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Exhibit 4.3
SECOND SUPPLEMENTAL
INDENTURE
BETWEEN
WELLS FARGO &
COMPANY, AS ISSUER
AND
CITIBANK, N.A., AS
TRUSTEE
DATED AS OF APRIL 1,
2008
TO
INDENTURE
DATED AS OF APRIL 15,
2003, AS SUPPLEMENTED
BY FIRST SUPPLEMENTAL
INDENTURE DATED AS OF NOVEMBER 8, 2004
FLOATING RATE
CONVERTIBLE
SENIOR DEBENTURES DUE
2033
SECOND SUPPLEMENTAL
INDENTURE
THIS SECOND SUPPLEMENTAL
INDENTURE (this “Second Supplemental Indenture”) is
made as of the 1st day of April, 2008, between Wells
Fargo & Company (the “Company”), and Citibank,
N.A., as trustee (the “Trustee”).
WHEREAS, the Company and the
Trustee heretofore executed and delivered an Indenture dated as of
April 15, 2003 and a First Supplemental Indenture dated as of
November 8, 2004 (the “Indenture”); and
WHEREAS, pursuant to the
Indenture the Company issued, and the Trustee authenticated and
delivered, the Company’s Floating Rate Convertible Senior
Debentures Due 2033 (the “Securities”); and
WHEREAS, Section 8.01 of
the Indenture provides that the Company, without the consent of the
Holders of the outstanding Securities, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental thereto to the extent set forth therein;
and
WHEREAS, all conditions
necessary to authorize the execution and delivery of this Second
Supplemental Indenture and to make this Second Supplemental
Indenture valid and binding have been complied with or have been
done or performed;
NOW, THEREFORE, in
consideration of the foregoing and notwithstanding any provision of
the Indenture which, absent this Second Supplemental Indenture,
might operate to limit such action, the Company and the Trustee
agree as follows for the equal and ratable benefit of the Holders
of the Securities:
ARTICLE 1
DEFINITIONS
1.01 General. For all
purposes of the Indenture and this Second Supplemental Indenture,
except as otherwise expressly provided or unless the context
otherwise requires:
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A. |
the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
the Indenture and this Second Supplemental Indenture as a whole and
not to any particular Article, Section or subdivision;
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B. |
capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indenture. |
ARTICLE 2
AMENDMENT
2.01 Amendment to
Section 1.01(a) of the Indenture. The definition of
“Remarketing Purchase Date” in Section 1.01(a) of
the Indenture is hereby amended and restated in its entirety as
follows:
“Remarketing
Purchase Date” means a Remarketing Reset Date or other
date on which the Company is required to purchase the Securities
pursuant to Section 15.04.
2.02 Amendment to
Section 15.03(d) of the Indenture. Section 15.03(d)
of the Indenture is hereby amended and restated in its entirety as
follows:
(d) If, by 4:00 p.m., New
York City time, on any Required Remarketing Date, the Remarketing
Agent is unable to remarket all Securities for which an election to
remarket has been made or if, at any time prior to delivery and
payment for the Securities, a condition precedent in the
Remarketing Agreement shall not have been fulfilled, a failed
remarketing (“ Failed Remarketing ”) shall be
deemed to have occurred. In the event of a Failed Remarketing, the
Company shall issue a press release regarding such Failed
Remarketing and stating the aggregate Original Principal Amount of
Securities that the Company will repurchase as required pursuant to
Section 15.04(a) and publish such information on its website
on the World Wide Web.
2.03 Amendment to
Section 15.03(f) of the Indenture. Section 15.03(f)
of the Indenture is hereby amended and restated in its entirety as
follows:
(f) Securities in respect of
which a Notice of Remarketing has been given by the Holder thereof
may not be converted pursuant to Article 11 hereof on or after the
date of the delivery of such Notice of Remarketing unless such
Notice of Remarketing has first been validly withdrawn as specified
below.
A Notice of Remarketing may
be withdrawn by means of a written notice of withdrawal delivered
to the office of the Paying Agent in accordance with the Notice of
Remarketing at any time prior to the close of business on the
Business Day immediately prior to the applicable Remarketing Reset
Date specifying:
(i) if certificated
Securities have been issued, the certificate numbers for Securities
in respect of which such notice of withdrawal is being submitted,
or if not, such information as required by the
Depositary;
(ii) the Original Principal
Amount, in integral multiples of $1,000, of the Securities with
respect to which such notice of withdrawal is being submitted;
and
(iii) the Original Principal
Amount
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