EXHIBIT 3
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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2001 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 12, 2001, 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 12, 2001, 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:
2001 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 "2001 ESOP Cumulative Convertible
Preferred Stock" (hereinafter referred to as the "2001 ESOP Preferred Stock")
and the number of authorized shares constituting the 2001 ESOP Preferred Stock
is 192,000, based on an offering price for the 2001 ESOP Preferred Stock of
$1,077.50 per share. Each share of 2001 ESOP Preferred Stock shall have a stated
value of $1,000.00 per share. The number of authorized shares of 2001 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 2001 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 2001 ESOP Preferred Stock shall not be increased. All
shares of the 2001 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 2001 ESOP Preferred
Stock.
(b) Shares of 2001 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 2001 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 2001 ESOP Preferred Stock to any person other
than any successor trustee under the Plan, the shares of 2001 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 2001
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 2001 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 2001 ESOP Preferred Stock shall be so converted. In the event of
such a conversion, the transferee of the shares of 2001 ESOP Preferred Stock
shall be treated for all purposes as the record holder of the shares of Common
Stock into which such shares of 2001 ESOP Preferred Stock have been
automatically converted as of the date of such transfer. Shares of 2001 ESOP
Preferred Stock may be certificated or uncertificated, at the Company's option.
Certificates representing shares of 2001 ESOP Preferred Stock shall bear a
legend to reflect the foregoing provisions. In the case of uncertificated 2001
ESOP Preferred Stock, the transfer agent for the 2001 ESOP Preferred Stock shall
note the foregoing provisions on each 2001 ESOP Preferred Stock book entry
account. The Company may require that, as a condition to transferring record
ownership of any uncertificated 2001 ESOP Preferred Stock, the proposed
transferee acknowledge in writing that the shares of 2001 ESOP Preferred Stock
are subject to the foregoing provisions. Notwithstanding the foregoing
provisions of this paragraph (b) of Section 1, shares of 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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
2001 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 2001 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 2001 ESOP Preferred Stock shall have
been paid in full, at which time such right with respect to such shares of 2001
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 2001 ESOP Preferred Stock remain
outstanding, the consent of the holders of the outstanding shares of 2001 ESOP
Preferred Stock and outstanding shares of all other series of Preferred Stock
ranking on a parity with such shares of 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 $105.00 (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, 2002 and on each December 1 thereafter until December 1, 2011,
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 2001 ESOP Preferred Stock will be
entitled to receive a cash dividend for the immediately following
twelve month period equal to $110.00 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
2001 ESOP Preferred Stock will be entitled to receive a cash dividend
for the immediately following twelve month period equal to $115.00 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 2001
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
---------------------- ------------------ -------------------
2002 $60.556 $64.130
2003 66.309 74.712
2004 72.608 87.039
2005 79.506 101.401
2006 87.059 118.132
2007 95.330 137.624
2008 104.386 160.332
2009 114.303 186.786
2010 125.161 217.606
2011 137.052 253.511
(4) As an example of the adjustments
described in subparagraphs (1) through (3) above, if on November 30,
2004, the Current Market Price of one share of Common Stock is $80.00,
then the cash dividend payable for the immediately following twelve
month period per share of 2001 ESOP Preferred Stock would equal
$110.00, with the first quarterly payment of such $110.00 dividend to
be made on March 1, 2005. If on November 30, 2005, the Current Market
Price of one share of Common Stock is $110.00, then the cash dividend
payable for the immediately following twelve month period per share of
2001 ESOP Preferred Stock would equal $115.00, with the first quarterly
payment of such $115.00 dividend to be made on March 1, 2006. If on
November 30, 2006, the Current Market Price of one share of Common
Stock is $80.00, then the cash dividend payable for the immediately
following twelve month period per share of 2001 ESOP Preferred Stock
would equal $105.00, with the first quarterly payment of such $105.00
dividend to be made on March 1, 2007.
(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).
(iii) 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.
(iv) Dividends payable on shares of the 2001 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, 2001. Dividends on shares of the 2001 ESOP
Preferred Stock will be cumulative from the date of initial issuance of such
shares of 2001 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 2001 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 2001 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
2001 ESOP Preferred Stock and any other series of Preferred Stock ranking on a
parity as to dividends with 2001 ESOP Preferred Stock, all dividends declared
upon shares of 2001 ESOP Preferred Stock and any other series of Preferred Stock
ranking on a parity as to dividends with 2001 ESOP Preferred Stock shall be
declared pro rata so that the amount of dividends declared per share on 2001
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 2001 ESOP Preferred Stock and such other series of Preferred Stock bear to
each other. Holders of shares of 2001 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 2001 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 2001 ESOP Preferred Stock which may be in
arrears.
(ii) So long as any shares of 2001 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 2001
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 2001 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 2001 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 2001
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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001
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
2001 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 2001 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 2001 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 2001 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 2001 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 2001 ESOP Preferred Stock or by any agent for conversion
of the 2001 ESOP Preferred Stock designated as such pursuant to paragraph (d) of
this Section 4.
(C) For purposes of a conversion of shares
of 2001 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 2001 ESOP Preferred Stock shall be the Average Current Market
Price of one share of Common Stock.
Each share of 2001 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 2001 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
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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 2001 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 2001 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 2001 ESOP Preferred Stock by the Company or the transfer agent
for the 2001 ESOP Preferred Stock, which notice shall be accompanied by (a) in
the case of certificated 2001 ESOP Preferred Stock, the certificate or
certificates representing the shares of 2001 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) and
(b) in the case of uncertificated 2001 ESOP Preferred Stock, duly executed
assignment and transfer documents for the shares of 2001 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 2001 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 2001 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
2001 ESOP Preferred Stock, for any shares of 2001 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
2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 ESOP Preferred Stock any fractional share or shares of Common Stock
issuable upon any conversion of such shares of 2001 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 2001 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 2001 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
2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001
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 2001 ESOP Preferred Stock, the Company may not redeem
fewer than all the outstanding shares of 2001 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 2001 ESOP Preferred
Stock at the address shown on the books of the Company or any transfer agent for
the 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 ESOP Preferred Stock, whichever value will result in the issuance of
the greater number of shares of Common Stock to the holder of the 2001 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
2001 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 2001
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 2001 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 2001 ESOP Preferred Stock, the independent appraiser shall
assume (i) that all dividends on the 2001 ESOP Preferred Stock would have been
paid when due, and (ii) that the mandatory conversion of shares of 2001 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 2001 ESOP Convertible Preferred Stock
Note Agreement dated on or about March 14, 2001 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 2001 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 2001 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 2001 ESOP Preferred Stock had immediately prior
to such transaction, subject to the following:
(1) After such transaction each share of the 2001
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 2001 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 2001 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 2001 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 2001 ESOP Preferred Stock could
have been converted at such time so that each share of 2001 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
2001 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 2001 ESOP Preferred
Stock, then the shares of 2001 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 2001 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 2001 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 2001 ESOP Preferred Stock, a cash
payment per share of 2001 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 2001
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 2001 ESOP Preferred
Stock shall have the right to convert shares of 2001 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 2001 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 2001 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 2001
ESOP Preferred Stock of the full preferential amounts provided for in this
Section 7, the holders of 2001 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 2001 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 2001 ESOP Preferred Stock upon such dissolution, liquidation, or
winding up unless proportionate distributive amounts shall be paid on account of
the shares of 2001 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 2001 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 2001 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 2001 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 2001 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 2001 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 2001 ESOP
Preferred Stock;
(b) on a parity with shares of 2001 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 2001 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
2001 ESOP Preferred Stock; and
(c) junior to shares of 2001 ESOP Preferred Stock, either as
to dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of 2001 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 2001 ESOP PREFERRED STOCK. The shares of 2001 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 2000
ESOP Cumulative Convertible Preferred Stock, its Adjustable Cumulative Preferred
Stock, Series B, and its Fixed/Adjustable Rate Noncumulative Preferred Stock,
Series H. The 2001 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 12th day of
March, 2001.
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 12, 2001]
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