EX-4.4






Exhibit 4.4




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 I

(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:



     Section 1. Designation. The shares of such series of Preferred Stock shall be
designated Class A Preferred Stock, Series I, with no par value and a liquidation preference of
$100,000 per share (hereinafter referred to as the “Series I Preferred Stock”). Each share of
Series I Preferred Stock shall be identical in all respects to every other share of Series I
Preferred Stock. Series I Preferred Stock will rank equally with Parity Stock, if any, and will
rank senior to Junior 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.



     Section 2. Number of Shares. The number of shares of Series I Preferred Stock shall
be 25,010. Such number may from time to time be increased (but not in excess of the total number
of authorized shares of preferred stock) or decreased (but not below the number of shares of Series
I Preferred Stock then outstanding) by the board of directors. Shares of Series I Preferred Stock
that are redeemed, purchased or otherwise acquired by the Corporation shall be



 









 







cancelled and shall revert to authorized but unissued shares of preferred stock undesignated
as to series. The Corporation shall have the authority to issue fractional shares of Series I
Preferred Stock.



     Section 3. Definitions. As used herein with respect to Series I Preferred Stock:



          “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in Charlotte, North Carolina or New York, New York are not authorized or obligated by
law, regulation or executive order to close.




          “Depositary Company” shall have the meaning set forth in Section 6(d).




          “Dividend Payment Date” shall have the meaning set forth in Section 4(a).




          “Dividend Period” shall have the meaning set forth in Section 4(a).




          “DTC” means The Depositary Trust Company, together with its successors and assigns.




          “Junior Stock” means the Corporation’s common stock and any other class or series of stock of
the Corporation hereafter authorized over which Series I Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.




          “London Banking Day” means any day on which commercial banks are open for general business
(including dealings in deposits in U.S. dollars) in London.




          “Parity Stock” means any other class or series of stock of the Corporation that ranks on a par
with Series I Preferred Stock in the payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.




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




          “Telerate Page 3750” means the display page so designated on the Moneyline/Telerate Service
(or such other page as may replace that page on that service, or such other service as may be
nominated as the information vendor, for the purpose of displaying rates or prices comparable to
London Interbank Offered Rate for U.S. dollar deposits).




          “Three-Month LIBOR” means, with respect to any Dividend Period, the rate (expressed as a
percentage per annum ) for deposits in U.S. dollars for a three-month period commencing on the
first day of that Dividend Period that appears on Telerate Page 3750 as of 11:00 a.m. (London time)
on the second London Banking Day preceding the first day of that Dividend Period. If such rate
does not appear on Telerate Page 3750, Three-Month LIBOR will be determined on the basis of the
rates at which deposits in U.S. dollars for a three-month period commencing on the first day of
that Dividend Period and in a principal amount of not less than $1,000,000 are offered to prime
banks in the London interbank market by four major banks in the London interbank market selected by
the Corporation, at approximately 11:00 a.m., London time on the second London Banking Day
preceding the first day of that Dividend Period.




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Wachovia Bank, National Association, as calculation agent for the Preferred Stock, will
request the principal London office of each of such banks to provide a quotation of its rate. If
at least two such quotations are provided, Three-Month LIBOR with respect to that Dividend Period
will be the arithmetic mean (rounded upward if necessary to the nearest .00001 of 1%) of such
quotations. If fewer than two quotations are provided, Three-Month LIBOR with respect to that
Dividend Period will be the arithmetic mean (rounded upward if necessary to the nearest .00001 of
1%) of the rates quoted by three major banks in New York City selected by the calculation agent, at
approximately 11:00 a.m., New York City time, on the first day of that Dividend Period for loans in
U.S. dollars to leading European banks for a three-month period commencing on the first day of that
Dividend Period and in a principal amount of not less than $1,000,000. However, if the banks
selected by the calculation agent to provide quotations are not quoting as described above,
Three-Month LIBOR for that Dividend Period will be the same as Three-Month LIBOR as determined for
the previous Dividend Period, or in the case of the first Dividend Period, the most recent rate
that could have been determined in accordance with the first sentence of this paragraph had Series
I Preferred Stock been outstanding. The calculation agent’s establishment of Three-Month LIBOR and
calculation of the amount of dividends for each Dividend Period will be on file at the principal
offices of the Corporation, will be made available to any holder of Series I Preferred Stock upon
request and will be final and binding in the absence of manifest error.




     Section 4. Dividends.




     (a) Rate. Holders of Series I Preferred Stock shall be entitled to receive,
when, as and if declared by the board of directors, but only out of funds legally available
therefor, non-cumulative cash dividends on the liquidation preference of $100,000 per share
of Series I Preferred Stock, and no more, payable: (1) if the Series I Preferred Stock is
issued prior to March 15, 2011, semi-annually in arrears on each March 15 and September 15
through March 15, 2011 and (2) from and including the later of March 15, 2011 and the date
of issuance, quarterly in arrears on each March 15, June 15, September 15 and December 15.
If any date prior to March 15, 2011 specified pursuant to the preceding sentence is not a
Business Day, then dividends will be payable on the first Business Day following such date,
without accrual to the actual payment date; if any date on or after March 15, 2011 specified
pursuant the preceding sentence is not a Business Day, then dividends will be payable on the
first Business Day following such date and dividends shall accrue to the actual payment
date. The term “Dividend Payment Date” means each of the following dates occurring after
the date of issuance of the Series I Preferred Stock: (i) each March 15 and September 15
through September 15, 2010 and (ii) each March 15, June 15, September 15 and December 15, or
if any such day in the case of this clause (ii) is not a Business Day, the next Business
Day. The term “Dividend Period” means each period from and including a Dividend Payment
Date (or the date of issuance of the Series I Preferred Stock for the first Dividend Payment
Date) to but excluding the next Dividend Payment Date. For any Dividend Period ending prior
to the Dividend Payment Date in March 2011 dividends will accrue at a rate per annum equal
to 5.80%, and for any Dividend Period ending after the Dividend Payment Date in March 2011,
dividends will accrue at a rate per annum equal to the greater of (x) Three-Month LIBOR for
the related Dividend Period plus 0.93% and (y) 5.56975%. The amount of dividends payable
for any Dividend Period (1) ending prior to the Dividend Payment



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Date in March 2011 shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and (2) beginning on or after the Dividend Payment Date in March 2011
shall be computed on the basis of a 360-day year and the actual number of days elapsed.




     (b) Non-Cumulative Dividends. Dividends on shares of Series I Preferred Stock
shall be non-cumulative. To the extent that any dividends payable on the shares of Series I
Preferred Stock on any Dividend Payment Date are not declared and paid, in full or
otherwise, on such Dividend Payment Date, then such unpaid dividends shall not cumulate and
shall cease to accrue and be payable and the Corporation shall have no obligation to pay,
and the holders of Series I Preferred Stock shall have no right to receive, dividends
accrued for the Dividend Period ending immediately prior to such Dividend Payment Date after
such Dividend Payment Date or to pay interest with respect to such dividends, whether or not
dividends are declared for any subsequent Dividend Period with respect to Series I Preferred
Stock, Parity Stock, Junior Stock or any other class or series of authorized preferred stock
of the Corporation. Holders of Series I 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 on the Series I 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.




     (c) Priority of Dividends. So long as any share of Series I Preferred Stock
remains outstanding, (i) no dividend shall be declared or paid or set aside for payment and
no distribution shall be declared or made or set aside for payment on any Junior Stock,
other than a dividend payable solely in Junior Stock, (ii) no shares of Junior Stock shall
be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly
or indirectly (other than as a result of a reclassification of Junior Stock for or into
Junior Stock, or the exchange or conversion of one share of Junior Stock for or into another
share of Junior Stock, and other than through the use of the proceeds of a substantially
contemporaneous sale of other shares of Junior Stock), nor shall any monies be paid to or
made available for a sinking fund for the redemption of any such securities by the
Corporation, and (iii) no shares of Parity Stock shall be purchased, redeemed or otherwise
acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to
purchase all, or a pro rata portion, of the Series I Preferred Stock and such Parity Stock
except by conversion into or exchange for Junior Stock, unless full dividends on all
outstanding shares of Series I Preferred Stock for the then-current Dividend Period have
been paid in full or declared and set aside for payment. The foregoing shall not restrict
the ability of the Corporation, or any affiliate of the Corporation, to engage in any
market-making transactions in the Junior Stock or Parity Stock in the ordinary course of
business. When dividends are not paid in full upon the shares of Series I Preferred Stock
and any Parity Stock, all dividends declared upon shares of Series I Preferred Stock and any
Parity Stock shall be declared on a proportional basis so that the amount of dividends
declared per share will bear to each other the same ratio that accrued dividends for the
then-current Dividend Period per share on Series I Preferred Stock, and accrued dividends,
including any accumulations on Parity Stock, bear to each other. No interest will be
payable in respect of any dividend



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payment on such offered stock that may be in arrears. If the board of directors
determines not to pay any dividend or a full dividend on a Dividend Payment Date, the
Corporation will provide written notice to the holders of the Series I Preferred Stock prior
to such date. Subject to the foregoing, and not otherwise, such dividends (payable in cash,
stock or otherwise) as may be determined by the board of directors may be declared and paid
on any Junior Stock from time to time out of any funds legally available therefor, and the
 shares of Series I Preferred Stock shall not be entitled to participate in any such
dividend.



     Section 5. Liquidation Rights.




     (a) Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, holders of Series I Preferred
Stock shall be entitled, before any distribution or payment out of the assets of the
Corporation may be made to or set aside for the holders of any Junior Stock and subject to
the rights of the holders of any class or series of securities ranking senior to or on
parity with Series I Preferred Stock upon liquidation and the rights of the Corporation’s
depositors and other creditors, to receive in full a liquidation preference in an amount
equal to $100,000 per share, plus an amount equal to all accrued and unpaid dividends for
the then-current Dividend Period to the date of liquidation. The holder of Series I
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 the affairs of the
Corporation other than what is expressly provided for in this Section 5.




     (b) Partial Payment. If the assets of the Corporation are not sufficient to
pay in full the liquidation preference to all holders of Series I Preferred Stock and the
liquidation preferences of any Parity Stock to all holders of such Parity Stock, the amounts
paid to the holders of Series I Preferred Stock and to the holders of all Parity Stock shall
be pro rata in accordance with the respective aggregate liquidation preferences of Series I
Preferred Stock and all such Parity Stock.




     (c) Residual Distributions. If the liquidation preference has been paid in
full to all holders of Series I Preferred Stock and all holders of any Parity Stock, the
holders of Junior Stock shall be entitled to receive all remaining assets of the Corporation
according to their respective rights and preferences.




     (d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of
this Section 5, 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 voluntary or involuntary dissolution, liquidation or
winding up of the affairs 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 person into or with the Corporation be deemed to be a voluntary or
involuntary dissolution, liquidation or winding up of the affairs of the Corporation.



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     Section 6. Redemption.




     (a) Optional Redemption. So long as full dividends for all outstanding shares
of Series I Preferred Stock for the then-current Dividend Period have been paid or declared
and a sum sufficient for the payment thereof set aside, the Corporation, at the option of
the board of directors, may redeem in whole or in part the shares of Series I Preferred
Stock at the time outstanding, at any time on or after the later of March 15, 2011 and the
date of original issuance of the Series I Preferred Stock, upon notice given as provided in
Subsection (b) below, at the redemption price in effect at the redemption date as provided
in this Section 6. The redemption price for shares of Series I Preferred Stock shall be
$100,000 per share plus dividends that have been declared but not paid plus accrued and
unpaid dividends for the then-current Dividend Period to the redemption date.




     (b) Notice of Redemption. Notice of every redemption of shares of Series I
Preferred Stock shall be mailed by first class mail, postage prepaid, addressed to the
holders of record of the shares to be redeemed at their respective last addresses appearing
on the books of the Corporation. Such mailing shall be at least 30 days and not more than
60 days before the date fixed for redemption. Notwithstanding the foregoing, if the Series
I Preferred Stock is held in book-entry form through DTC, the Corporation may give such
notice in any manner permitted by DTC. Any notice mailed as provided in this Subsection
shall be conclusively presumed to have been duly given, whether or not the holder receives
such notice, but failure duly to give such notice by mail, or any defect in such notice or
in the mailing thereof, to any holder of shares of Series I Preferred Stock designated for
redemption shall not affect the validity of the proceedings for the redemption of any other
 shares of Series I Preferred Stock. Each notice shall state (i) the redemption date; (ii)
the number of shares of Series I Preferred Stock to be redeemed; (iii) the redemption price;
(iv) the place or places where the Series I Preferred Stock are to be redeemed; and (v) that
dividends on the shares to be redeemed will cease to accrue on the redemption date.




     (c) Partial Redemption. In case of any redemption of only part of the shares
of Series I Preferred Stock at the time outstanding, the shares of Series I Preferred Stock
to be redeemed shall be selected either pro rata from the holders of record of Series I
Preferred Stock in proportion to the number of Series I Preferred Stock held by such holders
or by lot or in such other manner as the board of directors may determine to be fair and
equitable. Subject to the provisions hereof, the board of directors shall have full power
and authority to prescribe the terms and conditions upon which shares of Series I Preferred
Stock shall be redeemed from time to time.




     (d) Effectiveness of Redemption. If notice of redemption has been duly given
and if on or before the redemption date specified in the notice all funds necessary for the
redemption have been set aside by the Corporation, separate and apart from its other funds,
in trust for the pro rata benefit of the holders of the shares called for redemption, so as
to be and continue to be available therefor, or deposited by the Corporation with a bank or
trust company selected by the board of directors (the “Depositary Company”) in trust for the
pro rata benefit of the holders of the shares called for redemption, then,



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notwithstanding that any certificate for any share so called for redemption has not
been surrendered for cancellation, on and after the redemption date all shares so called for
redemption shall cease to be outstanding, all dividends with respect to such shares shall
cease to accrue after such redemption date, and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable on such redemption from such bank or trust company at
any time after the redemption date the funds so deposited, without interest. The
Corporation shall be entitled to receive, from time to time, from the Depositary Company any
interest accrued on such funds, and the holders of any shares called for redemption shall
have no claim to any such interest. Any funds so deposited and unclaimed at the end of
three years from the redemption date shall, to the extent permitted by law, be released or
repaid to the Corporation, and in the event of such repayment to the Corporation, the
holders of record of the shares so called for redemption 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 such shares and so repaid to the Corporation, but shall in no
event be entitled to any interest.



     Section 7. Voting Rights. The holders of Series I Preferred Stock will have no voting
rights and will not be entitled to elect any directors, except as expressly provided by law.



     Section 8. Conversion. The holders of Series I Preferred Stock shall not have any
rights to convert such Series I Preferred Stock into shares of any other class of capital stock of
the Corporation.



     Section 9. 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 I Preferred Stock, may authorize and issue
additional shares of Junior Stock, Parity Stock or any class of securities ranking senior to the
Series I Preferred Stock as to dividends and upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.



     Section 10. Repurchase. Subject to the limitations imposed herein, the Corporation
may purchase and sell Series I 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.



     Section 11. Unissued or Reacquired Shares. Shares of Series I 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.



     Section 12. No Sinking Fund. Shares of Series I 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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