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