WELLS FARGO & COMPANY
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CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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2000 ESOP CUMULATIVE CONVERTIBLE PREFERRED STOCK
(Without Par Value)
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WELLS FARGO & COMPANY, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), HEREBY CERTIFIES that,
pursuant to authority conferred upon the Board of Directors of the Company
(the "Board") by the provisions of the Restated Certificate of Incorporation
of the Company, as amended, which authorizes the issuance of not more than
20,000,000 shares of Preferred Stock, without par value (the "Preferred
Stock"), and pursuant to authority conferred upon the ESOP Preferred Stock
Committee I of the Board (the "ESOP Committee") in accordance with Section
141(c) of the General Corporation Law of the State of Delaware (the "General
Corporation Law") and by the resolutions of the Board set forth herein, the
following resolutions were duly adopted by the Board at a meeting of the
Board duly held on January 25, 2000, and by the ESOP Committee pursuant to
the written consent of the ESOP Committee duly adopted on March 27, 2000, in
accordance with Section 141(f) of the General Corporation Law:
1. On January 25, 2000, the Board adopted the following
resolutions (the "ESOP Board Resolutions") appointing the ESOP Committee and
delegating to the ESOP Committee the full powers of the Board, subject to the
ESOP Board Resolutions, in all matters relating to issuance of one or more
series of Preferred Stock ("ESOP Preferred Stock") to the trustee on behalf
of the Company's 401(k) Plan hereinafter referred to:
RESOLVED that a committee of one member of the Board of the Company is
hereby appointed by the Board as the ESOP Preferred Stock Committee I (the
"First Committee"), which shall have and may exercise the full powers of the
Board, subject to these resolutions, to issue from time to time one or more
series of ESOP Preferred Stock, including any shares of Company common stock
($1 2/3 par value) issuable upon conversion of ESOP Preferred Stock, and in
connection therewith, to fix the designations, voting powers, preferences,
and all other rights, qualifications and restrictions of such ESOP Preferred
Stock, to sell such ESOP Preferred Stock to the Plan on such terms and
conditions and for such purchase price as the First Committee in its
discretion shall approve, and to take any and all actions as the First
Committee shall deem necessary or appropriate.
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RESOLVED that Richard M. Kovacevich is designated to serve as the sole
member of the First Committee until his successor is duly elected and
qualified.
* * * *
RESOLVED that any series of ESOP Preferred Stock authorized for
issuance by the First Committee . . . shall have the voting rights set forth
in Appendix A to these resolutions.
APPENDIX A - VOTING RIGHTS
No series of the Preferred Stock, except as hereinafter set forth in
this resolution or as otherwise from time to time required by law, shall have
voting rights. Whenever, at any time or times, dividends payable on any
shares of a designated series of the Preferred Stock (such shares of such
designated series of Preferred Stock being hereinafter referred to as the
"Shares of such series") shall be in arrears for such number of dividend
periods which shall in the aggregate contain not less than 540 days, the
holders of the outstanding Shares of such series shall have the exclusive
right, voting together as a class with holders of shares of any one or more
other series of Preferred Stock ranking on a parity with the Shares of such
series, either as to dividends or on the distribution of assets upon
liquidation, dissolution or winding up, and upon which like voting rights
have been conferred and are exercisable, to elect two directors of the
Company at the Company's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such directors,
each holder of the Shares of such series shall be entitled to one vote for
each share held (the holders of shares of any other series of Preferred Stock
ranking on such a parity being entitled to such number of votes, if any, for
each share of Preferred Stock held as may be granted to them). Upon the
vesting of such right of such holders, the maximum authorized number of
members of the Board shall automatically be increased by two and the two
vacancies so created shall be filled by vote of the holders of such
outstanding Shares of such series (together with the holders of shares of any
one or more other series of Preferred Stock ranking on such a parity and upon
which like voting rights have been conferred and are exercisable) as herein
set forth. The right of such holders of such Shares of such series (voting
together as a class with the holders of shares of any one or more other
series of Preferred Stock ranking on such a parity and upon which like voting
rights have been conferred and are exercisable) to elect members of the Board
as aforesaid shall continue until such time as all dividends accumulated on
such Shares of such series shall have been paid in full, at which time such
right with respect to such Shares of such series shall terminate, except as
herein or by law expressly provided, subject to revesting in the event of
each and every subsequent default of the character above mentioned.
Upon any termination of the right of the holders of all shares of
Preferred Stock entitled to vote for directors as herein provided, the term
of office of all directors then in office elected by such holders voting as a
class shall terminate immediately. If the office
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of any director elected by such holders voting as a class becomes vacant by
reason of death, resignation, retirement, disqualification, removal from
office or otherwise, the remaining director elected by such holders may
choose a successor to fill such vacancy, which such successor shall hold
office for the unexpired term in respect of which such vacancy occurred.
Whenever the term of office of the directors elected by such holders voting
as a class shall end and the special voting powers vested in such holders as
provided in this resolution shall have expired, the number of directors shall
be such number as may be provided for in the By-Laws of the Company
irrespective of any increase made pursuant to the provisions of this
resolution.
So long as any Shares of such series remain outstanding, the consent of
the holders of the outstanding Shares of such series and outstanding shares
of all other series of Preferred Stock ranking on a parity with such Shares
of such series either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, by a vote of at least two-thirds of all
such outstanding Shares of such series and such other series of Preferred
Stock voting together as a class, given in person or by proxy, either in
writing or at any special or annual meeting called for the purpose, shall be
necessary to permit, effect or validate any one or more of the following:
(a) the authorization, creation or issuance, or any increase
in the authorized or issued amount, of any class or series of stock
ranking prior to the Shares of such series with respect to payment of
dividends or the distribution of assets on liquidation, dissolution or
winding up, or
(b) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Restated
Certificate of Incorporation or of the resolutions set forth in a
Certificate of Designation for the Shares of such series designating
the Shares of such series and the preferences and relative,
participating, optional and other special rights and qualifications,
limitations and restrictions thereof which would materially and
adversely affect any right, preference, privilege or voting power of
the Shares of such series or of the holders thereof; provided, however,
that any increase in the amount of authorized Preferred Stock or the
creation and issuance of other series of Preferred Stock, or any
increase in the amount of authorized shares of any series of Preferred
Stock, in each case ranking on a parity with or junior to the Shares of
such series with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up,
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Shares of such series shall have been
redeemed or sufficient funds shall have been deposited in trust to effect
such redemption.
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2. On March 27, 2000, pursuant to authority conferred upon it by
the Board in the ESOP Board Resolutions, the ESOP Committee adopted the
following resolutions by written consent in accordance with Section 141(f) of
the General Corporation Law:
RESOLVED that the issuance of a series of Preferred Stock, without par
value, of the Company is hereby authorized and the designation, voting
powers, preferences, and relative, participating, optional, and other special
rights, and qualifications, limitations and restrictions thereof, in addition
to those set forth in the Restated Certificate of Incorporation of the
Company, as amended, are hereby fixed as follows:
2000 ESOP CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. DESIGNATION AND NUMBER OF SHARES; RESTRICTED ISSUE.
(a) The designation of the series of Preferred Stock, without par
value, provided for herein shall be "2000 ESOP Cumulative Convertible
Preferred Stock" (hereinafter referred to as the "2000 ESOP Preferred Stock")
and the number of authorized shares constituting the 2000 ESOP Preferred
Stock is 170,000, based on an offering price for the 2000 ESOP Preferred
Stock of $1,065.00 per share. Each share of 2000 ESOP Preferred Stock shall
have a stated value of $1,000.00 per share. The number of authorized shares
of 2000 ESOP Preferred Stock may be reduced by further resolution duly
adopted by the Board or the Securities Committee and by the filing of a
certificate pursuant to the provisions of the General Corporation Law of the
State of Delaware stating that such reduction has been so authorized,
provided, however, that the authorized number of shares of 2000 ESOP
Preferred Stock shall not be decreased below the then outstanding number of
such shares, and provided further that the number of authorized shares of
2000 ESOP Preferred Stock shall not be increased. All shares of the 2000
ESOP Preferred Stock purchased, redeemed, or converted by the Company shall
be retired and canceled and shall be restored to the status of authorized but
unissued shares of Preferred Stock, without designation as to series, and may
thereafter be issued, but not as shares of 2000 ESOP Preferred Stock.
(b) Shares of 2000 ESOP Preferred Stock shall be issued only to
a trustee (the "Trustee") acting on behalf of the Wells Fargo & Company
401(k) Plan, or any successor to such plan (the "Plan"). All references to
the holder of shares of 2000 ESOP Preferred Stock shall mean the Trustee or
any company with which or into which the Trustee may merge or any successor
trustee under the trust agreement with respect to the Plan. In the event of
any transfer of record ownership of shares of 2000 ESOP Preferred Stock to
any person other than any successor trustee under the Plan, the shares of
2000 ESOP Preferred Stock so transferred, upon such transfer and without any
further action by the Company or the holder thereof, shall be automatically
converted into shares of the common stock, par value $1-2/3 per share, of the
Company (the "Common Stock") on the terms otherwise provided for the
conversion of the shares of 2000 ESOP Preferred Stock into shares of Common
Stock pursuant to paragraph (a) of Section 4 hereof, and no such transferee
shall have any of the voting powers, preferences, and relative,
participating, optional or special rights ascribed to shares of 2000 ESOP
Preferred Stock hereunder but,
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rather, only the powers and rights pertaining to the Common Stock into which
such shares of 2000 ESOP Preferred Stock shall be so converted. In the event
of such a conversion, the transferee of the shares of 2000 ESOP Preferred
Stock shall be treated for all purposes as the record holder of the shares of
Common Stock into which such shares of 2000 ESOP Preferred Stock have been
automatically converted as of the date of such transfer. Shares of 2000 ESOP
Preferred Stock may be certificated or uncertificated, at the Company's
option. Certificates representing shares of 2000 ESOP Preferred Stock shall
bear a legend to reflect the foregoing provisions. In the case of
uncertificated 2000 ESOP Preferred Stock, the transfer agent for the 2000
ESOP Preferred Stock shall note the foregoing provisions on each 2000 ESOP
Preferred Stock book entry account. The Company may require that, as a
condition to transferring record ownership of any uncertificated 2000 ESOP
Preferred Stock, the proposed transferee acknowledge in writing that the
shares of 2000 ESOP Preferred Stock are subject to the foregoing provisions.
Notwithstanding the foregoing provisions of this paragraph (b) of Section 1,
shares of 2000 ESOP Preferred Stock (i)(A) shall be converted into shares of
Common Stock as provided in paragraph (a) of Section 4 hereof, and (B) may be
converted into shares of Common Stock as provided by paragraph (b) of Section
4 hereof and the shares of Common Stock issued upon such conversion may be
transferred by the holder thereof as permitted by law and (ii) shall be
redeemable by the Company upon the terms and conditions provided in Sections
5 and 6(c) hereof.
2. VOTING RIGHTS. No shares of 2000 ESOP Preferred Stock shall have
voting rights except such voting rights as may from time to time be required
by law and as set forth in this Section 2, as follows:
(a) Whenever, at any time or times, dividends payable on shares of
2000 ESOP Preferred Stock shall be in arrears for such number of dividend
periods which shall in the aggregate contain not less than 540 days, the
holders of the outstanding shares of 2000 ESOP Preferred Stock shall have the
exclusive right, voting together as a class with holders of shares of any one
or more other series of Preferred Stock ranking on a parity with the shares
of 2000 ESOP Preferred Stock, either as to dividends or on the distribution
of assets upon liquidation, dissolution or winding up, and upon which like
voting rights have been conferred and are exercisable, to elect two directors
of the Company at the Company's next annual meeting of stockholders and at
each subsequent annual meeting of stockholders. At elections for such
directors, each holder of the shares of 2000 ESOP Preferred Stock shall be
entitled to one vote for each share held (the holders of shares of any other
series of Preferred Stock ranking on such a parity being entitled to such
number of votes, if any, for each share of Preferred Stock held as may be
granted to them). Upon the vesting of such right of such holders, the
maximum authorized number of members of the Board shall automatically be
increased by two and the two vacancies so created shall be filled by vote of
the holders of such outstanding shares of 2000 ESOP Preferred Stock (together
with the holders of shares of any one or more other series of Preferred Stock
ranking on such a parity and upon which like voting rights have been
conferred and are exercisable) as herein set forth. The right of such
holders of such shares of 2000 ESOP Preferred Stock (voting together as a
class with the holders of shares of any one or more other series of Preferred
Stock ranking on such a parity and upon which like voting rights have been
conferred and are exercisable) to elect
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members of the Board as aforesaid shall continue until such time as all
dividends accumulated on such shares of 2000 ESOP Preferred Stock shall have
been paid in full, at which time such right with respect to such shares of
2000 ESOP Preferred Stock shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
(b) Upon any termination of the right of the holders of all shares of
Preferred Stock entitled to vote for directors as herein provided, the term
of office of all directors then in office elected by such holders voting as a
class shall terminate immediately. If the office of any director elected by
such holders voting as a class becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office or otherwise,
the remaining director elected by such holders may choose a successor to fill
such vacancy, which such successor shall hold office for the unexpired term
in respect of which such vacancy occurred. Whenever the term of office of
the directors elected by such holders voting as a class shall end and the
special voting powers vested in such holders as provided in this resolution
shall have expired, the number of directors shall be such number as may be
provided for in the By-laws of the Company irrespective of any increase made
pursuant to the provisions of this resolution.
(c) So long as any shares of 2000 ESOP Preferred Stock remain
outstanding, the consent of the holders of the outstanding shares of 2000
ESOP Preferred Stock and outstanding shares of all other series of Preferred
Stock ranking on a parity with such shares of 2000 ESOP Preferred Stock
either as to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been
conferred and are exercisable, by a vote of at least two-thirds of all such
outstanding shares of 2000 ESOP Preferred Stock and such other series of
Preferred Stock voting together as a class, given in person or by proxy,
either in writing or at any special or annual meeting called for the purpose,
shall be necessary to permit, effect or validate any one or more of the
following:
(i) the authorization, creation or issuance, or any increase
in the authorized or issued amount, of any class or series of stock ranking
prior to shares of 2000 ESOP Preferred Stock with respect to payment of
dividends or the distribution of assets on liquidation, dissolution or
winding up, or
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Restated
Certificate of Incorporation or of the resolutions set forth in a Certificate
of Designations designating shares of 2000 ESOP Preferred Stock and the
preferences and relative, participating, optional and other special rights
and qualifications, limitations and restrictions thereof which would
materially and adversely affect any right, preference, privilege or voting
power of the shares of 2000 ESOP Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized Preferred
Stock, or the creation and issuance of other series of Preferred Stock, or
any increase in the amount of authorized shares of any series of Preferred
Stock, in each case ranking on a parity with or junior to the shares of 2000
ESOP Preferred Stock with respect to the payment of
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dividends and the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
(d) The foregoing voting provisions shall not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of 2000 ESOP Preferred
Stock shall have been redeemed or sufficient funds shall have been deposited
in trust to effect such redemption.
3. DIVIDENDS. (a)(i) Holders of shares of 2000 ESOP Preferred
Stock will be entitled to receive, when and as declared by the Board or a
duly authorized committee thereof, out of assets of the Company legally
available for payment, an annual cash dividend of $115.00 (the "Base
Dividend") per share, which Base Dividend shall be subject to adjustment from
time to time as provided in this Section 3.
(ii) The Base Dividend shall be adjusted, effective on December 1,
2001 and on each December 1 thereafter until December 1, 2010, as follows:
(1) If the Current Market Price (as hereinafter
defined) of one share of Common Stock on November 30 (or the next
preceding Trading Day (as hereinafter defined) if November 30 is not a
Trading Day) of any year listed in the Dividend Adjustment Table below
is equal to or greater than the First Target Price but less than the
Second Target Price shown opposite that year in such table, then
holders of shares of the 2000 ESOP Preferred Stock will be entitled to
receive a cash dividend for the immediately following twelve month
period equal to $120.00 per share (the "First Adjusted Dividend").
(2) If the Current Market Price of one share of
Common Stock on November 30 (or the next preceding Trading Day if
November 30 is not a Trading Day) of any year listed in the Dividend
Adjustment Table below is equal to or greater than the Second Target
Price shown opposite that year in such table, then holders of shares of
2000 ESOP Preferred Stock will be entitled to receive a cash dividend
for the immediately following twelve month period equal to $125.00 per
share (the "Second Adjusted Dividend").
(3) If the Current Market Price of one share of
Common Stock on November 30 (or next preceding Trading Day if November
30 is not a Trading Day) of any year listed in the Dividend Adjustment
Table below is less than the First Target Price shown opposite that
year in such table, then the holders of shares of 2000 ESOP Preferred
Stock will be entitled to receive a cash dividend for the immediately
following twelve month period equal to the Base Dividend.
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DIVIDEND ADJUSTMENT TABLE
CLOSING PRICE ON 11/30 FIRST TARGET PRICE SECOND TARGET PRICE
---------------------- ------------------ -------------------
2001 47.097 49.842
2002 52.278 58.814
2003 58.028 69.400
2004 64.411 81.892
2005 71.496 96.633
2006 79.361 114.027
2007 88.091 134.552
2008 97.781 158.771
2009 108.537 187.350
2010 120.476 221.073
(4) As an example of the adjustments described in
subparagraphs (1) through (3) above, if on November 30, 2003, the
Current Market Price of one share of Common Stock is $65.00, then the
cash dividend payable for the immediately following twelve month period
per share of 2000 ESOP Preferred Stock would equal $120.00, with the
first quarterly payment of such $120.00 dividend to be made on March 1,
2004. If on November 30, 2004, the Current Market Price of one share
of Common Stock is $85.00, then the cash dividend payable for the
immediately following twelve month period per share of 2000 ESOP
Preferred Stock would equal $125.00, with the first quarterly payment
of such $125.00 dividend to be made on March 1, 2005. If on November
30, 2005, the Current Market Price of one share of Common Stock is
$65.00, then the cash dividend payable for the immediately following
twelve month period per share of 2000 ESOP Preferred Stock would equal
$115.00, with the first quarterly payment of such $115.00 dividend to
be made on March 1, 2006.
(5) For purposes of this Section 3, the terms "First
Adjusted Dividend" and "Second Adjusted Dividend" are sometimes
referred to as an "Adjusted Dividend;" the term "Current Market Price"
shall have the meaning given to it in Section 4(c)(iv); and the term
"Trading Day" shall have the meaning given to it in Section 4(c)(vi).
(iv) If one share of Common Stock in any year listed in
the Dividend Adjustment Table shall be changed into a different number of
shares or a different class of shares by reason of any reclassification,
recapitalization, split-up, combination, exchange of shares or readjustment,
or if a stock dividend thereon shall be declared with a record date within
such period, then the First Target Price and the Second Target Price listed
in such table for that year and each subsequent year will be appropriately
and proportionately adjusted.
(v) Dividends payable on shares of the 2000 ESOP Preferred
Stock (whether such dividends are equal to the Base Dividend or to an
Adjusted Dividend) shall be payable quarterly on March 1, June 1, September
1, and December 1
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of each year, commencing June 1, 2000. Dividends on shares of the 2000 ESOP
Preferred Stock will be cumulative from the date of initial issuance of such
shares of 2000 ESOP Preferred Stock. Dividends will be payable, in arrears,
to holders of record as they appear on the stock books of the Company on such
record dates, not more than 30 days nor less than 15 days preceding the
payment dates thereof, as shall be fixed by the Board or a duly authorized
committee thereof. The amount of dividends payable per share for each
dividend period shall be computed by dividing by four the Base Dividend or
the Adjusted Dividend, whichever is then applicable. The amount of dividends
payable for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of actual days elapsed in a
360-day year of twelve 30-day months.
(b)(i) No full dividends shall be declared or paid or set apart
for payment on any stock of the Company ranking, as to dividends, on a parity
with or junior to the 2000 ESOP Preferred Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof has been set apart for
such payment on shares of 2000 ESOP Preferred Stock for all dividend payment
periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid,
upon the shares of 2000 ESOP Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with 2000 ESOP Preferred
Stock, all dividends declared upon shares of 2000 ESOP Preferred Stock and
any other series of Preferred Stock ranking on a parity as to dividends with
2000 ESOP Preferred Stock shall be declared pro rata so that the amount of
dividends declared per share on 2000 ESOP Preferred Stock and such other
series of Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the shares of 2000 ESOP Preferred
Stock and such other series of Preferred Stock bear to each other. Holders
of shares of 2000 ESOP Preferred Stock shall not be entitled to any dividend,
whether payable in cash, property, or stock, in excess of full cumulative
dividends, as herein provided, on 2000 ESOP Preferred Stock. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on 2000 ESOP Preferred Stock which may be in arrears.
(ii) So long as any shares of 2000 ESOP Preferred Stock
are outstanding, no dividend (other than dividends or distributions paid in
shares of, or options, warrants, or rights to subscribe for or purchase
shares of, Common Stock or any other stock ranking junior to 2000 ESOP
Preferred Stock as to dividends or upon liquidation and other than as
provided in paragraph (b)(i) of this Section 3) shall be declared or paid or
set aside for payment or other distribution declared or made upon Common
Stock or any other capital stock of the Company ranking junior to or on a
parity with 2000 ESOP Preferred Stock as to dividends or upon liquidation,
nor shall any Common Stock or any other capital stock of the Company ranking
junior to or on a parity with 2000 ESOP Preferred Stock as to dividends or
upon liquidation be redeemed, purchased, or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for stock of the Company ranking junior to 2000
ESOP Preferred Stock as to dividends or upon liquidation), unless, in each
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case, the full cumulative dividends on all outstanding shares of 2000 ESOP
Preferred Stock shall have been paid or declared and set aside for payment of
the then current dividend payment period and all past dividend payment
periods.
4. CONVERSION. Shares of 2000 ESOP Preferred Stock are convertible
from time to time hereafter pursuant to the provisions of paragraphs (a) or
(b) of this Section 4 into that number of shares of Common Stock determined
by dividing the stated value of each share of 2000 ESOP Preferred Stock by
the then applicable Conversion Price, (as determined in accordance with the
provisions of paragraph (c)(iii) of this Section 4), as follows:
(a) Each share of 2000 ESOP Preferred Stock released from the
unallocated reserve of the Plan in accordance with the terms thereof shall be
automatically converted, without any further action by the Company or the
holder thereof, as of the date such release occurs (the "Release Date"), into
fully paid and nonassessable shares of Common Stock at the then applicable
Conversion Price for the 2000 ESOP Preferred Stock provided for in paragraph
(c) of this Section 4.
(b) Subject to and upon compliance with the provisions of this
Section 4, a holder of 2000 ESOP Preferred Stock shall be entitled at any
time, prior to the close of business on the date fixed for redemption of such
shares pursuant to Sections 5 or 6 hereof, to cause any or all of the shares
of 2000 ESOP Preferred Stock held by such holder to be converted into fully
paid and nonassessable shares of Common Stock at the then applicable
Conversion Price for 2000 ESOP Preferred Stock provided for in paragraph (c)
of this Section 4.
(c) For purposes of these resolutions, the following terms shall
have the meanings set forth below:
(i) The "Average Current Market Price" per share of Common
Stock on any date shall be deemed to be the average of the Current Market
Price for one share of Common Stock for the twenty (20) consecutive Trading
Days ending on the Trading Day occurring prior to the date the "Purchase
Offer" is made (as that term is defined in Section 6(d) hereof).
(ii) A "Business Day" means each day that is not a
Saturday, Sunday, or a day on which state or federally chartered banking
institutions in the State of New York are not required to be open.
(iii) (A) For purposes of a mandatory conversion of
shares of 2000 ESOP Preferred Stock into shares of Common Stock pursuant to
the provisions of paragraph (a) of this Section 4, the "Conversion Price" for
such shares of 2000 ESOP Preferred Stock shall be the Current Market Price of
one share of Common Stock on the relevant Release Date.
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(B) For purposes of an optional conversion of shares
of 2000 ESOP Preferred Stock into shares of Common Stock pursuant to the
provisions of paragraph (b) of this Section 4, the "Conversion Price" for
such shares of 2000 ESOP Preferred Stock shall be the Current Market Price of
one share of Common Stock on the date the Conversion Notice (as that term is
defined in paragraph (d) of this Section 4) is received by the Company, by
the transfer agent for the 2000 ESOP Preferred Stock or by any agent for
conversion of the 2000 ESOP Preferred Stock designated as such pursuant to
paragraph (d) of this Section 4.
(C) For purposes of a conversion of shares of 2000
ESOP Preferred Stock into shares of Common Stock in connection with a
"Purchase Offer" (as defined in Section 6(d) hereof), the "Conversion Price"
for such shares of 2000 ESOP Preferred Stock shall be the Average Current
Market Price of one share of Common Stock.
Each share of 2000 ESOP Preferred Stock shall be valued at its stated value
of $1,000.00 for purposes of computing, based on the applicable Conversion
Price, the number of shares of Common Stock into which the shares of 2000
ESOP Preferred Stock will be converted.
(iv) The "Current Market Price" of publicly traded shares
of Common Stock or any other class of capital stock or other security of the
Company or any other issuer for any day shall mean the reported last sale
price, regular way, or, in case no sale takes place on such day, the average
of the reported closing bid and asked prices, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if the Common
Stock is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if the Common Stock is not quoted on such National Market
System, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices for
the Common Stock on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day as furnished by
any New York Stock Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Board or a committee thereof
or, if no such quotations are available, the fair market value of the Common
Stock as determined by a New York Stock Exchange member firm regularly making
a market in the Common Stock selected for such purpose by the Board or a
committee thereof.
(v) "Common Stock" shall mean the Common Stock of the
Company as the same exists at the date of this Certificate of Designations or
as such stock may be constituted from time to time.
(vi) "Trading Day" with respect to Common Stock means (x)
if the Common Stock is listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New York
Stock Exchange or
11
such other national securities exchange is open for business or (y) if the
Common Stock is quoted on the National Market System of NASDAQ, a day on
which trades may be made on such National Market System or (z) otherwise, any
Business Day.
(d) In connection with any conversion of 2000 ESOP Preferred
Stock pursuant to this Section 4, a written notice of conversion (the
"Conversion Notice") shall be delivered to the Company at its principal
executive office or the offices of the transfer agent for the 2000 ESOP
Preferred Stock or such office or offices in the continental United States of
an agent for conversion as may from time to time be designated by notice to
the holders of the 2000 ESOP Preferred Stock by the Company or the transfer
agent for the 2000 ESOP Preferred Stock, which notice shall be accompanied by
(a) in the case of certificated 2000 ESOP Preferred Stock, the certificate or
certificates representing the shares of 2000 ESOP Preferred Stock being
converted pursuant to this Section 4, duly assigned or endorsed for transfer
to the Company (or accompanied by duly executed stock powers relating
thereto) or (b) in the case of uncertificated 2000 ESOP Preferred Stock, duly
executed assignment and transfer documents for the shares of 2000 ESOP
Preferred Stock being converted pursuant to this Section 4. Each Conversion
Notice shall specify (i)(y) in the case of a mandatory conversion pursuant to
paragraph (a) of this Section 4, the number of shares of 2000 ESOP Preferred
Stock released from the unallocated reserve of the Plan on the Release Date
or (z) in the case of an optional conversion pursuant to paragraph (b) of
this Section 4, the number of shares of 2000 ESOP Preferred Stock being
converted, and (ii) in connection with any conversion hereunder, (x) the name
or names in which such holder wishes the certificate or certificates for
Common Stock and, in the case of certificated 2000 ESOP Preferred Stock, for
any shares of 2000 ESOP Preferred Stock not to be so converted to be issued,
(y) the address to which such holder wishes delivery to be made of such new
certificates to be issued upon such conversion, and (z) such other
information as the Company or its agents may reasonably request.
(e) Upon delivery to the Company or the transfer agent for the
2000 ESOP Preferred Stock of the Conversion Notice and all other
documentation and certificates required to effect the conversion, as provided
in paragraph (d) of this Section 4, the Company shall issue and send by hand
delivery, by courier or by first-class mail (postage prepaid) to the holder
thereof or to such holder's designee, at the address designated by such
holder, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled upon conversion. If there shall
have been surrendered a certificate or certificates representing shares of
2000 ESOP Preferred Stock only part of which are to be converted, the Company
shall issue and deliver to such holder or such holder's designee, in the
manner set forth in the preceding sentence, a new certificate or certificates
representing the number of shares of 2000 ESOP Preferred Stock which shall
not have been converted.
(f) The issuance by the Company of shares of Common Stock upon a
conversion of shares of 2000 ESOP Preferred Stock into shares of Common Stock
made pursuant to this Section 4 shall be effective (i) in the case of a
mandatory conversion of shares of 2000 ESOP Preferred Stock pursuant to
paragraph (a) of this Section 4, as of the Release Date; and (ii) in the case
of an optional conversion of such shares pursuant to
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paragraph (b) of this Section 4, as of the earlier of (A) the delivery to
such holder or such holder's designee of the certificates representing the
shares of Common Stock issued upon conversion thereof or (B) the commencement
of business on the second Business Day after the delivery to the Company or
the transfer agent for the 2000 ESOP Preferred Stock of the Conversion Notice
and all other documentation and certificates required to effect the
conversion, as provided in paragraph (d) of this Section 4. On and after the
effective date of conversion, the person or persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for all purposes
as the record holder or holders of such shares of Common Stock, but no
allowance or adjustment shall be made in respect of dividends payable to
holders of Common Stock in respect of any period prior to such effective
date. The Company shall not be obligated to pay any dividends which shall
have accrued or have been declared and shall be payable to holders of shares
of 2000 ESOP Preferred Stock if the date on which such dividends are paid is
on or after the effective date of conversion of such shares.
(g) The Company shall not be obligated to deliver to holders of
2000 ESOP Preferred Stock any fractional share or shares of Common Stock
issuable upon any conversion of such shares of 2000 ESOP Preferred Stock, but
in lieu thereof may make a cash payment in respect thereof in any manner
permitted by law.
(h) The Company shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for issuance upon the
conversion of shares of 2000 ESOP Preferred Stock as herein provided, free
from any preemptive rights, such number of shares of Common Stock as shall
from time to time be issuable upon the conversion of all the shares of 2000
ESOP Preferred Stock then outstanding.
(i) The Company will use its best efforts to cause the listing
of the shares of Common Stock required to be delivered upon conversion of the
2000 ESOP Preferred Stock prior to distribution to Plan participants on the
national securities exchange, if any, upon which the outstanding Common Stock
is listed at the time of such delivery.
(j) The Company will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of shares of Common Stock on conversions of the 2000 ESOP Preferred Stock
pursuant hereto; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock in a name other than that of the
holder of the 2000 ESOP Preferred Stock to be converted and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid.
(k) Upon the issuance of shares of Common Stock following
conversion of shares of 2000 ESOP Preferred Stock as contemplated by this
Section 4, the Company shall, to the extent provided for, and subject to the
limitations set forth in the Rights Agreement hereafter described, issue
together with each such share of Common Stock one right to purchase Series C
Junior Participating Preferred Stock of the Company (or other securities in
lieu thereof) pursuant to the Rights Agreement dated as of October 21,
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1998 between the Company and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, as such agreement may from time to time be amended, or any
rights issued to holders of Common Stock of the Company in addition thereto
or in replacement therefor, whether or not such rights shall be exercisable
at such time, but only if such rights are issued and outstanding and held by
other holders of Common Stock of the Company at such time and have not
expired.
5. REDEMPTION AT THE OPTION OF THE COMPANY. (a) The 2000 ESOP
Preferred Stock shall be redeemable, in whole or in part, at the option of
the Company at any time, at a redemption price per share of 2000 ESOP
Preferred Stock equal to the higher of (x) $1,000.00 per share, plus an
amount equal to all accrued and unpaid dividends thereon to the date fixed
for redemption, and (y) the Fair Market Value (as that term is defined in
paragraph (d) of this Section 5) per share of 2000 ESOP Preferred Stock on
the date fixed for redemption. Payment of the redemption price shall be made
by the Company in cash or shares of Common Stock, or a combination thereof,
as permitted by paragraph (c) of this Section 5. From and after the date
fixed for redemption, dividends on shares of 2000 ESOP Preferred Stock called
for redemption will cease to accrue and all rights in respect of such shares
of the Company shall cease, except the right to receive the redemption price.
Upon payment of the redemption price, such shares shall be deemed to have
been transferred to the Company, to be retired as provided in paragraph (a)
of Section 1. If the full cumulative dividends have not been paid, or
contemporaneously declared and set aside for payment, on all outstanding
shares of 2000 ESOP Preferred Stock, the Company may not redeem fewer than
all the outstanding shares of 2000 ESOP Preferred Stock pursuant to this
Section 5.
(b) Unless otherwise required by law, notice of any redemption
pursuant to this Section 5 will be sent to the holders of 2000 ESOP Preferred
Stock at the address shown on the books of the Company or any transfer agent
for the 2000 ESOP Preferred Stock by hand delivery, by courier, by standard
form of telecommunication or by first-class mail (postage prepaid) delivered,
sent or mailed, as the case may be, not less than twenty (20) days nor more
than sixty (60) days prior to the redemption date. Each such notice shall
state: (i) the redemption date; (ii) the total number of shares of the 2000
ESOP Preferred Stock to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (iii) the redemption price; (iv) whether the redemption price
shall be paid in cash or in shares of Common Stock, or in a combination of
such Common Stock and cash; (v) in the case of certificated 2000 ESOP
Preferred Stock the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; (vi) that dividends on
the shares to be redeemed will cease to accrue on such redemption date; and
(vii) the conversion rights of the shares to be redeemed, the period within
which conversion rights may be exercised and the manner in which the number
of shares of Common Stock issuable upon conversion of a share of 2000 ESOP
Preferred Stock will be determined. The Company shall redeem shares so
called for redemption and not previously converted at the date fixed for
redemption and at the redemption price set forth in this Section 5, provided
that, in the case of certificated 2000 ESOP Preferred Stock, the Company
shall not be obligated to pay the redemption price until the certificates for
the shares to be
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redeemed are surrendered (properly endorsed or assigned for transfer, if the
Board of Directors of the Company shall so require and the notice shall so
state).
(c) The Company, at its option, may make payment of the
redemption price required upon redemption of shares of 2000 ESOP Preferred
Stock in cash or in shares of Common Stock, or in a combination of such
Common Stock and cash, any such shares of Common Stock to be valued for such
purposes at their Fair Market Value (as defined in paragraph (d)(ii) of this
Section 5) or their Current Market Price, in either case as of the date fixed
for redemption of the 2000 ESOP Preferred Stock, whichever value will result
in the issuance of the greater number of shares of Common Stock to the holder
of the 2000 ESOP Preferred Stock then being redeemed.
(d) For purposes of these resolutions, the following terms shall
have the meanings set forth below:
(i) "Adjustment Period" shall mean the period of five (5)
consecutive Trading Days preceding the date as of which the Fair Market Value
of a security is to be determined.
(ii) "Fair Market Value" shall mean, as to shares of
Common Stock or any other class of capital stock or securities of the Company
or any other issue which are publicly traded, the average of the Current
Market Prices of such shares or securities for each day of the Adjustment
Period. The "Fair Market Value" of any security which is not publicly traded
(other than the 2000 ESOP Preferred Stock) or of any other property shall
mean the fair value thereof on the date as of which the Fair Market Value of
the security is to be determined, as determined by an independent investment
banking or appraisal firm experienced in the valuation of such securities or
property selected in good faith by the Board or a committee thereof. The
"Fair Market Value" of the 2000 ESOP Preferred Stock for purposes of
paragraph (a) of Section 5, and for purposes of paragraph (c) of Section 6
shall mean the fair market value thereof determined by an independent
appraiser, appointed by the Trustee of the Plan in accordance with the
provisions of the Plan, as of the date fixed for redemption of the 2000 ESOP
Preferred Stock (in the case of a redemption pursuant to Section 5) or as of
the date specified in paragraph (c) of Section 6 (in the case of a redemption
under that section). For purposes of determining the Fair Market Value of
the 2000 ESOP Preferred Stock, the independent appraiser shall assume (i)
that all dividends on the 2000 ESOP Preferred Stock would have been paid when
due, and (ii) that the mandatory conversion of shares of 2000 ESOP Preferred
Stock held by the Plan into shares of Common Stock pursuant to Section 4(a)
hereof would have occurred when and as payments of principal (together with
accrued interest thereon) would have been made by the Trustee of the Plan in
accordance with the terms of that certain 2000 ESOP Convertible Preferred
Stock Note Agreement dated on or about March 29, 2000 between the Company and
the Plan (including any amendments or modifications thereto).
6. CONSOLIDATION, MERGER, ETC. (a) If the Company consummates any
consolidation or merger or similar business combination, pursuant to which
the outstanding shares of Common Stock are by operation of law exchanged
solely for or
15
changed, reclassified or converted solely into stock of any successor or
resulting corporation (including the Company) that constitutes "qualifying
employer securities" with respect to a holder of 2000 ESOP Preferred Stock
within the meaning of Section 409(1) of the Internal Revenue Code of 1986, as
amended, and Section 407(d)(5) of the Employee Retirement Income Security Act
of 1974, as amended, or any successor provisions of law, and, if applicable,
for a cash payment in lieu of fractional shares, if any, the shares of 2000
ESOP Preferred Stock of such holder shall, in connection with such
consolidation, merger or similar business combination, be assumed by and
shall become Preferred Stock of such successor or resulting corporation,
having in respect of such corporation, insofar as possible, the same powers,
preferences and relative, participating, optional or other special rights
(including the redemption rights provided by Sections 5 and 6 hereof), and
the qualifications, limitations or restrictions thereon, that the 2000 ESOP
Preferred Stock had immediately prior to such transaction, subject to the
following:
(1) After such transaction each share of the 2000 ESOP Preferred
Stock shall be convertible, otherwise on the terms and conditions provided by
Section 4 hereof, into the number and kind of qualifying employer securities
so receivable by a holder of the number of shares of Common Stock into which
such shares of 2000 ESOP Preferred Stock could have been converted
immediately prior to such transaction.
(2) The Company shall not consummate any such merger,
consolidation or similar transaction unless all then outstanding shares of
2000 ESOP Preferred Stock shall be assumed and authorized by the successor or
resulting corporation as aforesaid.
(b) If the Company consummates any consolidation or merger or
similar business combination, pursuant to which the outstanding shares of
Common Stock are by operation of law exchanged for or changed, reclassified
or converted into other stock or securities or cash or any other property, or
any combination thereof, other than any such consideration which is
constituted solely of qualifying employer securities (as referred to in
paragraph (a) of this Section 6) and cash payments, if applicable, in lieu of
fractional shares, outstanding shares of 2000 ESOP Preferred Stock shall,
without any action on the part of the Company or any holder thereof (but
subject to paragraph (c) of this Section 6), be automatically converted by
virtue of such merger, consolidation or similar transaction immediately prior
to such consummation into the number of shares of Common Stock into which
such shares of 2000 ESOP Preferred Stock could have been converted at such
time so that each share of 2000 ESOP Preferred Stock shall, by virtue of such
transaction and on the same terms as apply to the holders of Common Stock, be
converted into or exchanged for the aggregate amount of stock, securities,
cash or other property (payable in like kind) receivable by a holder of the
number of shares of Common Stock into which such shares of 2000 ESOP
Preferred Stock could have been converted immediately prior to such
transaction. However, if by virtue of the structure of such transaction, a
holder of Common Stock is required to make an election with respect to the
nature and kind of consideration to be received in such transaction, which
election cannot practicably be made by the holders of the 2000 ESOP Preferred
Stock, then the shares of 2000 ESOP
16
Preferred Stock shall, by virtue of such transaction and on the same terms as
apply to the holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property (payable in
kind) receivable by a holder of the number of shares of Common Stock into
which such shares of 2000 ESOP Preferred Stock could have been converted
immediately prior to such transaction if such holder of Common Stock failed
to exercise any rights of election as to the kind or amount of stock,
securities, cash or other property receivable upon such transaction. If the
kind or amount of stock, securities, cash or other property receivable upon
such transaction is not the same for each non-electing share, then the kind
and amount of stock, securities, cash or other property receivable upon such
transaction for each non-electing share shall be the kind and amount so
receivable per share by a plurality of the non-electing shares.
(c) In the event the Company shall enter into any agreement
providing for any consolidation or merger or similar business combination
described in paragraph (b) of this Section 6 (a "Business Combination"), then
the Company shall as soon as practicable thereafter (and in any event at
least fifteen (15) Business Days before consummation of such transaction)
give notice of such agreement and the material terms thereof to each holder
of 2000 ESOP Preferred Stock and each such holder shall have the right to
elect, by written notice to the Company, to receive, upon consummation of
such transaction (if and when such transaction is consummated), from the
Company or the successor of the Company, in redemption and retirement of such
2000 ESOP Preferred Stock, a cash payment per share of 2000 ESOP Preferred
Stock equal to the higher of (x) $1,000.00, plus accrued and unpaid dividends
thereon to the date of consummation of such transaction or (y) the Fair
Market Value per share of 2000 ESOP Preferred Stock, as of the last Business
Day (as defined in paragraph (c) of Section 4 hereof) immediately preceding
the date the Business Combination is consummated. No such notice of
redemption shall be effective unless given to the Company prior to the close
of business on the last Business Day prior to consummation of such
transaction, unless the Company or the successor of the Company shall waive
such prior notice, but any notice of redemption so given prior to such time
may be withdrawn by notice of withdrawal given to the Company prior to the
close of business on the last Business Day prior to consummation of such
transaction.
(d) In the event that a Purchase Offer (as defined below) shall
have been made and shall be continuing, each holder of 2000 ESOP Preferred
Stock shall have the right to convert shares of 2000 ESOP Preferred Stock
into shares of Common Stock at the Conversion Price specified in Section
4(c)(iii)(C) hereof until the date the Purchase Offer is terminated,
including without limitation because the original Purchase Offer is withdrawn
or because the Purchase Offer has expired and is not renewed, upon notice of
such conversion given to the Company not later than the close of business on
the date the Purchase Offer terminates (the "Purchase Offer Conversion
Period"), unless the Company or any successor of the Company shall waive such
prior notice, but any notice of conversion so given may be withdrawn by
notice of withdrawal given to the Company prior to the end of the Purchase
Offer Conversion Period.
For purposes of this paragraph (d), the following terms shall
have the meanings set forth below:
17
(i) "Beneficial Ownership" shall have the meaning ascribed
to it in Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange
Act") and "person" shall have the meanings specified in Sections 3(a)(9) and
13(d)(3) of the Exchange Act.
(ii) A "Purchase Offer" shall have been made when any
person (other than the Company or any affiliate of the Company) shall have
"commenced" (as such term is defined in Rule 14d-2 under the Exchange Act) a
tender offer or exchange offer to purchase shares of Common Stock, such that,
upon consummation of such offer, such person would have Beneficial Ownership
(as defined herein) or the right to acquire Beneficial Ownership, of twenty
percent (20%) or more of the voting power of the Company.
7. LIQUIDATION RIGHTS. (a) Upon the dissolution, liquidation, or
winding up of the Company, the holders of the shares of 2000 ESOP Preferred
Stock shall be entitled to receive and to be paid out of the assets of the
Company available for distribution to its stockholders, before any payment or
distribution shall be made on the Common Stock or any other class of stock
ranking junior to 2000 ESOP Preferred Stock upon liquidation, the amount of
$1,000.00 per share, plus a sum equal to all dividends (whether or not earned
or declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(b) Neither the sale of all or substantially all the property
and assets of the Company, nor the merger or consolidation of the Company
into or with any other corporation, nor the merger or consolidation of any
other corporation into or with the Company shall be deemed to be a
dissolution, liquidation, or winding up, voluntary or involuntary, for the
purposes of this Section 7.
(c) After the payment to the holders of the shares of 2000 ESOP
Preferred Stock of the full preferential amounts provided for in this Section
7, the holders of 2000 ESOP Preferred Stock, as such, shall have no right or
claim to any of the remaining assets of the Company.
(d) In the event the assets of the Company available for
distribution to the holders of shares of 2000 ESOP Preferred Stock upon any
dissolution, liquidation, or winding up of the Company, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (a) of this Section 7, no such
distribution shall be made on account of any shares of any other series of
Preferred Stock or other capital stock of the Company ranking on a parity
with the shares of 2000 ESOP Preferred Stock upon such dissolution,
liquidation, or winding up unless proportionate distributive amounts shall be
paid on account of the shares of 2000 ESOP Preferred Stock, ratably, in
proportion to the full distributable amounts for which holders of all such
parity shares are respectively entitled upon such dissolution, liquidation,
or winding up.
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(e) Subject to the rights of the holders of the shares of any
series or class or classes of stock ranking on a parity with or prior to the
shares of 2000 ESOP Preferred Stock upon liquidation, dissolution, or winding
up, upon any liquidation, dissolution, or winding up of the Company, after
payment shall have been made in full to the holders of the shares of 2000
ESOP Preferred Stock as provided in this Section 7, but not prior thereto,
any other series or class or classes of stock ranking junior to the shares of
2000 ESOP Preferred Stock upon liquidation shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any
and all assets remaining to be paid or distributed, and the holders of the
shares of 2000 ESOP Preferred Stock shall not be entitled to share therein.
8. RANKING. For the purposes of these resolutions, any stock of any
series or class or classes of the Company shall be deemed to rank:
(a) prior to the shares of 2000 ESOP Preferred Stock, either as
to dividends or upon liquidation, if the holders of such series or class or
classes shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation, or winding up of the Company, as
the case may be, in preference or priority to the holders of shares of 2000
ESOP Preferred Stock;
(b) on a parity with shares of 2000 ESOP Preferred Stock, either
as to dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates, or redemption or liquidation prices per share, or
sinking fund provisions, if any, be different from those of 2000 ESOP
Preferred Stock, if the holders of such stock shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution,
liquidation, or winding up of the Company, as the case may be, in proportion
to their respective dividend rates or liquidation prices, without preference
or priority, one over the other, as between the holders of such stock and the
holders of shares of 2000 ESOP Preferred Stock; and
(c) junior to shares of 2000 ESOP Preferred Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of 2000 ESOP Preferred Stock shall be entitled to receipt
of dividends or of amounts distributable upon dissolution, liquidation, or
winding up of the Company, as the case may be, in preference or priority to
the holders of shares of such series or class or classes.
9. PRIORITY OF 2000 ESOP PREFERRED STOCK. The shares of 2000 ESOP
Preferred Stock will rank on a parity, both as to payment of dividends and
the distribution of assets upon liquidation, with the Company's ESOP
Cumulative Convertible Preferred Stock, its 1995 ESOP Cumulative Convertible
Preferred Stock, its 1996 ESOP Cumulative Convertible Preferred Stock, its
1997 ESOP Cumulative Convertible Preferred Stock, its 1998 ESOP Cumulative
Convertible Preferred Stock, its 1999 ESOP Cumulative Convertible Preferred
Stock, its Adjustable Cumulative Preferred Stock, Series B, and its
Fixed/Adjustable Rate Noncumulative Preferred Stock, Series H. The 2000 ESOP
Preferred Stock will rank prior, both as to payment of dividends and the
distribution of assets upon liquidation, to the Common Stock and the
Company's Series C Junior Participating Preferred Stock.
19
IN WITNESS WHEREOF, the Company has caused this Certificate of
Designations to be signed by Richard M. Kovacevich, its President, and
attested by Robert S. Singley, its Assistant Secretary, whereby such
President affirms, under penalties of perjury, that this Certificate of
Designations is the act and deed of the Company and that the facts stated
herein are true, this 27th day of March, 2000.
WELLS FARGO & COMPANY
By /s/ Richard M. Kovacevich
-------------------------
Richard M. Kovacevich
President
Attest:
/s/ Robert S. Singley
- ---------------------
Robert S. Singley
Assistant Secretary
[Filed with the Delaware Secretary of State's Office on March 28, 2000]
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