain without charge, upon oral or written request, a copy
of any of the documents incorporated by reference herein, except
for the exhibits to such documents unless such exhibits are
specifically incorporated by reference into the information that
the Prospectus incorporates. Requests should be directed to Wells
Fargo & Company, Investor/Public Relations, MAC #0163-029,
343 Sansome Street, San Francisco, California 94163, telephone
(415) 396-0560.
Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
WELLS FARGO & COMPANY
Wells Fargo & Company ("Company") is a bank
holding company registered under the Bank Holding Company Act of
1956, as amended. On the basis of assets as of December 31, 1994,
the Company was the fifteenth largest bank holding company in the
United States. As of December 31, 1994, the Company had loans of
$36.3 billion, total assets of $53.4 billion, total deposits of
$42.3 billion and stockholders' equity of $3.9 billion.
3.
Its principal subsidiary is Wells Fargo Bank, National
Association ("Bank"). The Bank is primarily engaged in retail,
commercial and corporate banking, real estate lending and trust
and investment services.
The Company is a legal entity separate and
distinct from the Bank and its other affiliates. There are
various legal limitations on the extent to which the Bank may
extend credit, pay dividends or otherwise supply funds to the
Company or various of its affiliates. The executive offices of
the Company are located at 420 Montgomery Street, San Francisco,
California 94163. The Company's telephone number is (415)
477-1000.
Since the Company is a holding company, the
rights of the Company to participate in any distribution of
assets of any subsidiary upon its liquidation or reorganization
or otherwise (and thus the ability of holders of the Offered
Securities to benefit indirectly from such distribution) are
subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company may itself be a creditor
of that subsidiary. Claims on the Company's subsidiaries by
creditors other than the Company include long-term debt and
substantial obligations in respect of federal funds purchased,
securities sold under repurchase agreements and certain other
short-term borrowings, as well as deposit liabilities.
USE OF PROCEEDS
The net proceeds from the sale of the Offered
Securities will be used for general corporate purposes. Specific
allocations of the proceeds to such purposes have not been
determined. The net proceeds may be used to reduce outstanding
commercial paper and other debt of the Company. Based upon the
anticipated future funding requirements of the Company and its
subsidiaries in addition to those stated above, the Company
expects that it will, from time to time, engage in additional
financings of a character and in amounts to be determined and
that its commercial paper borrowings and other short-term debt
may be increased above the level prevailing after the initial use
of proceeds.
4.
SUMMARY FINANCIAL DATA
This summary is qualified in its entirety by the detailed
information and financial statements included in the documents incorporated
by reference in this Prospectus. See "Incorporation of Certain Documents
by Reference."
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Year Ended December 31,
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1994 1993 1992 1991 1990
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(in millions)
Consolidated Summary of Income:
Interest income............................. $ 3,765 $ 3,761 $ 4,145 $ 4,972 $ 5,051
Interest expense............................ 1,155 1,104 1,454 2,452 2,737
------ ------ ------ ------ ------
Net interest income......................... 2,610 2,657 2,691 2,520 2,314
Provision for loan losses................... 200 550 1,215 1,335 310
------ ------ ------ ------ ------
Net interest income after provision for
loan losses.............................. 2,410 2,107 1,476 1,185 2,004
Noninterest income.......................... 1,200 1,093 1,059 889 909
Noninterest expense......................... 2,156 2,162 2,035 2,020 1,717
------ ------ ------ ------ ------
Income before
income tax expense....................... 1,454 1,038 500 54 1,196
Income tax expense.......................... 613 426 217 33 484
------ ------ ------ ------ ------
Net income.................................. $ 841 $ 612 $ 283 $ 21 $ 712
====== ====== ====== ====== ======
Net income applicable to
common stock............................. $ 798 $ 562 $ 235 $ 2 $ 685
====== ====== ====== ====== ======
Net income per
common share............................. $ 14.78 $ 10.10 $ 4.44 $ .04 $ 13.39
====== ====== ====== ====== ======
Average common shares
outstanding.............................. 53.9 55.6 52.9 51.8 51.2
====== ====== ====== ====== ======
Consolidated Average Balance Sheet Data:
Loans....................................... $34,039 $34,304 $40,406 $46,736 $44,061
Total assets................................ 51,849 51,110 52,497 55,022 51,109
Core deposits............................... 39,592 40,389 41,779 41,523 36,219
Total deposits.............................. 40,821 40,727 42,266 42,642 37,075
Stockholders' equity........................ 4,079 3,996 3,573 3,352 3,137
Net Interest Margin<F1>......................... 5.55% 5.74% 5.70% 5.18% 5.12%
Consolidated Profitability Ratios:
Net income to average total assets (ROA).... 1.62% 1.20% .54% .04% 1.39%
Net income applicable to common stock to
average common stockholders'
equity (ROE)............................. 22.41 16.74 7.93 .07 25.07
- --------
<F1> Net interest margin is defined as net interest income on a
taxable-equivalent basis divided by average total earning assets.
5.
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Year Ended December 31,
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1994 1993 1992 1991 1990
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(in millions)
Consolidated Period-End Capital Ratios: <F2>
Common stockholders' equity to assets...... 6.41% 7.00% 6.03% 5.24% 5.26%
Stockholders' equity to assets.............. 7.33 8.22 7.25 6.11 5.98
Consolidated Period-End Loan Data:
Allowance for loan losses................... $2,082 $2,122 $2,067 $1,646 $ 885
Allowance for loan losses as a percentage of
total loans.............................. 5.73% 6.41% 5.60% 3.73% 1.81%
Nonaccrual and restructured loans........... $ 582 $1,200 $2,142 $1,981 $1,013
Nonaccrual and restructured loans
as a percentage of total loans........... 1.6% 3.6% 5.8% 4.5% 2.1%
Consolidated Loan Charge-Off Data:
Net loan charge-offs........................ $ 240 $ 495 $ 798 $ 572 $ 168
Net loan charge-offs as a percentage
of average total loans................... 0.70% 1.44% 1.97% 1.22% 0.38%
Consolidated Ratios of Earnings to Fixed
Charges: <F3><F5>
Including interest on deposits.............. 2.20 1.90 1.33 1.02 1.43
Excluding interest on deposits.............. 5.04 4.53 2.56 1.10 2.42
Consolidated Ratios of Earnings to
Fixed Charges and Preferred
Stock Dividends: <F3><F4><F5>
Including interest on deposits.............. 2.07 1.77 1.26 1.00 1.41
Excluding interest on deposits.............. 4.18 3.51 2.02 1.01 2.30
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<FN>
<F2> Based on the Federal Reserve Board's guidelines, the Company's
total risk-based capital ratio was 13.16%, 15.12%, 13.15%, 10.19%
and 9.27% at December 31, 1994, 1993, 1992, 1991 and 1990,
respectively. The Company's Tier 1 risk-based capital ratio was
9.09%, 10.48%, 8.22%, 5.78% and 5.03% at December 31, 1994, 1993,
1992, 1991 and 1990, respectively.
<F3> For purposes of computing these ratios, earnings represent
income before income tax expense plus fixed charges. Fixed
charges represent interest expense plus the estimated
interest component of net rental expense.
<F4> The preferred stock dividends are increased to amounts
representing the pretax earnings required to cover such
dividends.
<F5> These computations are included herein in
compliance with Securities and Exchange Commission
regulations. However, management believes that fixed
charge ratios are not meaningful measures for the business
of the Company because of two factors. First, even if
there were no change in net income, the ratios would
decline with an increase in the proportion of income which
is tax-exempt or, conversely, they would increase with a
decrease in the proportion of income which is tax-exempt.
Second, even if there were no change in net income, the
ratios would decline if interest income and interest
expense increase by the same amount due to an increase in
the level of interest rates or, conversely, they would
increase if interest income and interest expense decrease
by the same amount due to a decrease in the level of
interest rates.
</FN>
6.
DESCRIPTION OF NOTES
The Senior Notes will be issued under an Indenture, dated
as of September 1, 1984, as amended by the First Supplemental
Indenture dated as of April 15, 1986, the Second Supplemental
Indenture dated as of June 30, 1987, and the Third Supplemental
Indenture dated as of January 23, 1991 (together, the "Senior
Indenture"), between the Company and Chemical Bank, as successor
Trustee (the "Senior Trustee"). The Subordinated Notes will be
issued under an Indenture dated as of December 10, 1992 (the
"Subordinated Indenture"), between the Company and Marine Midland
Bank, as Trustee (the "Subordinated Trustee"). In this
Prospectus, the Senior Indenture and the Subordinated Indenture
are referred to as the "Indentures." The Senior Trustee and the
Subordinated Trustee are referred to as the "Trustees." As used
in this Prospectus, the term "Senior Notes" means the Senior
Notes offered hereby and, unless the context otherwise requires,
any other debt securities issued under the Senior Indenture, the
term "Subordinated Notes" means the Subordinated Notes offered
hereby and, unless the context otherwise requires, any other debt
securities issued under the Subordinated Indenture, and the term
"Notes" means the Notes offered hereby and, unless the context
otherwise requires, any other debt securities which may be issued
under the Indentures; and references to "principal" of the Notes
shall be deemed to include, unless the context otherwise
requires, a reference to premium, if any, on the Notes. Copies of
the Indentures are filed or incorporated by reference as exhibits
to the Registration Statement. The following summaries of certain
provisions of the Indentures and the summary of certain
provisions of a particular series of Notes set forth in the
Prospectus Supplement relating thereto do not purport to be
complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indentures and the
respective forms of the Notes, including the definitions therein
of certain terms. Whenever particular Sections, Articles or
defined terms of the Indentures are referred to, it is intended
that such Sections, Articles or defined terms shall be
incorporated herein by reference.
GENERAL
The Indentures do not limit the amount of debt securities
which can be issued thereunder and provide that debt securities
of any series may be issued thereunder up to the aggregate
principal amount which may be authorized from time to time by the
Company. The Indentures do not limit the amount of other
indebtedness or securities which may be issued by the Company.
The Notes may be issued at various times with different maturity
dates and different principal repayment provisions, may bear
interest at different rates, may be payable in currencies other
than United States dollars, in composite currencies or in amounts
determined by reference to an index and may otherwise vary, all
as provided in the Indentures.
The Prospectus Supplement will set forth the following
specific terms regarding the series of Notes offered thereby:
(i) the designation and aggregate principal amount of Notes of such
series; (ii) the ranking of the Notes as Senior Notes or
Subordinated Notes; (iii) the percentage of their principal
amount at which such Notes will be issued; (iv) the date or dates
on which such Notes will mature, if any; (v) the rate per annum
or the method of determining the rate or rates per annum, if any,
at which such Notes will bear interest; (vi) the dates from and
on which such interest, if any, will accrue and be payable and
the designated record dates for such interest payments; (vii) the
currency (which may be a composite currency) in which payment of
principal and interest, if any, shall be payable if other than
United States dollars; (viii) the index, if any, upon which the
amount of principal or interest is determined; (ix) any
redemption terms; (x) any conversion or exchange provisions;
(xi) provisions for issuance of global securities; and (xii) other
specific terms. If so indicated in the applicable prospectus
supplement, the terms of the Notes offered thereby may differ
from those set forth herein.
Some of the Notes may be issued as discounted Notes
(bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a discount below
their stated principal amount. Some of the Notes may be perpetual
and have no stated maturity. Federal income tax consequences and
other special considerations applicable to such perpetual or discounted Notes
will be described in the Prospectus Supplement relating thereto.
7.
Interest on the Notes of any series will be payable to the
persons in whose names the Notes are registered at the close of
business on the record date designated for an interest payment
date (Section 2.03). The Notes may be presented for the payment
of principal and interest, if any, transfer and exchange at the
offices or agencies of the Company maintained for such purposes
in San Francisco and New York City. Payment of any installment of
interest may be made at the option of the Company by check,
mailed to the address of the person entitled thereto as it
appears on the Register of the Notes of such series (Sections
2.05, 4.01 and 4.02). The Notes will be issued in fully
registered form, without coupons, in denominations of $1,000 and
any whole multiple of $1,000, unless different authorized
denominations are stated in the Prospectus Supplement. No service
charge will be made for any exchange or registration of transfer
of a Note, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge (Section
2.05). The Indentures provide that if a series of Notes is
denominated in a currency other than United States dollars or in
a composite currency, in the absence of a contrary provision in
the Notes any action or distribution under the Indentures will be
based on the relative amount of United States dollars that could
be obtained on such reasonable basis of exchange on such date as
is specified by the Company to the Trustee (Sections 14.10 of the
Senior Indenture and 16.10 of the Subordinated Indenture).
All of the Notes will be unsecured general obligations of
the Company. The Senior Notes will not be subordinated in right
of payment to any other indebtedness of the Company. Unless
otherwise set forth in the applicable Prospectus Supplement,
neither the Indentures nor the Notes contain provisions which
would afford holders of the Notes protection in the event of a
takeover, recapitalization or similar restructuring involving the
Company which could adversely affect the Notes.
SUBORDINATION OF SUBORDINATED NOTES
The obligation of the Company to make any payment on
account of the principal of and interest on the Subordinated
Notes of any series will be subordinate and junior in right of
payment to the Company's obligations to the holders of Senior
Indebtedness of the Company to the extent described in the next
paragraph. Senior Indebtedness of the Company includes the Senior
Notes and means (i) any indebtedness of the Company for borrowed
or purchased money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) obligations
under letters of credit, (iii) any indebtedness or other
obligations of the Company with respect to commodity contracts,
interest rate and currency swap agreements, cap, floor and collar
agreements, currency spot and forward contracts, and other
similar agreements or arrangements designed to protect against
fluctuations in currency exchange or interest rates, and (iv) any
guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or
other similar contingent obligations in respect of obligations of
others of a type described in (i), (ii) or (iii) above, whether
or not such obligation is classified as a liability on a balance
sheet prepared in accordance with generally accepted accounting
principles, in each case listed in (i), (ii), (iii) and (iv)
above, whether outstanding on the date of execution of the
Subordinated Indenture or thereafter incurred, other than
obligations "ranking on a parity" with the Subordinated Notes or
"ranking junior" to the Subordinated Notes (as those terms are
defined in the Subordinated Indenture) (Section 1.01). The
definition of senior indebtedness in previously issued
subordinated debt of the Company (the "Prior Subordinated Debt",
which term excludes any Subordinated Notes issued under the
Subordinated Indenture) includes only indebtedness of or
guaranteed by the Company for borrowed money and any deferred
obligation for the payment of the purchase price of property or
assets, other than obligations ranking on a parity with or junior
to such subordinated indebtedness. As a result of this
difference, the holders of Subordinated Notes are subordinated to
greater amounts of senior indebtedness of the Company than
holders of such Prior Subordinated Debt and, under the
circumstances described in the following paragraph, holders of
Subordinated Notes may receive less, ratably, than holders of
such Prior Subordinated Debt. As of December 31, 1994, there were
$1.4 billion of Senior Indebtedness of the Company and $1.5
billion of obligations ranking on a parity (as defined in the
Subordinated Indenture) with the Subordinated Notes. The
Subordinated Indenture does not limit the amount of Senior
Indebtedness of the Company.
In the case of any insolvency, receivership,
conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or
any liquidation or winding-up of or relating to the Company as
8.
a whole, whether voluntary or involuntary, all obligations of the
Company to holders of Senior Indebtedness of the Company shall be
entitled to be paid in full before any payment shall be made on
account of the principal of or interest on the Subordinated
Notes. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness of the
Company, the holders of the Subordinated Notes, together with the
holders of any obligations of the Company ranking on a parity
with the Subordinated Notes, shall be entitled to be paid from
the remaining assets of the Company the amounts at the time due
and owing on account of unpaid principal of and interest on the
Subordinated Notes before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Company ranking
junior to the Subordinated Notes (Section 14.01). By reason of
such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness of the Company may
receive more, ratably, and holders of the Subordinated Notes
having a claim pursuant to the Subordinated Notes may receive
less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of
Default in respect of the Subordinated Notes (Section 14.10).
GLOBAL SECURITIES
The Notes of a series may be issued in whole or in part in
the form of one or more global securities ("Global Security")
that will be deposited with, or on behalf of, a depositary
identified in the Prospectus Supplement relating to such series.
Global Securities will be issued in registered form and in either
temporary or definitive form. Unless and until it is exchanged in
whole or in part for Notes in definitive form, a Global Security
may not be transferred except as a whole by the depositary for
such Global Security to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee
of such depositary or by such depositary or any such nominee to a
successor of such depositary or a nominee of such successor
(Sections 2.02 and 2.05).
The specific terms of the depositary arrangement with
respect to any Notes of a series will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Global Security, the depositary for
such Global Security will credit, on its book-entry registration
and transfer system, the respective principal amounts of the
Notes represented by such Global Security to the accounts of
institutions that have accounts with such depositary
("Participants"). The accounts to be credited shall be designated
by the underwriters of such Notes, by certain agents of the
Company or by the Company, if such Notes are offered and sold
directly by the Company. Ownership of beneficial interests in a
Global Security will be limited to Participants or persons that
may hold interests through Participants. Ownership of beneficial
interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records
maintained by the depositary with respect to Participants'
interests in such Global Security or by Participants or by
persons that hold through Participants with respect to beneficial
owners' interests. The laws of some states require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Such ownership limits and such
laws may impair the ability to transfer beneficial interests in a
Global Security.
So long as the depositary for a Global Security, or its
nominee, is the holder of such Global Security, such depositary
or such nominee, as the case may be, will be considered the sole
owner or holder of the Notes represented by such Global Security
for all purposes under the Indenture governing such Notes. Except
as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Notes of the series
represented by such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of
Notes of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture
governing such Notes.
Principal and interest payments on Notes registered in the
name of or held by a depositary or its nominee will be made to
the depositary or its nominee, as the case may be, as the
registered owner of the Global Security representing such Notes.
The Company expects that the depositary for Notes of a series,
upon receipt of any
9.
payment of principal or interest in respect of a Global Security,
will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the
records of such depositary. The Company also expects that
payments by Participants or persons who hold interests through
Participants to owners of beneficial interests in such Global
Security held through such Participants or persons will be
governed by standing instructions and customary practices, as is
now the case with securities held for the accounts of customers
in bearer form or registered in "street name," and will be the
responsibility of such Participants or persons. None of the
Company, the Trustee for such Notes, any paying agent or any
registrar for such Notes will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a Global
Security for such Notes or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
If a depositary for Notes of a series is at any time
unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the
Company will issue Notes of such series in definitive form in
exchange for the Global Security or Securities representing the
Notes of such series. In addition, the Company may at any time
and in its sole discretion determine not to have any Notes of a
series represented by one or more Global Securities and, in such
event, will issue Notes of such series in definitive form in
exchange for the Global Security or Securities representing such
Notes.
CONVERSION AND EXCHANGE
The terms, if any, on which Notes of any series are
convertible into or exchangeable for Common Stock, Preferred
Stock or Capital Securities will be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions
for conversion or exchange, either mandatory, at the option of
the holder, or at the option of the Company, in which the number
of shares of Common Stock, Preferred Stock or Capital Securities
to be received by the holders of Notes would be calculated
according to the market price of Common Stock, Preferred Stock or
Capital Securities as of a time stated in the Prospectus
Supplement.
LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OR CONVERTIBLE
ECURITIES OF, AND MERGER OR SALE OF ASSETS BY, THE BANK
The Senior Indenture contains a covenant that (i) the
Company will not, and will not permit Wells Fargo Bank, National
Association (or its successors or survivors) ("Bank") to issue,
sell, transfer, assign, pledge or otherwise dispose of any shares
of Capital Stock of any class of the Bank or any securities
convertible or exchangeable into shares of Capital Stock of any
class of the Bank, unless, after giving effect to such
transaction and to shares issuable upon conversion or exchange of
outstanding securities convertible or exchangeable into such
Capital Stock (including such securities, if any, which may be
the subject of such transaction), at least 80% of the outstanding
shares of Capital Stock of each class of the Bank shall be owned
at that time directly or indirectly by the Company; and (ii) the
Company will not permit the Bank to merge or consolidate or
convey or transfer all or substantially all of its assets, unless
at least 80% of the outstanding shares of Capital Stock of each
class (after giving effect to such transaction and to shares
issuable upon conversion or exchange of outstanding securities
convertible or exchangeable into Capital Stock, including such
securities, if any, which may be issued in such transaction) of
the surviving corporation in the case of merger or consolidation
or of the transferee corporation in the case of a conveyance or
transfer shall be owned at that time directly or indirectly by
the Company (Section 4.07 of the Senior Indenture). There is no
similar covenant in the Subordinated Indenture.
EVENTS OF DEFAULT
An Event of Default with respect to any series of Senior
Notes is defined in the Senior Indenture as being: (a) default
for 30 days in payment of any installment of interest on Senior
Notes of such series; (b) default in payment of any principal on
Senior Notes of such series; (c) default by the Company in
performance in any material respect of any of the covenants
or agreements in the Senior Notes or in the Senior Indenture
specifically contained
10.
therein for the benefit of the Senior Notes of such series which
shall not have been remedied for a period of 90 days after
written notice to the Company by the Trustee or to the Company
and the Trustee by the holders of not less than 25% in principal
amount of the Senior Notes of such series and all other series so
benefited (all such series voting as one class) then outstanding;
or (d) certain events of bankruptcy, insolvency or reorganization
of the Company or of the Bank (Section 6.01 of the Senior
Indenture). No Event of Default described in clause (a), (b) or
(c) above with respect to a particular series of Senior Notes
necessarily constitutes an Event of Default with respect to any
other series of Senior Notes. In addition, the Senior Indenture
also defines an Event of Default with respect to any series of
Senior Notes as being default in the payment of any indebtedness
for borrowed money of the Company (including a default with
respect to Senior Notes of any series other than such series) or
of the Bank in principal amount in excess of $1,000,000 and the
expiration of any period of grace with respect thereto, or the
occurrence of any event of default as defined in any mortgage,
indenture or instrument (including the Senior Indenture)
evidencing, securing or under which there is issued any
indebtedness for borrowed money of the Company or of the Bank in
principal amount in excess of $1,000,000 that results in the
acceleration of such indebtedness, and such default in payment is
not cured or such acceleration is not rescinded or annulled
within 10 days after written notice to the Company by the Trustee
or to the Company and the Trustee by the holders of not less than
25% in principal amount of all Senior Notes then outstanding (all
series voting as one class), provided that so long as the Company
or the Bank, as the case may be, is contesting in good faith such
default in payment or event of default and the Company delivers
to the Trustee a certificate that the Company or the Bank, as the
case may be, is contesting in good faith the existence of such
payment default or event of default, then no Event of Default
shall be deemed to exist under this clause; such Event of Default
is herein called a "Cross Default."
The Senior Indenture provides that if an Event of Default
under clause (a), (b) or (c) above shall have occurred and be
continuing (but only if, in the case of clause (c), the Event of
Default is with respect to less than all series of Senior Notes
then outstanding under such Indenture), either the Trustee or the
holders of not less than 25% in principal amount of the then
outstanding Senior Notes of the series as to which the Event of
Default has occurred (each such series voting as a separate class
in the case of an Event of Default under clause (a) or (b), and
all such series voting as one class in the case of an Event of
Default under clause (c)) may declare the principal (or portion
thereof specified in the terms of such series) of all the Senior
Notes of such series, or of all such series in the case of an
Event of Default under clause (c) above, in each case together
with any accrued interest, to be due and payable immediately. The
Senior Indenture also provides that if an Event of Default under
clause (c) or (d) above or the Cross Default clause shall have
occurred and be continuing (but only if, in the case of clause
(c), the Event of Default is with respect to all the Senior Notes
then outstanding under the Senior Indenture), either the Trustee
or the holders of not less than 25% in principal amount of all
the Senior Notes then outstanding (voting as one class) may
declare the principal (or portion thereof specified in the terms
of any series) of all the Senior Notes, together with any accrued
interest, to be due and payable immediately. Upon certain
conditions, such declaration (including a declaration caused by a
default in the payment of principal or interest, the payment for
which has subsequently been provided) may be annulled by the
holders of a majority in principal amount of the Senior Notes of
the series then outstanding as were entitled to declare such
default (such series or all series voting as one class, if more
than one series is so entitled). In addition, past defaults may
be waived by the holders of a majority in principal amount of the
Senior Notes of all series then outstanding (all series voting as
one class), except a default in the payment of principal of or
interest on the Senior Notes or in respect of a covenant or
provision of the Senior Indenture which cannot be modified or
amended without the consent of the holder of each Senior Note so
affected (Sections 6.01 and 6.06 of the Senior Indenture).
An Event of Default with respect to any series of
Subordinated Notes is defined in the Subordinated Indenture as
being: (a) default for 30 days in payment of any installment of
interest on Subordinated Notes of such series; (b) default in
payment of any principal on Subordinated Notes of such series;
(c) default by the Company in performance in any material respect
of any of the covenants or agreements in the Subordinated Notes
or in the Subordinated Indenture specifically contained therein
for the benefit of the Subordinated Notes of such series which
shall not have been remedied for a period of 90 days after
written notice to the Company by the Trustee or to the Company and
the Trustee by the holders of not less than 25% in principal
amount of the Subordinated Notes of such
11.
series and all other series so benefited (all such series voting
as one class) then outstanding; or (d) certain events of
bankruptcy, insolvency or reorganization of the Company or the
Bank (Section 6.01 of the Subordinated Indenture). No Event of
Default described in clause (a), (b) or (c) above with respect to
a particular series of Subordinated Notes necessarily constitutes
an Event of Default with respect to any other series of
Subordinated Notes. No Event of Default described in clause (a),
(b) or (c) above permits acceleration of the payment of principal
of the Subordinated Notes. The Subordinated Indenture provides
that if an Event of Default under clause (d) above shall have
occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all the then outstanding
Subordinated Notes of each series as to which such Event of
Default has occurred (voting as one class) may declare the
principal (or a portion thereof specified in the terms of any
series) of all Subordinated Notes as to which such Event of
Default under clause (d) has occurred, together with any accrued
interest, to be due and payable immediately. Upon certain
conditions, such declaration may be annulled by a majority in
principal amount of the Subordinated Notes of the series then
outstanding as were entitled to declare such Event of Default
(such series or all series voting as one class, if more than one
series is so entitled). In addition, past defaults may be waived
by the holders of a majority in principal amount of the
Subordinated Notes of all series then outstanding as to which the
default has occurred (all series voting as one class), except a
default in the payment of principal or interest on any such
Subordinated Notes or in respect of a covenant or provision of
the Subordinated Indenture which cannot be modified or amended
without the consent of the holder of each Subordinated Note so
affected (Sections 6.01 and 6.06 of the Subordinated Indenture).
As a result of the provisions stated in the prior
paragraph, the Subordinated Indenture does not provide for any
right to accelerate the payment of principal of the Subordinated
Notes upon a default in payment of principal or interest or in
the performance of any covenant or agreement in the Subordinated
Notes or the Subordinated Indenture, or upon a default in the
payment or acceleration of other indebtedness of the Company. In
the case of a default in the payment of principal or interest,
the Trustee, subject to certain limitations and conditions, may
institute judicial proceedings to enforce payment of such
principal or interest (Section 6.02 of the Subordinated
Indenture).
Each Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during default to act with the
required standard of care, to be indemnified by the holders of
Notes issued under such Indenture before proceeding to exercise
any right or power under the Indenture at the request of such
holders (Section 7.02). Each Indenture also provides that the
holders of a majority in principal amount of the outstanding
Notes issued thereunder of all series affected (voting as one
class) may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the
Notes of such series (Section 6.06).
Each Indenture contains a covenant that the Company will
file annually with the Trustee a certificate as to the absence of
any default or specifying any default that exists (Section 4.06).
MODIFICATION OF THE INDENTURE AND WAIVER
Each Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than
66-2/3% in principal amount of the Notes of all series then
outstanding under such Indenture affected by such supplemental
indenture (voting as one class), to execute supplemental
indentures adding any provisions to or changing or eliminating
any of the provisions of such Indenture or modifying the rights
of the holders of Notes of each such series, except that no such
supplemental indenture may (i) extend the fixed maturity of any
Notes, or reduce the rate or extend the time of payment of any
interest thereon or on any overdue principal amount, or reduce
the principal amount thereof, or reduce any amount payable upon
any redemption thereof, or change the currency of payment of
principal of or any interest thereon or on any overdue principal
amount, without the consent of the holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all outstanding
Notes under such Indenture (Section 10.02).
12.
Each Indenture provides that the Company may omit in any
particular instance to comply with any covenant or condition
specifically contained in such Indenture for the benefit of one
or more series of Notes (including in the case of the Senior
Indenture, the covenant described above under "Limitation on Sale
or Issuance of Capital Stock or Convertible Securities of, and
Merger or Sale of Assets by, the Bank") if before the time for
such compliance the holders of a majority in principal amount of
the Notes of all series then outstanding under such Indenture,
and, in the case of the Subordinated Indenture, affected by the
omission (voting as one class) waive such compliance in such
instance, but such waiver shall not extend to or affect such
covenant or condition except to the extent so expressly waived
(Section 4.08 of the Senior Indenture and Section 4.07 of the
Subordinated Indenture).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that the Company may not merge or
consolidate or sell or convey all or substantially all of its
assets unless the successor corporation (if other than the
Company) is a domestic corporation, assumes the Company's
obligations under such Indenture and on the Notes issued under
such Indenture, and, after giving effect to such transaction, the
Company or the successor corporation would not be in default
under such Indenture (Section 11.01).
CONCERNING THE TRUSTEES
Chemical Bank is the successor Trustee under the Senior
Indenture. Notices to the Senior Trustee should be directed to
Chemical Bank, Corporate Trust Department, 450 West 33rd Street,
New York, New York 10001, Attention: Vice President. The Company
and the Bank maintain deposit accounts and conduct other banking
transactions with the Senior Trustee in the ordinary course of
business. Marine Midland Bank is the Trustee under the
Subordinated Indenture. Notices to the Subordinated Trustee
should be directed to Marine Midland Bank, 140 Broadway, New
York, New York 10015, Attention: Vice President-Corporate Trust
Administration. The Bank has entered into correspondent banking
relationships with the Subordinated Trustee and with its
corporate parent, The Hong Kong and Shanghai Banking Corporation
Limited ("HSBC"), involving various banking transactions in the
ordinary course of business. As part of their relationship, the
Bank and HSBC have an arrangement providing for the referral of
customers to each other. The Company and the parent of HSBC have
agreed in principle to establish a jointly owned trade bank
called Wells Fargo HSBC Trade Bank.
DESCRIPTION OF PREFERRED STOCK
The following description of Preferred Stock sets forth
certain general terms and provisions of the series of Preferred
Stock to which any Prospectus Supplement may relate. The specific
terms of a particular series of Preferred Stock will be described
in the Prospectus Supplement relating to such series of Preferred
Stock. If so indicated in the Prospectus Supplement relating
thereto, the terms of any such series of Preferred Stock may
differ from the terms set forth below. The description of
Preferred Stock set forth below and the description of the terms
of a particular series of Preferred Stock set forth in the
Prospectus Supplement relating thereto do not purport to be
complete and are qualified in their entirety by reference to the
Company's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and the Certificate of
Designation relating to such series of Preferred Stock, which are
filed or incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company is authorized to issue 25,000,000 shares of
Preferred Stock. The Board of Directors has the authority to
issue Preferred Stock in one or more series and to fix the
specific number of shares, title, liquidation preference of each
share, issue price, dividend rate or rates (or method of
calculation), dividend periods, dividend payment dates, any
redemption or sinking fund provisions, any conversion provisions
and any other specific terms of any series without any further
action by stockholders of the Company unless action is required by
applicable laws
13.
or regulations or by the terms of other outstanding preferred
stock. As of the date of this Prospectus, the Company had three
series of Preferred Stock outstanding consisting of 1,500,000
shares of Adjustable Rate Cumulative Preferred Stock, Series B,
477,500 shares of 9% Preferred Stock, Series C ("9% Preferred
Stock") represented by 9,550,000 Depositary Shares each
representing a one-twentieth interest in a share of 9% Preferred
Stock and 350,000 shares of 8-7/8% Preferred Stock, Series D (the
"8-7/8% Preferred Stock" and together with the 9% Preferred
Stock, the "Fixed Rate Preferred Stock") represented by 7,000,000
Depositary Shares each representing a one-twentieth interest in a
share of 8-7/8% Preferred Stock. The Adjustable Rate Preferred
Stock has a liquidation preference of $50 per share and the Fixed
Rate Preferred Stock has a liquidation preference of $500 per
share or $25 per Depositary Share. See "Description of Capital
Stock-Existing Preferred Stock." Unless otherwise specified in
the Prospectus Supplement relating thereto, the shares of each
series of Preferred Stock will rank on a parity as to dividends
and distributions of assets with each other and with the
Adjustable Rate Preferred Stock and the Fixed Rate Preferred
Stock.
The Prospectus Supplement will set forth the following
specific terms regarding the series of Preferred Stock offered
thereby: (i) the designation, number of shares and liquidation
preference per share; (ii) the initial public offering price;
(iii) the dividend rate or rates, or the method of determining
the dividend rate or rates; (iv) the index, if any, upon which
the amount of dividends, if any, is determined; (v) the dates on
which dividends, if any, will accrue and be payable and the
designated record dates for determining the holders entitled to
such dividends; (vi) any redemption or sinking fund provisions;
(vii) any conversion or exchange provisions; (viii) whether the
Company has elected to offer Depositary Shares as described under
"Description of Depositary Shares"; (ix) provisions for issuance
of global securities; (x) the currency (which may be composite
currency) in which payment of dividends, if any, shall be payable
if other than United States dollars; (xi) voting rights, if
different from those described under "Description of Preferred
Stock - Voting Rights"; and (xii) any additional terms,
preferences or rights.
As described under "Description of Depositary Shares,"
the Company may, at its option, elect to offer depositary shares
("Depositary Shares") evidenced by depositary receipts
("Depositary Receipts"), each representing a fractional interest
(to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the
particular series of the Preferred Stock issued and deposited
with a Depositary (as defined below).
Under regulations adopted by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), if the
holders of shares of any series of preferred stock of the Company
become entitled to vote for the election of directors because the
Board of Directors of the Company has failed to declare or pay
dividends on such series (see "Description of Preferred Stock -
Voting Rights"), such series may then be deemed a class of
"voting securities" and a holder of 25 percent or more of such
series (or a holder of five percent or more if it otherwise
exercises a "controlling influence" over the Company) may then be
subject to regulation as a bank holding company in accordance
with the Bank Holding Company Act of 1956, as amended. In
addition, at such time as such series is deemed a class of voting
securities, any other bank holding company may be required to
obtain the prior approval of the Federal Reserve Board to acquire
five percent or more of such series and any person other than a
bank holding company may be required to obtain the prior approval
of the Federal Reserve Board to acquire ten percent or more of
such series.
The shares of Preferred Stock will, when issued, be fully
paid and nonassessable and will have no preemptive rights.
The transfer agent, registrar, dividend disbursing agent
and redemption agent for the Preferred Stock will be specified in
the Prospectus Supplement relating thereto.
14.
DIVIDENDS
The holders of the Preferred Stock of each series will be
entitled to receive, when, as and if declared by the Board of
Directors of the Company, out of funds legally available
therefor, cumulative or noncumulative cash or other dividends at
such rate or rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such rates may be
fixed or variable or both. If variable, the formula used for
determining the dividend rate for each dividend period will be
set forth in the Prospectus Supplement. Dividends will be payable
to the holders of record as they appear on the stock books of the
Company on such record dates as will be fixed by the Board of
Directors of the Company and specified in the Prospectus
Supplement. If the Board of Directors of the Company fails to
declare a dividend payable on a dividend payment date on any
series of the Preferred Stock for which dividends are
noncumulative ("Noncumulative Preferred Stock"), then the holders
of such series of the Preferred Stock will have no right to
receive a dividend in respect of the dividend period ending on
such dividend payment date, and the Company will have no
obligation to pay a dividend for such period, whether or not
dividends on such series are declared payable on any future
dividend payment dates.
No dividends may be declared in respect of any dividend
period on any other series or class of preferred stock ranking on
a parity as to dividends with the Preferred Stock, Adjustable
Rate Preferred Stock or Fixed Rate Preferred Stock unless full
cumulative dividends on all outstanding shares of each series of
Preferred Stock on which dividends are cumulative and on the
Adjustable Rate Preferred Stock and the Fixed Rate Preferred
Stock shall have been paid in full or contemporaneously are
declared and paid through the most recent dividend payment date,
unless otherwise indicated in the Prospectus Supplement. In the
event that full cumulative dividends on such Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock
have not been declared and paid or set apart when due, the
Company may not declare or pay any dividends on, or make other
distributions on or make any payment on account of the purchase,
redemption, or other retirement, of its Common Stock or any other
stock of the Company ranking as to dividends or upon liquidation
junior to such Preferred Stock, Adjustable Rate Preferred Stock
or Fixed Rate Preferred Stock (other than, in the case of
dividends or distributions, dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock or such other junior ranking
stock), until full cumulative dividends on such Preferred Stock,
Adjustable Rate Preferred Stock and Fixed Rate Preferred Stock
are made or set apart for payment, unless otherwise indicated in
the Prospectus Supplement.
When dividends are not paid in full upon any series of
Preferred Stock, the Adjustable Rate Preferred Stock, the Fixed
Rate Preferred Stock and any other preferred stock ranking on a
parity therewith all dividends declared or made upon shares of
Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate
Preferred Stock and any other series of preferred stock ranking
on a parity therewith shall be declared pro rata so that the
amount of dividends declared per share on Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and
such other preferred stock shall in all cases bear to each other
the same ratio that accrued dividends per share (which, in the
case of Noncumulative Preferred Stock, shall not include any
accumulation in respect of unpaid dividends for prior dividend
periods) on shares of each series of the Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and
such other preferred stock bear to each other. No interest shall
be payable in respect of any dividend payment which may be in
arrears unless otherwise indicated in the Prospectus Supplement.
REDEMPTION
The shares of any series of Preferred Stock may be
redeemable at the option of the Company and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in
each case upon the terms, on the date or dates and at the
redemption price or prices set forth in the Prospectus Supplement
relating to such series. If fewer than all shares of Preferred
Stock are to be redeemed, the shares to be redeemed shall be
selected by the Company pro rata or by lot, or by any other
method determined by the Board of Directors to be equitable.
15.
Under regulations of the Federal Reserve Board, any
perpetual preferred stock with a feature permitting redemption at
the option of the issuer may qualify as capital only if the
redemption is subject to prior approval of the Federal Reserve
Board. Therefore, any redemption of Preferred Stock at the option
of the Company will require the prior approval of the Federal
Reserve Board in order for the Preferred Stock to qualify as
capital for bank regulatory purposes.
If any dividends on shares of any series of Preferred
Stock are in arrears, no shares of Common Stock or shares of
capital stock ranking junior to or on parity with the Preferred
Stock shall be redeemed and no shares of such series of Preferred
Stock shall be redeemed unless all outstanding shares of such
series are simultaneously redeemed, and the Company shall not
purchase or otherwise acquire any shares of such series;
provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of such series pursuant to a
purchase or exchange offer made on the same terms to holders of
all outstanding shares of such series.
Notice of redemption shall be given by mailing the same to
each record holder of the shares to be redeemed, not less than
40 nor more than 70 days prior to the date fixed for redemption
thereof, to the respective addresses of such holders as the same
shall appear on the Company's stock books. Each such notice shall
state: (i) the redemption date; (ii) the number of shares and
series of the Preferred Stock to be redeemed; (iii) the
redemption price and the manner in which such redemption price is
to be paid and delivered; (iv) the place or places where
certificates for such shares of Preferred Stock are to be
surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on
such redemption date. If fewer than all shares of any series of
the Preferred Stock held by any holder are to be redeemed, the
notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
If notice of redemption has been given, from and after the
redemption date for the shares of the series of the Preferred
Stock called for redemption (unless default shall be made by the
Company in providing money for the payment of the redemption
price of the shares so called for redemption), dividends on the
shares of Preferred Stock so called for redemption will cease to
accrue, any right to convert the shares of Preferred Stock will
terminate, such shares will no longer be deemed to be
outstanding, and all rights of the holders thereof as
stockholders of the Company (except the right to receive the
redemption price) will cease. Upon surrender in accordance with
such notice of the certificates representing any shares so
redeemed (properly endorsed or assigned for transfer, if the
Board of Directors of the Company will so require and the notice
shall so state), the redemption price set forth above will be
paid out of funds provided by the Company. If fewer than all of
the shares represented by any such certificate are redeemed, a
new certificate will be issued representing the unredeemed shares
without cost to the holder thereof.
LIQUIDATION PREFERENCE
Upon any liquidation, dissolution or winding up of the
Company, the holders of shares of each series of Preferred Stock
and of the Adjustable Rate Preferred Stock and the Fixed Rate
Preferred Stock shall be entitled to receive out of the assets of
the Company available for distribution to stockholders, before
any distribution of assets is made to or set apart for the
holders of Common Stock or of any other shares of stock of the
Company ranking as to such a distribution junior to the shares of
such series, with respect to the Preferred Stock, an amount
described in the Prospectus Supplement relating to such series of
Preferred Stock, and with respect to the Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock, an amount equal
to the liquidation value of such shares. See "Description of
Capital Stock - Existing Preferred Stock." If, in any case of any
such liquidation, dissolution or winding up of the Company, the
assets of the Company or the proceeds thereof shall be
insufficient to pay in full the amounts payable with respect to
shares of each series of Preferred Stock, Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock and any other
shares of stock of the Company ranking as to any such
distribution on a parity therewith, the holders of shares of such
series of Preferred Stock, Adjustable Rate Preferred Stock and
Fixed Rate Preferred Stock and of such other shares will share
ratably in
any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are
entitled. After payment to the
16.
holders of shares of such series of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock of the full
preferential amounts to which they are entitled, the holders of
shares of such series of Preferred Stock, Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock will not be
entitled to any further participation in any distribution of
assets by the Company, unless otherwise provided in the
Prospectus Supplement. A consolidation or merger of the Company
with one or more corporations shall not be deemed to be a
liquidation, dissolution or winding up of the Company.
CONVERSION AND EXCHANGE
The terms, if any, on which shares of any series of
Preferred Stock are convertible into or exchangeable for Notes,
Common Stock or Capital Securities will be set forth in the
Prospectus Supplement relating thereto. Such terms may include
provisions for conversion or exchange, either mandatory, at the
option of the holder, or at the option of the Company, in which
the number of shares of Common Stock to be received by the
holders of Preferred Stock would be calculated according to the
market price of Common Stock as of a time stated in the
Prospectus Supplement.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement
relating to a particular series of the Preferred Stock, or except
as expressly required by applicable law, the holders of Preferred
Stock will not be entitled to vote.
On matters on which holders of such series and holders of
any other series of Preferred Stock are entitled to vote as a
single class, each full share of any series of the Preferred
Stock shall be entitled to one vote. Therefore, the voting power
of such series will depend on the number of shares in such
series, not the liquidation preference or initial offering price
of the shares of such series of the Preferred Stock. However, as
more fully described under "Description of Depositary Shares," if
the Company elects to provide for the issuance of Depositary
Shares representing fractional interests in a share of a series
of the Preferred Stock, the holders of each such Depositary Share
will, in effect, be entitled through the Depositary to such
fraction of a vote, rather than a full vote. To the extent the
Depositary does not receive specific instructions from the
holders of Depositary Shares relating to such Preferred Stock, it
will vote such shares of Preferred Stock in accordance with the
recommendation of the Company, unless otherwise indicated in the
Prospectus Supplement.
Whenever the Board of Directors shall have failed to
declare and pay dividends on a series of Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock for
dividend periods, whether or not consecutive, containing in the
aggregate a number of days equivalent to six calendar quarters,
the holders of such series of Preferred Stock, Adjustable Rate
Preferred Stock or Fixed Rate Preferred Stock (voting as a class
with all other affected series of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock ranking on a
parity therewith either as to dividends or upon liquidation and
upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two of
the authorized number of directors of the Company at the next
annual meeting of stockholders and at each subsequent meeting
until all dividends which the Board of Directors failed to
declare or pay on such series of Preferred Stock, Adjustable Rate
Preferred Stock or Fixed Rate Preferred Stock have been fully
paid or set apart for payment. In addition, under such
circumstances, certain holders of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock may become
subject to regulation as a bank holding company. See "Description
of Preferred Stock - General." The term of office of all
directors elected by the holders of Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock shall
terminate immediately upon the termination of the right of the
holders of Preferred Stock, Adjustable Rate Preferred Stock and
Fixed Rate Preferred Stock to vote for directors.
So long as any shares of Preferred Stock, Adjustable Rate
Preferred Stock and Fixed Rate Preferred Stock remain
outstanding, the Company shall not, without the consent of the
holders of at least two-thirds of the shares of the affected
series of Preferred Stock, Adjustable Rate Preferred Stock and
Fixed Rate Preferred Stock
17.
outstanding at the time (voting separately as a class with all
other affected series of Preferred Stock ranking on a parity with
the affected series of Preferred Stock, Adjustable Rate Preferred
Stock and Fixed Rate Preferred Stock), (i) authorize, create or
issue, or increase the authorized amount of, any class or series
of stock ranking prior to the affected series of Preferred Stock,
Adjustable Rate Preferred Stock and Fixed Rate Preferred Stock as
to dividends or upon liquidation; or (ii) amend, alter or repeal
the provisions of the Company's Restated Certificate of
Incorporation, whether by merger, consolidation or otherwise, so
as to materially and adversely affect any right, preference,
privilege or voting power of the affected series of Preferred
Stock, Adjustable Rate Preferred Stock or Fixed Rate Preferred
Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized Common Stock or
authorized Preferred Stock or the creation and issuance of other
series of common stock or preferred stock ranking on a parity
with or junior to the affected series of Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock as
to dividends and upon liquidation shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus
Supplement of certain provisions of the Deposit Agreement (as
defined below) and of the Depositary Shares and Depositary
Receipts does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the form of Deposit
Agreement and form of Depositary Receipts relating to each series
of the Preferred Stock which are filed with the Commission as an
exhibit to the Registration Statement of which this Prospectus is
a part.
GENERAL
The Company may, at its option, elect to offer fractional
interests in shares of Preferred Stock. The shares of any series
of the Preferred Stock underlying the Depositary Shares will be
deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company
selected by the Company (the "Depositary"). The Prospectus
Supplement relating to a series of Depositary Shares will set
forth the name and address of the Depositary. Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share
will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting,
redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary
Receipts issued pursuant to the Deposit Agreement, each of which
will represent the fractional interest in a share of a particular
series of the Preferred Stock described in the Prospectus
Supplement.
Unless otherwise specified in the Prospectus Supplement, a
holder of Depositary Shares is not entitled to receive the whole
shares of Preferred Stock underlying the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to
the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the numbers of such Depositary
Shares owned by such holders on the relevant record date. The
Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary
Shares a fraction of one cent, and any balance not so distributed
shall be added to and treated as part of the next sum received by
the Depositary for distribution to record holders of Depositary
Shares.
In the event of a distribution other than in cash, the
Depositary will distribute property received by it to the record
holders of Depositary Shares entitled thereto, unless the
Depositary determines that it is not feasible to make
18.
such distribution, in which case the Depositary may, with the
approval of the Company, sell such property and distribute the
net proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to
the manner in which any subscription or similar rights offered by
the Company to holders of the Preferred Stock shall be made
available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the
Depositary Shares is subject to redemption, the Depositary Shares
will be redeemed from the proceeds received by the Depositary
resulting from the redemption, in whole or in part, of such
series of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable
with respect to such series of the Preferred Stock. If less than
all the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may
be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares
so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary
Shares will cease, except the right to receive the moneys payable
upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such
redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares. Any funds deposited
by the Company with the Depositary for any Depositary Shares
which the holders thereof fail to redeem shall be returned to the
Company after a period of two years from the date such funds are
so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders
of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the
record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Shares on
the record date (which will be the same date as the record date
for the Preferred Stock) will be entitled to instruct the
Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock underlying such holder's
Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such
instructions, and the Company will agree to take all action which
may be deemed necessary by the Depositary in order to enable the
Depositary to do so. To the extent the Depositary does not
receive specific instructions from the holders of Depositary
Shares relating to such Preferred Stock, it will vote shares of
Preferred Stock in accordance with the recommendation of the
Company, unless otherwise indicated in the Prospectus Supplement.
AMENDMENT OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary
Shares and any provision of the Deposit Agreement may at any time
be amended by agreement between the Company and the Depositary,
provided, however, that any amendment which materially and
adversely alters the rights of the existing holder of Depositary
Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the
Depositary Shares then outstanding.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges that arise solely from the existence of the
depositary arrangements. The Company will pay charges of the
Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will
19.
pay all other transfer and other taxes and governmental charges,
and, in addition, such other charges as are expressly provided in
the Deposit Agreement to be for their accounts.
TAXATION
Owners of Depositary Shares will be treated for Federal
income tax purposes as if they were owners of the Preferred Stock
represented by such Depositary Shares and, accordingly, will be
entitled to take into account for Federal income tax purposes
income and deductions to which they would be entitled if they
were holders of such Preferred Stock. In addition, (i) 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, (ii) the tax basis of each
share of Preferred Stock to an exchanging owner of Depositary
Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor, and (iii) the
holding period for shares of the Preferred Stock in the hands of
an exchanging owner of Depositary Shares who held such Depositary
Shares at the time of the exchange thereof for Preferred Stock
will include the period during which such person owned such
Depositary Shares.
MISCELLANEOUS
The Company, or at the option of the Company, the
Depositary, will forward to the holders of Depositary Shares all
reports and communications from the Company which the Company is
required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable if
it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit
Agreement. The obligations of the Company and the Depositary
under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect
of any Depositary Shares or Preferred Stock unless satisfactory
indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary
Shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at
any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment. Such successor Depositary
will be appointed by the Company within 60 days after delivery of
the notice of resignation or removal. The Deposit Agreement may
be terminated at the direction of the Company or by the
Depositary if a period of 90 days shall have expired after the
Depositary has delivered to the Company written notice of its
election to resign and a successor depositary shall not have been
appointed. Upon termination of the Deposit Agreement, the
Depositary will discontinue the transfer of Depositary Receipts,
will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under the
Deposit Agreement except that the Depositary will continue to
deliver Preferred Stock certificates together with such dividends
and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property in exchange for
Depositary Receipts surrendered. Upon request of the Company, the
Depositary shall deliver all books, records, certificates
evidencing Preferred Stock, Depositary Receipts and other
documents respecting the subject matter of the Deposit Agreement
to the Company.
20.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 150,000,000 shares of
Common Stock, par value $5.00 per share, and 25,000,000 shares of
preferred stock, par value $5.00 per share.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each
share of Common Stock held. All outstanding shares of Common
Stock are fully paid and nonassessable.
Holders of Common Stock are entitled to receive such
dividends as are declared by the Board of Directors out of funds
legally available therefor subject to the limitations described
below. In the event of liquidation, holders of the Common Stock
are entitled to receive pro rata any assets distributable after
payment of liabilities and the liquidation preference, if any, on
any shares of Preferred Stock then outstanding. There are no
conversion, preemptive or redemption rights of the Common Stock.
The dividend rights and liquidation preferences relating to the
preferred stock are superior to those relating to the Common
Stock.
The transfer agent and registrar for the Common Stock is
First Chicago Trust Company of New York, New York.
EXISTING PREFERRED STOCK
As of the date of this Prospectus, the Company had three
series of preferred stock outstanding, consisting of 1,500,000
shares of Adjustable Rate Cumulative Preferred Stock, Series B,
477,500 shares of 9% Preferred Stock, Series C represented by
9,550,000 Depositary Shares each representing a one-twentieth
interest in a share of 9% Preferred Stock and 350,000 shares of
8-7/8% Preferred Stock, Series D represented by 7,000,000
Depositary Shares each representing a one-twentieth interest in a
share of 8-7/8% Preferred Stock. The Adjustable Rate Preferred
Stock has a liquidation preference of $50 per share and the Fixed
Rate Preferred Stock has a liquidation preference of $500 per
share or $25 per Depositary Share. Unless full cumulative
dividends on the Preferred Stock, Adjustable Rate Preferred Stock
and Fixed Rate Preferred Stock have been paid, the Company may
not declare dividends on or make any other payment in respect of
any class of stock ranking junior to the Preferred Stock,
Adjustable Rate Preferred Stock or Fixed Rate Preferred Stock,
including the Common Stock. Whenever the Board of Directors of
the Company shall have failed to declare and pay dividends on any
series of Preferred Stock, Adjustable Rate Preferred Stock or
Fixed Rate Preferred Stock for dividend periods, whether or not
consecutive, containing in the aggregate a number of days
equivalent to six calendar quarters, the holders of such series
of Preferred Stock, Adjustable Rate Preferred Stock or Fixed Rate
Preferred Stock (voting as a class with all other affected series
of Preferred Stock, Adjustable Rate Preferred Stock or Fixed Rate
Preferred Stock ranking on a parity therewith either as to
dividends or upon liquidation and upon which like voting rights
have been conferred and are exercisable) will be entitled to vote
for the election of two of the authorized number of directors of
the Company at the next annual meeting of stockholders and at
each subsequent meeting until all dividends which the Board of
Directors failed to declare or pay on the affected series of
Preferred Stock, Adjustable Rate Preferred Stock or Fixed Rate
Preferred Stock have been fully paid or set apart for payment.
The holders of Preferred Stock, Adjustable Rate Preferred Stock
and Fixed Rate Preferred Stock have preference and priority over
holders of Common Stock in the event of liquidation for payment
of the liquidation preference of the Preferred Stock, Adjustable
Rate Preferred Stock and Fixed Rate Preferred Stock plus an
amount equal to all accrued and unpaid dividends thereon.
21.
CAPITAL SECURITIES
Capital Securities may consist of Common Stock, Preferred
Stock or other capital securities of the Company that qualify at
the time of exchange or conversion as Capital Securities as
determined by the Company's primary federal regulator. Such other
Capital Securities will have such terms as may be determined by
the Company. All such Capital Securities that will be
exchangeable for Offered Securities or issuable upon conversion
of Offered Securities will be, upon issuance, duly authorized,
validly issued and, if applicable, fully paid and nonassessable.
See "Description of Preferred Stock" and "Description of Capital
Stock - Common Stock."
PLAN OF DISTRIBUTION
The Company and certain holders of Offered Securities may
offer and sell the Offered Securities to one or more underwriters
for resale by them or through agents, or to investors directly.
The Prospectus Supplement with respect to each series of Offered
Securities will set forth the terms of the offering of the
Offered Securities, including the name or names of any
underwriters or agents, the purchase price of the Offered
Securities and the net proceeds to the Company or selling
securityholders from such sale, any underwriting discounts,
agency fees and other items constituting underwriters' or agents'
compensation, any initial public offering price and any discounts
or concessions allowed, reallowed or paid to dealers.
If any underwriters are involved in the offer and sale,
the Offered Securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Unless otherwise set forth in the accompanying
Prospectus Supplement, the obligations of the underwriters to
purchase the Offered Securities will be subject to certain
conditions precedent and the underwriters will be obligated to
purchase all the Offered Securities described in such Prospectus
Supplement if any are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Underwriters and agents may be entitled, under agreements
entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the
Securities Act of 1933.
Employees of the Bank may act as finders of purchasers of
Offered Securities. Their activities will be limited to
contacting customers and informing them of the terms of the
Offered Securities offered by the Company. The Company believes
that such persons are not required to be registered as brokers or
dealers under Section 3(a)(4) and 3(a)(5) of the Act since they
are acting as employees on behalf of a bank.
LEGAL OPINIONS
The legality of the Offered Securities offered hereby will
be passed upon for the Company by Brobeck, Phleger & Harrison,
San Francisco, for the underwriters, if any, by Davis Polk &
Wardwell, New York City and for the agents, if any, by Brown &
Wood, San Francisco. Davis Polk & Wardwell may rely on the
opinion of Brobeck, Phleger & Harrison as to matters of
California law. Davis Polk & Wardwell represents the Company from
time to time.
EXPERTS
The consolidated financial statements of the Company as of
December 31, 1994 and 1993 and for each of the years in the
three-year period ended December 31, 1994 incorporated by
reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 incorporated by reference herein and
elsewhere in the Registration Statement have been incorporated by
reference herein and in the Registration Statement in reliance
upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
22.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration Fee................................ $711,293
Printing and Engraving.......................... 20,000
Legal Fees...................................... 175,000
Accounting Fees................................. 40,000
Blue Sky and Legal Investment Fees.............. 35,000
Rating Agencies' Fees........................... 780,000
Trustee's Fees.................................. 40,000
Miscellaneous................................... 707
Total........................................$1,802,000
==========
The foregoing amounts are the best estimates of the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation
Law, the Registrant has broad powers to indemnify its directors
and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act of
1933. Registrant's By-Laws require Registrant to indemnify its
directors, officers and employees to the full extent permitted by
Delaware law against certain liabilities and expenses incurred as
a result of proceedings involving such persons in their
capacities as such, including proceedings under the Securities
Act of 1933 or the Securities Exchange Act of 1934. The By-Laws
further provide that rights conferred under such By-Laws shall
not be deemed to be exclusive of any other right such persons may
have or acquire under any statute, provision or any certificate
of incorporation, by-law, agreement, vote of stockholders,
disinterested directors or otherwise. The Restated Certificate of
Incorporation of Registrant precludes, with certain exceptions,
Registrant and its stockholders from recovering monetary damages
from directors for business decisions found by a court to have
been negligent or grossly negligent, including decisions relating
to a change in control of Registrant.
Reference is made to Article VI of the form of
Underwriting Agreements and Section 5 of the forms of
Distribution Agreement and Finder Agreement filed as exhibits
hereto pursuant to which underwriters, agents or finders may
under certain circumstances indemnify the directors and officers
of the Registrant. Directors and officers of the Registrant may
also be indemnified in certain circumstances under the terms of
other underwriting agreements entered into by the Registrant in
connection with prior public offerings.
ITEM 16. EXHIBITS.
1(a) - Form of firm commitment Underwriting Agreement for Senior
Notes. Incorporated by reference to Exhibit 1(a) to
Registration Statement No. 33-53514 filed on December 8,
1992.
1(b) - Form of firm commitment Underwriting Agreement for
Subordinated Notes. Incorporated by reference to
Exhibit 1(b) to Registration Statement No. 33-53514
filed on December 8, 1992.
1(c) - Form of firm commitment Underwriting Agreement for
Preferred Stock. Incorporated by reference to Exhibit 1(c)
to Registration Statement No. 33-53514 filed on December 8,
1992.
1(d) - Form of Distribution Agreement.
II-1.
1(e) - Finder Agreement. Incorporated by reference
to Exhibit 1(d) of the Company's Report on
Form 8-K filed January 23, 1991.
1(f) - Amendment No. 1 to Finder Agreement. Incorporated by
reference to Exhibit 1(g) to Registration Statement
No. 33-42273 filed on August 19, 1991.
1(g) - Form of Amendment No. 2 to Finder Agreement. Incorporated
by reference to Exhibit 1(h) to Registration Statement
No. 33-42273 filed on August 19, 1991.
1(h) - Amendment No. 3 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement
No. 33-53514 filed on December 8, 1992.
1(i) - Amendment No. 4 to Finder Agreement. Incorporated by
reference to Exhibit 1(i) to Registration Statement
No. 33-51227 filed on November 30, 1993.
1(j) - Amendment No. 5 to Finder Agreement dated March 24, 1994.
1(k) - Form of Amendment No. 6 to Finder Agreement.
4(a) - Form of Senior Indenture, dated as of
September 1, 1984, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Registration Statement No. 2-93314
filed on September 18, 1984.
4(b) - Form of First Supplemental Indenture, dated
as of April 15, 1986, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(b) to Registration Statement No. 33-4573
filed on April 4, 1986.
4(c) - Form of Second Supplemental Indenture,
dated as of June 30, 1987, between Wells
Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to
Exhibit 4.10 to Form 8-B filed June 30, 1987.
4(d) - Form of Third Supplemental Indenture, dated
as of January 23, 1991, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Form 8-K filed on January 23, 1991.
4(e) - Form of Subordinated Indenture.
Incorporated by reference to Exhibit 4(e) to
Registration Statement No. 33-53514 filed on
December 8, 1992.
4(f) - Form of fixed rate Senior Note.
Incorporated by reference to Exhibit 4(b) to
Registration Statement No. 2-95939 filed on
February 20, 1985.
4(g) - Form of floating rate Senior Note.
Incorporated by reference to Exhibit 4(c) to
Registration Statement No. 2-95939 filed on
February 20, 1985.
4(h) - Form of original issue discount or zero
coupon Senior Note. Incorporated by reference
to Exhibit 4(d) to Registration Statement No.
2-95939 filed on February 20, 1985.
4(i) - Form of fixed interest bearing Subordinated
Note. Incorporated by reference to Exhibit
4(i) to Registration Statement No. 33-53514
filed on December 8, 1992.
II-2.
4(j) - Form of floating interest bearing
Subordinated Note. Incorporated by reference
to Exhibit 4(j) to Registration Statement No.
33-53514 filed on December 8, 1992.
4(k) - Form of original issue discount or zero
coupon Subordinated Note. Incorporated by
reference to Exhibit 4(k) to Registration
Statement No. 33-53514 filed on December 8,
1992.
4(l) - Form of Medium-Term Fixed Rate Note.
4(m) - Form of Medium-Term Floating Rate Note.
4(n) - Restated Certificate of Incorporation of
the Company (incorporated by reference to
Exhibit 3(a) to Annual Report on Form 10-K
for the year ended December 31, 1993).
4(o) - Bylaws of the Company (incorporated by
reference to Exhibit 3(ii) to Form 8-K filed
on April 18, 1995).
4(p) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3(c) of Form 10-K filed March 21,
1994.
4(q) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed October 24, 1991.
4(r) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed March 5, 1992.
4(s) - Form of Deposit Agreement. Incorporated by
reference to Exhibit 4(f) to Registration
Statement No. 33-45066 filed on January 22,
1992.
4(t) - Form of Depositary Receipt. Incorporated by
reference to Exhibit 4(g) to Registration
Statement No. 33-45066 filed on January 22,
1992.
5(a) - Opinion of Brobeck, Phleger & Harrison with
respect to the validity of the Offered Securities.
12(a) - Computation of ratios of earnings to fixed charges
and preferred dividend requirements (consolidated).
23(a) - Consent of KPMG Peat Marwick LLP.
23(b) - Consent of Brobeck, Phleger & Harrison (included
in Exhibit 5(a)).
24(a) - Power of Attorney (included on page II-5).
25(a) - Statement of Eligibility of Chemical Bank.
25(b) - Statement of Eligibility of Marine Midland Bank.
II-3
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the
prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective
amendment thereof) which individually or in the aggregate
represent a fundamental change in the information set forth in
the Registration Statement; and (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any
material change to such information in the Registration
Statement; provided, however, that (i) and (ii) do not apply if
the Registration is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by (i) and
(ii) is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15 of the Securities Exchange
Act of 1934 that are incorporated by reference in the
Registration Statement.
Notwithstanding subparagraph (ii) above, 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) under the Securities Act of 1933 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling persons of the Registrant in the successful defense
of any action, suit or proceeding and other than indemnification
covered by insurance) is asserted by such director, officer or
controlling persons in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
II-4.
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 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San
Francisco, State of California, this 22nd day of June, 1995.
WELLS FARGO & COMPANY
By: /s/ Alan J. Pabst
____________________________________
Alan J. Pabst
(Senior Vice President and Treasurer)
POWER OF ATTORNEY
KNOW EVERYONE BY THESE PRESENTS:
That the undersigned officers and directors of
Wells Fargo & Company, a Delaware corporation, do hereby
constitute and appoint Paul Hazen, William F. Zuendt, Rodney L.
Jacobs, Alan J. Pabst and any one of them, the lawful attorneys
and agents or attorney and agent, with power and authority to do
any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable
said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereto, and
each of the undersigned hereby ratifies and confirms all that
said attorneys and agents or any of them shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed below by
the following persons in the capacities and on the date
indicated:
Signature Title Date
/s/ Paul Hazen Chairman and Chief Executive June 22, 1995
- --------------------- Officer (Principal Executive
Paul Hazen Officer)
/s/ William F. Zuendt President and Director June 22, 1995
- ---------------------
William F. Zuendt
/s/ Rodney L. Jacobs Vice Chairman and Chief Financial June 22, 1995
- --------------------- Officer (Principal Financial Officer)
Rodney L. Jacobs
II-5.
/s/ Frank A. Moeslein Executive Vice President and June 22, 1995
- --------------------- Controller (Principal Accounting
Frank A. Moeslein Officer)
/s/ H. Jessee Arnelle Director June 22, 1995
- ---------------------
H. Jessee Arnelle
/s/ William R. Breuner Director June 22, 1995
- ----------------------
William R. Breuner
/s/ William S. Davila Director June 22, 1995
- ---------------------
William S. Davila
/s/ Rayburn S. Dezember Director June 22, 1995
- -----------------------
Rayburn S. Dezember
/s/ Robert K. Jaedicke Director June 22, 1995
- ----------------------
Robert K. Jaedicke
/s/ Ellen M. Newman Director June 22, 1995
- -------------------
Ellen M. Newman
/s/ Philip J. Quigley Director June 22, 1995
- ---------------------
Philip J. Quigley
/s/ Carl E. Reichardt Director June 22, 1995
- ---------------------
Carl E. Reichardt
/s/ Donald B. Rice Director June 22, 1995
- ------------------
Donald B. Rice
/s/ Susan G. Swenson Director June 22, 1995
- --------------------
Susan G. Swenson
/s/ Chang-Lin Tien Director June 22, 1995
__________________
Chang-Lin Tien
/s/ John A. Young Director June 22, 1995
- -----------------
John A. Young
II-6.
INDEX OF EXHIBITS
Found on
Sequentially
Numbered Page
_____________
1(a) - Form of firm commitment Underwriting Agreement for Senior
Notes. Incorporated by reference to Exhibit 1(a) to Registration
Statement No. 33-53514 filed on December 8, 1992.
1(b) - Form of firm commitment Underwriting Agreement for
Subordinated Notes. Incorporated by reference to Exhibit 1(b) to
Registration Statement No. 33-53514 filed on December 8, 1992.
1(c) - Form of firm commitment Underwriting Agreement for Preferred
Stock. Incorporated by reference to Exhibit 1(c) to Registration
Statement No. 33-53514 filed on December 8, 1992.
1(d) - Form of Distribution Agreement.
1(e) - Finder Agreement. Incorporated by reference
to Exhibit 1(d) of the Company's Report on
Form 8-K filed January 23, 1991.
1(f) - Amendment No. 1 to Finder Agreement. Incorporated by
reference to Exhibit 1(g) to Registration Statement No. 33-42273
filed on August 19, 1991.
1(g) - Form of Amendment No. 2 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement No. 33-42273
filed on August 19, 1991.
1(h) - Amendment No. 3 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement No. 33-53514
filed on December 8, 1992.
1(i) - Amendment No. 4 to Finder Agreement. Incorporated by
reference to Exhibit 1(i) to Registration Statement No. 33-51227
filed on November 30, 1993.
1(j) - Amendment No. 5 to Finder Agreement, dated March 24, 1994.
1(k) - Form of Amendment No. 6 to Finder Agreement.
4(a) - Form of Senior Indenture, dated as of
September 1, 1984, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Registration Statement No. 2-93314
filed on September 18, 1984.
II-7.
4(b) - Form of First Supplemental Indenture, dated
as of April 15, 1986, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(b) to Registration Statement No. 33-4573
filed on April 4, 1986.
4(c) - Form of Second Supplemental Indenture,
dated as of June 30, 1987, between Wells
Fargo & Company and Manufacturers Hanover
Trust Company. Incorporated by reference to
Exhibit 4.10 to Form 8-B filed June 30, 1987.
4(d) - Form of Third Supplemental Indenture, dated
as of January 23, 1991, between Wells Fargo &
Company and Manufacturers Hanover Trust
Company. Incorporated by reference to Exhibit
4(a) to Form 8-K filed on January 23, 1991.
4(e) - Form of Subordinated Indenture.
Incorporated by reference to Exhibit 4(e) to
Registration Statement No. 33-53514 filed on
December 8, 1992.
4(f) - Form of fixed rate Senior Note. Incorporated by reference to
Exhibit 4(b) to Registration Statement No. 2-95939 filed on
February 20, 1985.
4(g) - Form of floating rate Senior Note. Incorporated by reference to
Exhibit 4(c) to Registration Statement No. 2-95939 filed on
February 20, 1985.
4(h) - Form of original issue discount or zero
coupon Senior Note. Incorporated by reference
to Exhibit 4(d) to Registration Statement No.
2-95939 filed on February 20, 1985.
4(i) - Form of fixed interest bearing Subordinated
Note. Incorporated by reference to Exhibit
4(i) to Registration Statement No. 33-53514
filed on December 8, 1992.
4(j) - Form of floating interest bearing
Subordinated Note. Incorporated by reference
to Exhibit 4(j) to Registration Statement
No. 33-53514 filed on December 8, 1992.
4(k) - Form of original issue discount or zero
coupon Subordinated Note. Incorporated by
reference to Exhibit 4(k) to Registration
Statement No. 33-53514 filed on December 8,
1992.
4(l) - Form of Medium-Term Fixed Rate Note.
4(m) - Form of Medium-Term Floating Rate Note.
4(n) - Restated Certificate of Incorporation of
the Company (incorporated by reference to
Exhibit 3(a) to Annual Report on Form 10-K
for the year ended December 31, 1993).
II-8.
4(o) - Bylaws of the Company (incorporated by
reference to Exhibit 3(ii) to Form 8-K filed
on April 18, 1995).
4(p) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3(c) of Form 10-K filed March 21, 1994.
4(q) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed October 24, 1991.
4(r) - Form of Certificate of Designation for
Preferred Stock. Incorporated by reference to
Exhibit 3 of Form 8-K filed March 5, 1992.
4(s) - Form of Deposit Agreement. Incorporated by
reference to Exhibit 4(f) to Registration
Statement No. 33-45066 filed on January 22,
1992.
4(t) - Form of Depositary Receipt. Incorporated by
reference to Exhibit 4(g) to Registration
Statement No. 33-45066 filed on January 22,
1992.
5(a) - Opinion of Brobeck, Phleger & Harrison with
respect to the validity of the Offered
Securities.
12(a) - Computation of ratios of earnings to fixed
charges and preferred dividend requirements
(consolidated).
23(a) - Consent of KPMG Peat Marwick LLP.
23(b) - Consent of Brobeck, Phleger & Harrison (included in Exhibit 5(a)).
24(a) - Power of Attorney (included on page II-5).
25(a) - Statement of Eligibility of Chemical Bank.
25(b) - Statement of Eligibility of Marine Midland Bank.
II-9.