exv10wxby





Exhibit 10(b)

Amendment to Amended and Restated Wachovia Corporation 2003 Stock Incentive Plan



Effective February 24, 2009, the Amended and Restated Wachovia Corporation 2003 Stock Incentive
Plan is amended as follows:




     1. Section 3(f) of the Plan is amended in its entirety to read as follows:




     “Prior to January 1, 2009 and for purposes of all Awards granted under the Plan prior
to that date, “Board” means the Board of Directors of Wachovia. As of January 1, 2009,
“Board” means the Board of Directors of Wells Fargo, as successor by merger to Wachovia.”



     2. Section 3(i) of the Plan is amended in its entirety to read as follows:




     “Prior to January 1, 2009 and for purposes of all Awards granted under the Plan prior
to that date, “Committee” means the Management Resources & Compensation Committee of the
Board or such other committee as is appointed by the Board to administer the Plan. As of
January 1 2009, “Committee” means the Human Resources Committee of the Board or such other
committee as is appointed by the Board to administer the Plan.”



     3. Section 3(j) of the Plan is amended in its entirety to read as follows:




     “Prior to January 1, 2009 and for purposes of all Awards granted under the Plan prior
to that date, “Corporation” means (i) Wachovia and any entity that is directly or
indirectly controlled by Wachovia, or (ii) any entity in which Wachovia has a significant
equity interest, as determined by the Committee. As of January 1, 2009, “Corporation”
means (i) Wells Fargo and any entity that is directly or indirectly controlled by Wells
Fargo, or (ii) any entity in which Wells Fargo has a significant equity interest, as
determined by the Committee. Notwithstanding the immediately preceding sentence, for
purposes of determining the Employees of the Corporation eligible to receive an Option or
SAR pursuant to this Plan, “Corporation” shall mean Wells Fargo and any corporation or
other entity in a chain of corporations or other entities in which each corporation or
other entity has a controlling interest (within the meaning of U. S. Treasury Regulation
1.409A-1(b)(5)(iii)(E)(1)) in another corporation or other entity in the chain, beginning
with a corporation or other entity in which Wells Fargo has a controlling interest.”




 









 





     4. Section 3(l) of the Plan is amended in its entirety to read as follows:




     ““Disability”, with respect to an Employee, means having received long-term disability
benefits under the Corporation’s Long-Term Disability Plan (or successor thereto) for a
period of 12 consecutive months or, if an Employee is not a participant in such a Long-Term
Disability Plan, permanent disability as determined by the Corporation.”



     5. Section 3(o) of the Plan is amended in its entirety to read as follows:




     “Prior to February 24, 2009 and with respect to Awards granted (as of the Date of
Grant or valuation date, as applicable) or exercised (as of the date of exercise or
valuation date, as applicable) prior to that date, “Fair Market Value” means the closing
sales price of the Shares on the New York Stock Exchange Composite Tape on the valuation
date, or, if there were no sales on the valuation date, the closing sales price on the New
York Stock Exchange Composite Tape on the first trading day before such valuation date. As
of February 24, 2009 and with respect to any Awards granted prior to that date but
exercised by a Participant on or after that date (as of the date of exercise or valuation
date, as applicable), “Fair Market Value” means the closing sales price of the Shares on
the New York Stock Exchange on the valuation date, or, if there were no sales on the
valuation date, the closing sales price on the New York Stock Exchange on the first trading
day before such valuation date.”



     6. Section 3(ii) of the Plan is amended in its entirety to read as follows:




     ““Shares” means the common stock of Wells Fargo & Company, par value $1-2/3 per
share.”



     7. Section 3 of the Plan is amended to add the following new subsections:




     “(ll) “Affiliate” means any corporation of limited liability company, a majority of
the voting stock of membership interests of which is directly or indirectly owned by Wells
Fargo, and any partnership or joint venture designated by the Committee in which any such
corporation or limited liability company is a partner or joint venturer.




     (mm) “Date of Grant” means (i) with respect to an Option, the date on which the
Committee completes the corporate action necessary to create an offer of stock for sale to
an Employee under the terms and





 









 






conditions of, or a legally binding right constituting, the Option; and (ii) with
respect to an Award other than an Option, the date on which the Committee grants the Award.
With respect to any Award, the Committee may specify a future date on which the grant is
to be granted or become effective.




     (nn) “U.S. Treasury Regulation” means Title 26 of the United States Code of Federal
Regulations, as amended from time to time, and any successor or replacement thereof.




     (oo) “Wells Fargo” means Wells Fargo & Company, a Delaware corporation.”



     8. Section 5 of the Plan is amended to add the following clause to the end of the first
sentence.




     “; provided that, consistent with New York Stock Exchange requirements, no individuals
who were employed by Wells Fargo or any of its subsidiaries immediately prior to the merger
between Wells Fargo and Wachovia on December 31, 2008 shall be eligible to receive Awards
under the Plan.”



     9. Section 6(a) of the Plan is amended to add the following new sentence to the end thereof:




     “Consistent with the Agreement and Plan of Merger dated October 3, 2008 between Wells
Fargo and Wachovia, New York Stock Exchange requirements and the provisions of this Plan,
the number of Shares available for grant under this Plan after December 31, 2008 shall be
adjusted as provided in subsection (c) below to give effect to the 0.1991 exchange ratio
applied to shares of Wachovia common stock in connection with the merger between Wells
Fargo and Wachovia.”



     10. Section 7(a) of the Plan is amended to delete the phrase “date of grant” each place where
it appears and to substitute the defined term “Date of Grant”.



     11. The last sentence of Section 7(a) of the Plan is amended to delete the phrase “date of
its grant” and to substitute the phrase “of its Date of Grant”.



     12. Section 7(a)(v) of the Plan is further amended to add the following new sentence to the
end thereof:




     “No Options in the form of ISOs may be granted under the Plan on or after January 1,
2009 unless the Corporation has obtained the requisite shareholder approval under Section
422 of the Code.”




 









 





     13. Section 7(a) of the Plan is further amended to add the following new subsections to the
end thereof:




     “(vi) Modification. No modification (within the meaning of U.S. Treasury
Regulation 1.409A-1(b)(5)(v)(B)) shall be made with respect to any Option if such
modification would result in the Option constituting a deferral of compensation, and no
extension (within the meaning of U.S. Treasury Regulation 1.409A-1(b)(5)(v)(C)) shall be
made with respect to any Option if such extension would result in the Option having an
additional deferral feature from the Date of Grant, in each case without the Participant’s
consent.”



     14. Section 11 of the Plan is amended in its entirety to read as follows:



     “11. Payments and Payment Deferrals




     Payment of Awards may be in the form of cash, Shares, other Awards, or combinations
thereof as the Committee shall determine, and with such restrictions as it may impose. The
Committee may defer a Participant’s vesting of RSAs, Performance Stock Awards or Options.
Except with respect to Options or SARs, the Committee may also require or permit a
Participant to defer such Participant’s receipt or issuance of Shares from RSUs or
Performance Unit Awards or the settlement of Awards in cash under such rules and procedures
as it may establish under the Plan. Except with respect to Options or SARs, the Committee
also may, in its discretion, provide that deferred settlements of Awards include the
payment or crediting of earnings on deferred amounts. In addition, except with respect to
Options or SARs, the Committee may stipulate in an Award Agreement, either at the time of
grant or by subsequent amendment, that a payment or portion of a payment of an Award be
delayed in the event that Section 162(m) of the Code (or any successor or similar provision
of the Code affecting tax deductibility) would disallow a tax deduction by the Corporation
for all or a portion of such payment. The period of any such delay in payment shall be
until the payment, or portion thereof, is tax deductible, or such earlier date as the
Committee shall determine.”



     15. This Amendment is effective as of February 24, 2009. Except as specifically provided to
the contrary herein, any Awards granted under the Plan prior to the effective date of this
Amendment shall continue in accordance with their original terms.



     16. Except as modified by this Amendment, all provisions of the Plan shall continue on in
full force and effect.