EX-4.3






Exhibit 4.3




WELLS FARGO & COMPANY




 






CERTIFICATE OF DESIGNATIONS




Pursuant to Section 151(g) of the

General Corporation Law

of the State of Delaware




 






CLASS A PREFERRED STOCK, SERIES H

(Without Par Value)

 






     WELLS FARGO & COMPANY, a corporation organized and existing under the laws of the State of
Delaware (the “Corporation”), HEREBY CERTIFIES that, pursuant to authority conferred upon the Board
of Directors of the Corporation (the “Board of Directors”) by the provisions of the Restated
Certificate of Incorporation of the Corporation, as amended, which authorizes the issuance of not
more than 20,000,000 shares of Preferred Stock, without par value, and pursuant to authority
conferred upon the Securities Committee of the Board of Directors (the “Committee”) in accordance
with Section 141(c) of the General Corporation Law of the State of Delaware (the “General
Corporation Law”), the following resolutions were duly adopted by the Committee pursuant to the
written consent of the Committee duly adopted on [•], 2008, in accordance with Section 141(f) of
the General Corporation Law:



     RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated October 2, 2008, the provisions of the Restated
Certificate of Incorporation, the By-laws of the Corporation and applicable law, a series of
Preferred Stock, no par value, of the Corporation be and hereby is created, and that the
designation and number of shares of such series, and the voting and other powers, designations,
preferences and relative, participating, optional or other rights, and the qualifications,
limitations and restrictions thereof, of the shares of such series, are as follows:



     1. Designation. The shares of such series of Preferred Stock shall be designated
Class A Preferred Stock, Series H, with no par value and with a liquidation preference of
$20,000.00 per share (hereinafter referred to as the “Series H Preferred Stock”), and the number of
shares constituting such series shall be 50,000, which number may be increased or decreased (but
not below the number of shares then outstanding) from time to time by the Board of Directors of the
Corporation. The Series H Preferred Stock shall rank prior to the common stock of the Corporation,
$1-2/3 par value per share (the “Common Stock”), and on a parity with each series of the
Corporation’s Parity Stock with respect to the payment of dividends and the distribution of assets
in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation as expressly provided for herein.



     2. Defined Terms. As used in this Certificate of Designations, the following terms
have the meanings specified below:



 









 






     “Affiliate” of any specified Person shall mean (i) any other Person which, directly or
indirectly, is in Control of, is controlled by or is under common Control with such
specified Person, or (ii) any other Person who is a director or executive officer (A) of
such specified Person, (B) of any subsidiary of such specified Person, or (C) of any Person
described in clause (i) above.




     “Applicable Rate” means, with respect to distributions on each Dividend Period, (i) a
rate per annum equal to Three-Month LIBOR plus 1.83%, or (ii) upon the occurrence of an
initial Fixed Rate Event and thereafter, a fixed rate equal to the Assigned Fixed Rate.




     “Assigned Fixed Rate” means the fixed rate equal to the Applicable Rate on the date of
the occurrence of the initial Fixed Rate Event.




     “Business Day” means any day other than a Saturday, a Sunday or a day on which banks
located in the City of New York, New York or Charlotte, North Carolina generally are
authorized or required by law or regulation to close.




     “Common Stock” shall have the meaning set forth in Section 1.




     “Conditional Exchange” shall mean the exchange of one Depositary Share for each share
of WPFC Series B Preferred Securities following the occurrence of a Supervisory Event.




     “Control” means the power, direct or indirect, to direct or cause the direction of the
management and policies of any Person whether by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.




     “Corporation” means Wells Fargo & Company, a Delaware corporation, together with its
successors and assigns.




     “Depositary Company” shall have the meaning set forth in Section 5(c).




     “Depositary Share” means a depositary share representing a one-eight hundredth interest
in one share of Series H Preferred Stock.




     “Dividend Payment” shall have the meaning set forth in Section 3(a).




     “Dividend Payment Date” shall have the meaning set forth in Section 3(a).




     “Dividend Period” shall have the meaning set forth in Section 3(a).




     “Dividend Record Date” shall have the meaning set forth in Section 3(a).




     “Federal Reserve Board” means the United States Board of Governors of the Federal
Reserve System.



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     “Fixed Rate Event” means any Transfer with respect to all or a portion of the WPFC
Series B Preferred Securities, subsequent to the initial issuance of the WPFC Series B
Preferred Securities, through an initial public offering, private placement or otherwise, to
any Person who is not an Affiliate of the Corporation.




     “Initial Dividend Period” shall have the meaning set forth in Section 3(a).




     “Junior Stock” means the Common Stock and all other classes and series of securities of
the Corporation that rank below the Series H Preferred Stock as to dividend rights and
rights upon liquidation, winding up, or dissolution.




     “LIBOR Business Day” means any day on which commercial banks and foreign exchange
markets settle payments and are open for general business (including dealings in foreign
exchange and foreign currency deposits) in London and New York.




     “LIBOR Determination Date” means, as to each Dividend Period, commencing with the
Initial Dividend Period, the date that is two LIBOR Business Days prior to the first day of
such Dividend Period.




     “OCC” means the United States Office of the Comptroller of the Currency.




     “Parity Stock” means any outstanding class or series of Preferred Stock of the
Corporation ranking, in accordance to its terms, as to dividends and upon voluntary or
involuntary liquidation, dissolution or winding-up of affairs of the Corporation on parity
with the Series H Preferred Stock.




     “Person” means an individual, corporation, partnership, estate, trust (or portion
thereof), association, private foundation, joint stock company or other entity or any
government or agency or political subdivision thereof and also includes a group as that term
is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.




     “Preferred Stock” means the Corporation’s preferred stock, no par value, of which
20,000,000 shares are authorized as of the date hereof.




     “Redemption Date” shall have the meaning set forth in Section 5(c).




     “Redemption Price” shall have the meaning set forth in Section 5(a).




     “Regulatory Capital Event” means a determination by the Corporation, based on the
receipt by the Corporation of an opinion or letter of counsel, rendered by a law firm
experienced in such matters, in form and substance satisfactory to the Corporation, which
states that there is a significant risk that the Series H Preferred Stock will no longer
constitute Tier 1 capital of the Corporation for purposes of the capital adequacy
regulations or guidelines or policies of the Federal Reserve Board, or its successor, as the
Corporation’s primary Federal banking regulator, as a result of (i) any amendment to,
clarification of, or change in applicable laws or related regulations, guidelines, policies
or official interpretations thereof, or (ii) any official administrative pronouncement or



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judicial decision interpreting or applying such laws or related regulations,
guidelines, policies or official interpretations thereof.




     “Series H Preferred Stock” shall have the meaning set forth in Section 1.




     “Supervisory Event” means the occurrence of one of the following: (i) Wachovia Bank
becomes “undercapitalized” under the OCC’s prompt corrective action regulations,
(ii) Wachovia Bank is placed into conservatorship or receivership, or (iii) the OCC, in its
sole discretion, anticipates Wachovia Bank becoming “undercapitalized” in the near term or
takes supervisory action that limits the payment of dividends by WPFC and in connection
therewith the OCC directs an exchange of the WPFC Series B Preferred Securities for the
Series H Preferred Stock.




     “Three-Month LIBOR” means, with respect to any LIBOR Determination Date, a rate
determined on the basis of the offered rates for three-month U.S. dollar deposits of not
less than a principal amount equal to that which is representative for a single transaction
in such market at such time, commencing on the second LIBOR Business Day immediately
following such LIBOR Determination Date, which appears on US LIBOR Telerate Page 3750 as of
approximately 11:00 a.m., London time, on such LIBOR Determination Date.




     If on any LIBOR Determination Date no rate appears on US LIBOR Telerate Page 3750 as of
approximately 11:00 a.m., London time, the Corporation shall on such LIBOR Determination
Date require four major reference banks in the London interbank market selected by the
Corporation to provide the Corporation with a quotation of the rate at which three-month
deposits in U.S. dollars, commencing on the second LIBOR Business Day immediately following
such LIBOR Determination Date, are offered by them to prime banks in the London interbank
market as of approximately 11:00 a.m., London time, on such LIBOR Determination Date and in
a principal amount equal to that which is representative for a single transaction in such
market at such time. If at least two such quotations are provided, Three-Month LIBOR for
such LIBOR Determination Date will be the arithmetic mean of such quotations as calculated
by the Corporation. If fewer than two quotations are provided, Three-Month LIBOR for such
LIBOR Determination Date will be the arithmetic mean of the rates quoted as of approximately
11:00 a.m., London time, on such LIBOR Determination Date by three major banks in the London
inter-bank market selected by the Corporation for loans in U.S. dollars to leading European
banks, having a three-month maturity commencing on the second LIBOR Business Day immediately
following such LIBOR Determination Date and in a principal amount equal to that which is
representative for a single transaction in such market at such time; provided, however,
that, if the banks selected as aforesaid by the Corporation are not quoting as mentioned in
this sentence, Three-Month LIBOR for such LIBOR Determination Date will be the Three-Month
LIBOR determined with respect to the immediately preceding Dividend Period.




     “Transfer” means any sale, transfer, gift, assignment, devise or other disposition of
the WPFC Series B Preferred Securities, including, but not limited to, (i) the granting of
any option or entering into any agreement for the sale, transfer or other disposition of



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such securities, or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for WPFC Series B Preferred
Securities, whether voluntary or involuntary, whether of record or beneficially and whether
by operation of law or otherwise.




     “Wachovia Bank” means Wachovia Bank, National Association, a national banking
association, or its successors and assigns.




     “WPFC” means Wachovia Preferred Funding Corp., a Delaware corporation.




     “WPFC Series B Preferred Securities” means the Floating Rate Non-cumulative Series B
Preferred Securities, par value $0.01, liquidation preference $25.00 per share, of WPFC.



     3. Dividends. (a) The dividend rate for the Series H Preferred Stock shall be the
Applicable Rate per share per annum of the initial liquidation preference of $20,000.00 per share,
accruing from the effective date of the Conditional Exchange to and including the last day of
March, the last day of June, the last day of September or the last day of December, whichever
occurs first, after issuance of the Series H Preferred Stock following the Conditional Exchange
(such period being the “Initial Dividend Period”) and then for each quarterly period thereafter,
commencing on April 1, July 1, October 1 or January 1, as the case may be, of each year and ending
on and including the day next preceding the first day of the next such quarterly period (each such
period, including the Initial Dividend Period, being a “Dividend Period”), payable to holders of
record of the Series H Preferred Stock on the respective record dates fixed for such purpose by the
Board of Directors in advance of payment of such dividend, which shall be the 15th calendar day of
the last calendar month of the applicable Dividend Period (each such date, a “Dividend Record
Date”). If such Dividend Record Date is not a Business Day, then the Dividend Record Date for the
applicable Dividend Period shall be the first Business Day immediately following the 15th calendar
day of the last calendar month of the applicable Dividend Period, except if such Business Day falls
in the calendar month following the last calendar month of the applicable Dividend Period, the
Dividend Record Date shall be the last Business Date immediately preceding the 15th calendar day of
the last calendar month of the applicable Dividend Period. Until no longer outstanding, the
holders of the Series H Preferred Stock shall be entitled to receive such cash dividends, and the
Corporation shall be bound to pay the same, but only as, if and when declared by the Board of
Directors, out of funds legally available for the payment thereof (each such payment, a “Dividend
Payment”), on March 31, June 30, September 30 and December 31 of each year (each a “Dividend
Payment Date”) for the respective Dividend Period ending on such date; provided, however, that the
Dividend Payment for the Initial Dividend Period shall include any unpaid dividends accrued from
the payment date of the last dividend paid prior to such date on the WPFC Series B Preferred
Securities. If a Dividend Payment Date is not a Business Day, the Dividend Payment due on such
Dividend Payment Date shall be paid on the first Business Day immediately following such Dividend
Payment Date, except if such Business Day falls in a different calendar year than such Dividend
Payment Date, such Dividend Payment shall be paid on the last Business Date immediately preceding
such Dividend Payment Date. The amount of dividends payable for the Initial Dividend Period or any
period shorter than a full Dividend Period shall be computed on the basis of a 360-day year having
30-day months and the actual number of days elapsed in the period.



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     (b) Dividends shall be non-cumulative. If the Board of Directors fails to or chooses
not to declare a dividend on the Series H Preferred Stock for a Dividend Period, then
holders of the Series H Preferred Stock shall have no right to receive a dividend for that
Dividend Period, and the Corporation shall have no obligation to pay a dividend for that
Dividend Period, whether or not dividends are declared and paid for any future Dividend
Period, with respect to either the Series H Preferred Stock, other series of preferred stock
of the Corporation, or the Common Stock.




     (c) Holders of Series H Preferred Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of full dividends for each Dividend Period, as
herein provided, on the Series H Preferred Stock. No interest, or sum of money in lieu of
interest, shall be payable in respect of any Dividend Payment or Dividend Payments or
failure to make any Dividend Payment or Dividend Payments.




     (d) Unless full dividend payments on the Series H Preferred Stock have been declared
and paid or declared and a sum sufficient for such payment has been set apart for payment
for the immediately preceding Dividend Period, no dividends shall be declared or paid or set
aside for payment and no other distribution shall be declared or made or set aside for
payment upon any shares of Junior Stock, nor shall shares of Junior Stock be redeemed,
purchased, or otherwise acquired for any consideration, nor shall any monies be paid to or
made available for a sinking fund for the redemption of any such securities by the
Corporation, except by conversion into or exchange for other Junior Stock.



     4. Liquidation Preference. (a) The amount payable on the Series H Preferred Stock in
the event of any voluntary or involuntary liquidation, dissolution, or winding-up of affairs of the
Corporation shall be $20,000.00 per share, plus authorized, declared but unpaid dividends up to the
date of such liquidation, dissolution, or winding-up of affairs of the Corporation, and no more
before any distribution shall be made to the holders of any shares of Junior Stock. The holders of
Series H Preferred Stock shall not be entitled to any further payments in the event of any such
voluntary or involuntary liquidation, dissolution, or winding-up of affairs of the Corporation
other than what is expressly provided for in this Section 4(a).




     (b) If the amounts available for distribution in respect of the Series H Preferred
Stock and any Parity Stock are not sufficient to satisfy the full liquidation rights of all
of the outstanding Series H Preferred Stock and any Parity Stock, then the holders of the
Series H Preferred Stock and any Parity Stock shall share ratably in any such distribution
of assets in proportion to the full respective liquidation preference to which they are
entitled.




     (c) The sale, conveyance, exchange or transfer (for cash, shares of stock, securities
or other consideration) of all or substantially all of the property and assets of the
Corporation shall not be deemed a dissolution, liquidation or winding up of the Corporation,
nor shall the merger, consolidation or any other business combination transaction of the
Corporation into or with any other corporation or Person or the merger, consolidation or any
other business combination transaction of any other corporation or



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Person into or with the Corporation be deemed to be a dissolution, liquidation or
winding up of the Corporation.



     5. Redemption. (a) The Series H Preferred Stock shall not be redeemable by the
Corporation prior to the fifth anniversary of the initial issuance of the WPFC Series B Preferred
Securities, except upon the occurrence of a Regulatory Capital Event. On or after the fifth
anniversary of the initial issuance of the WPFC Series B Preferred Securities, the Corporation may,
with the prior approval of the OCC, redeem the Series H Preferred Stock for cash, in whole or in
part, at a price equal to $20,000.00 per share of Series H Preferred Stock, plus authorized,
declared, but unpaid dividends to the Redemption Date, without interest, on shares redeemed
(collectively, the “Redemption Price”) from funds legally available for such purpose.




     (b) On or after the fifth anniversary of the initial issuance of the WPFC Series B
Preferred Securities, the Corporation, at the option of the Board of Directors, may at any
time redeem fewer than all the outstanding Series H Preferred Stock. In that event, the
shares to be redeemed shall be determined by lot, pro rata, or by such other method as the
Board of Directors in its sole discretion determines to be equitable.




     (c) Prior to the fifth anniversary of the initial issuance of the WPFC Series B
Preferred Securities, but only upon or after the occurrence of a Regulatory Capital Event,
the Corporation, at the option of the Board of Directors, may redeem the outstanding
Series H Preferred Stock, in whole, but not in part, for the Redemption Price from funds
legally available for such purpose.




     (d) Not more than 60 days and not less than 30 days prior to the date established for
such redemption by the Board of Directors (the “Redemption Date”), notice of the proposed
redemption shall be mailed to the holders of record of the Series H Preferred Stock to be
redeemed, such notice to be addressed to each such stockholder at his last known address
shown on the records of the Corporation, and the time of mailing such notice shall be deemed
to be the time of the giving thereof. On or after the Redemption Date, the Series H
Preferred Stock called for redemption shall automatically, and without further action on the
part of the holder thereof, be deemed to have been redeemed and the former holder thereof
shall thereupon only be entitled to receive payment of the Redemption Price. If such notice
of redemption shall have been given as aforesaid, and if on or before the Redemption Date
the funds necessary for the redemption shall have been set aside so as to be available
therefore, then the dividends thereon shall cease to accrue after the Redemption Date and
all rights with respect to the Series H Preferred Stock so called for redemption shall
forthwith after such Redemption Date cease, except the right of the holders to receive the
Redemption Price, without interest. If such notice of redemption of all or any part of the
Series H Preferred Stock shall have been mailed as aforesaid and the Corporation shall
thereafter deposit money for the payment of the Redemption Price pursuant thereto with any
bank or trust company (the “Depositary Company”), including any Affiliate of the
Corporation, selected by the Board of Directors for that purpose, to be applied to such
redemption, then from and after the making of such deposit, such Series H Preferred Stock
shall not be deemed to be outstanding for any purpose, and the rights of the holders thereof
shall be limited to the rights to receive payment of the Redemption Price, without interest
but including any



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declared, authorized, but unpaid, dividends to the Redemption Date, from the Depositary
Company, if applicable, upon endorsement, if required, and surrender of the certificates
therefore. The Corporation shall be entitled to receive, from time to time, from the
Depositary Company, the interest, if any, allowed on such moneys deposited with it, and the
holders of any Series H Preferred Stock so redeemed shall have no claim to any such
interest. Any moneys so deposited and remaining unclaimed at the end of three years from
the Redemption Date shall, if thereafter requested by resolution of the Board of Directors,
be repaid to the Corporation, and in the event of such repayment to the Corporation, such
holders of record of the Series H Preferred Stock so redeemed which shall not have made
claim against such moneys prior to such repayment to the Corporation shall be deemed to be
unsecured creditors of the Corporation for an amount equivalent to the amount deposited as
stated above for the redemption of the Series H Preferred Stock and so repaid to the
Corporation, but shall in no event be entitled to any interest.




     (e) Subject to the provisions herein, the Board of Directors shall have authority to
prescribe from time to time the manner in which the Series H Preferred Stock shall be
redeemed.




     (f) Nothing contained herein shall limit any legal right of the Corporation to purchase
any shares of the Series H Preferred Stock.



     6. Conversion. The holders of the Series H Preferred Stock shall not have any rights
to convert such Series H Preferred Stock into shares of any other class of capital stock of the
Corporation.



     7. Rank. Notwithstanding anything set forth in the Restated Certificate of
Incorporation of the Corporation or this Certificate of Designations to the contrary, the Board of
Directors, without the vote of the holders of the Series H Preferred Stock, may authorize and issue
additional shares of Junior Stock, Parity Stock or any class or series of stock ranking senior to
Series H Preferred Stock as to dividends and upon voluntary or involuntary liquidation, dissolution
or winding-up of affairs of the Corporation.



     8. Repurchase. Subject to the limitations imposed herein, the Corporation may
purchase and sell Series H Preferred Stock from time to time to such extent, in such manner, and
upon such terms as the Board of Directors may determine; provided, however, that the Corporation
shall not use any of its funds for any such purchase when there are reasonable grounds to believe
that the Corporation is, or by such purchase would be, rendered insolvent.



     9. Voting Rights. The holders of Series H Preferred Stock will have no voting rights
except as expressly provided by applicable law.



     10. Unissued or Reacquired Shares. Shares of Series H Preferred Stock not issued or
which have been issued and converted, redeemed or otherwise purchased or acquired by the
Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock
without designation as to series.



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     11. No Sinking Fund. Shares of Series H Preferred Stock are not subject to the
operation of a sinking fund.



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     IN WITNESS WHEREOF, WELLS FARGO & COMPANY has caused this Certificate of Designations to be
signed by Barbara S. Brett, its Senior Vice President and Assistant Treasurer, and Laurel A.
Holschuh, its Secretary, this [•] day of [•], 2008.



	 	 	 	 	 
	 	WELLS FARGO & COMPANY

 	 
	 	By:  	 	 
	 	 	Barbara S. Brett, Senior Vice President 	 
	 	 	and Assistant Treasurer 	 
	 



Laurel A. Holschuh, Secretary               






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