Exhibit 4.1
[Face of Note]
Unless this certificate is presented
by an authorized representative of The Depository Trust Company, a
New York corporation (“ DTC ”), to the Company
or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede &
Co. or in such other name as requested by an authorized
representative of DTC (and any payment is made to Cede &
Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest
herein.
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CUSIP NO.
949746 QC8
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FACE AMOUNT: $
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REGISTERED
NO.
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WELLS FARGO &
COMPANY
Notes Linked to a Diversified
Equity Basket
due October 7,
2014
WELLS FARGO & COMPANY, a
corporation duly organized and existing under the laws of the State
of Delaware (hereinafter called the “ Company ,”
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to
pay to CEDE & Co., or registered assigns, an amount equal
to the Maturity Payment Amount (as defined below), in such coin or
currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts, on the
Stated Maturity Date. The “ Initial Stated Maturity
Date ” shall be October 7, 2014. If no Market
Disruption Event (as defined below) occurs or is continuing on the
scheduled Valuation Date (as defined below), the Initial Stated
Maturity Date will be the “ Stated Maturity Date
.” If a Market Disruption Event occurs or is continuing with
respect to a Basket Component (as defined below) on the scheduled
Valuation Date with respect to a Basket Component, the “
Stated Maturity Date ” shall be the later of
(i) three Business Days (as defined below) after the postponed
Valuation Date with respect to such Basket Component (or, if the
Valuation Date is postponed with respect to more than one Basket
Component, three Business Days after the latest postponed Valuation
Date) and (ii) the Initial Stated Maturity Date. This Security
shall not bear any interest.
Any payments on this Security at
Maturity will be made against presentation of this Security at the
office or agency of the Company maintained for that purpose in the
City of Minneapolis, Minnesota and at any other office or agency
maintained by the Company for such purpose.
2
Determination of Maturity Payment
Amount
“ Maturity Payment
Amount ” shall mean, for each $1,000 Face Amount of this
Security:
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if the Final Basket Level is
greater than the Initial Basket Level, $1,000 plus the Additional
Amount;
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if the Final Basket Level is
equal to the Initial Basket Level or is at least 80% of the Initial
Basket Level, $1,000; and
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if the Final Basket Level is less
than 80% of the Initial Basket Level, $1,000 minus the product
of
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Initial Basket Level –
Final Basket Level -
.20
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Initial
Basket Level
“ Additional Amount
” shall mean, for each $1,000 Face Amount of this Security,
an amount equal to the product of:
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Participation Rate;
and
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Final Basket Level –
Initial Basket Level
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Initial
Basket Level
The “ Participation
Rate ” is 1.08.
The “ Initial Basket
Level ” is 100.
The “ Final Basket
Level ” shall be equal to the product of (i) 100 and
(ii) an amount to equal to 1 plus the sum of: (A) 50% of
the Component Return of the S&P 500 Index; (B) 30% of the
Component Return of the iShares MSCI EAFE Index Fund; and
(C) 20% of the Component Return of the iShares MSCI Emerging
Markets Index Fund.
The “ Component Return
” of a Basket Component shall be equal to:
Final Component Level –
Initial Component Level
Initial
Component Level
where,
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the “ Initial Component
Level ” is the Closing Level of such Basket Component on
the Pricing Date; and
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the “ Final Component
Level ” is the Closing Level of such Basket Component on
the Valuation Date.
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The Initial Component Levels of the Basket
Components are as follows: S&P 500 Index (1057.08); iShares
MSCI EAFE Index Fund (54.70); and iShares MSCI Emerging Markets
Index Fund (38.91).
“ Adjustment Factor
” means, with respect to a share of an iShares Fund, 1.0,
subject to adjustment in the event of certain events affecting the
shares of such iShares Fund as described in
“—Anti-dilution Adjustments Relating To An iShares
Fund; Discontinuance Of An iShares Fund; Alternate
Calculation.”
“ Basket Component
” shall mean the S&P 500 Index (50%); the iShares MSCI
EAFE Index Fund (30%); and the iShares MSCI Emerging Markets Index
Fund (20%), with each Basket Component having the weighting noted
parenthetically.
“ Calculation Agency
Agreement ” shall mean the Calculation Agency Agreement
dated as of October 7, 2009 between the Company and the
Calculation Agent, as amended from time to time.
“ Calculation Agent
” shall mean the Person that has entered into the Calculation
Agency Agreement with the Company providing for, among other
things, the determination of the Final Basket Level, the Additional
Amount, if any, and the Maturity Payment Amount, which term shall,
unless the context otherwise requires, include its successors under
such Calculation Agency Agreement. The initial Calculation Agent
shall be Wells Fargo Securities, LLC. Pursuant to the Calculation
Agency Agreement, the Company may appoint a different Calculation
Agent from time to time after the initial issuance of the
Securities of this series without the consent of the Holders of the
Securities of this series and without notifying the Holders of the
Securities of this series.
The “ Closing Level
” on any Trading Day (as defined herein) means (A) with
respect to the S&P 500 Index, the closing level of the S&P
500 Index as reported by Standard & Poor’s, a
division of The McGraw-Hill Companies, Inc. (“ S&P
”) (or of any successor index (as defined herein), as
reported by the index sponsor of the successor index) and
(B) with respect to an iShares Fund (as defined herein) (or
any successor fund (as defined herein)), the product of
(i) the Closing Price (as defined herein) of one share of such
iShares Fund on such Trading Day and (ii) the Adjustment
Factor applicable to such iShares Fund on such Trading Day, as
determined by the Calculation Agent as described in
“—Anti-dilution Adjustments Relating to an iShares
Fund; Discontinuance of an iShares Fund; Alternate
Calculation.”
The “ Closing Price
” with respect to a share of an iShares Fund (or one unit of
any other security for which a Closing Price must be determined) on
any Trading Day means:
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if the share (or any such other
security) is listed or admitted to trading on a national securities
exchange (other than The Nasdaq Stock Market), the last reported
sale price, regular way, of the principal trading session on such
day on the principal United States securities exchange registered
under the Securities Exchange Act of 1934, as amended, on which the
share (or any such other security) is listed or admitted to
trading;
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if the share (or any such other
security) is a security of The Nasdaq Stock Market, the Nasdaq
official closing price published by The Nasdaq Stock Market, Inc.
on such day; or
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the share (or any such other
security) is neither listed or admitted to trading on any national
securities exchange but is included in the OTC Bulletin Board
Service operated by the National Association of Securities Dealers,
Inc., the last reported sale price of the principal trading session
on the OTC Bulletin Board on such day.
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If the shares of an iShares Fund (or
any such other security) are listed or admitted to trading on any
national securities exchange or are securities of The Nasdaq Stock
Market but the last reported sale price or Nasdaq official closing
price, as applicable, is not available pursuant to the preceding
sentence, then the Closing Price for one share (or one unit of any
such other security) on any Trading Day will mean the last reported
sale price of the principal trading session on the over-the-counter
market as reported on The Nasdaq Stock Market or the OTC Bulletin
Board on such day. If, because of a Market Disruption Event (as
defined herein) or otherwise, the last reported sale price or
Closing Price, as applicable, for the share (or any such other
security) is not available pursuant to either of the two preceding
sentences, then the Closing Price for any Trading Day will be the
mean, as determined by the Calculation Agent, of the bid prices for
the share (or any such other security) obtained from as many
recognized dealers in such security, but not exceeding three, as
will make such bid prices available to the Calculation Agent. Bids
of Wells Fargo affiliates may be included in the calculation of
such mean, but only to the extent that any such bid is the highest
of the bids obtained. The term “ security of The Nasdaq
Stock Market ” will include a security included in any
successor to such system, and the term OTC Bulletin Board Service
will include any successor service thereto. See
“—Anti-dilution Adjustments Relating to an iShares
Fund; Discontinuance of an iShares Fund; Alternate
Calculation.”
“ Face Amount ”
shall mean, when used with respect to any Security or Securities of
this series, the amount set forth on the face of such Security or
Securities as its or their “Face Amount.”
“ iShares Fund ”
shall mean the iShares MSCI EAFE Index Fund and the iShares MSCI
Emerging Markets Index Fund individually, and “ iShares
Funds ” shall mean the iShares MSCI EAFE Index Fund and
the iShares MSCI Emerging Markets Index Fund
collectively.
The “ Pricing Date
” shall mean the date the notes were priced for initial sale
to the public.
A “ Trading Day ”
is a day on which The New York Stock Exchange, The Nasdaq Stock
Market, the American Stock Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Options Exchange, or any successor
thereto, and the over-the-counter market for securities in the
United States are open for trading during regular trading
sessions.
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The “ Valuation Date
” shall be the last Trading Day of September 2014, subject to
postponement due to the occurrence of a Market Disruption Event. If
a Market Disruption Event occurs or is continuing with respect to a
Basket Component on the scheduled Valuation Date, the Calculation
Agent will determine the Closing Level of such Basket Component by
reference to the Closing Level of such Basket Component on the next
Trading Day on which there is not a Market Disruption Event for
such Basket Component; provided, however, if a Market Disruption
Event occurs with respect to a Basket Component on each of the five
Trading Days following the originally scheduled Valuation Date,
then (i) that fifth Trading Day will be deemed the Valuation
Date for such Basket Component and (ii) the Calculation Agent
will determine the Closing Level of such Basket Component subject
to a Market Disruption Event based on its good faith estimate of
the Closing Level on that fifth Trading Day. Notwithstanding a
postponement of the Valuation Date with respect to a Basket
Component that is subject to a Market Disruption Event, the
originally scheduled Valuation Date will remain the Valuation Date
for any Basket Component not subject to a Market Disruption Event.
See “—Market Disruption Events.”
Discontinuance Of The S&P 500
Index; Alteration Of Method Of Calculation
If S&P discontinues publication
of the S&P 500 Index and S&P or another entity publishes a
successor index or substitute index (in any such case, referred to
herein as a “ successor index ”) that the
Calculation Agent determines, in its sole discretion, to be
comparable to the discontinued S&P 500 Index, then any
subsequent Closing Level of the S&P 500 Index will be
determined by reference to the level of such successor index at
4:00 p.m., New York City time, on the date that any such subsequent
Closing Level is to be determined.
Upon any selection by the
Calculation Agent of a successor index, the Company will promptly
give notice to the Holders of the Securities of this
series.
If S&P discontinues publication
of the S&P 500 Index prior to, and such discontinuance is
continuing on, the date that any Closing Level of the S&P 500
Index is to be determined and the Calculation Agent determines that
no successor index is available at such time, then, on such date,
the Calculation Agent will determine the Closing Level of the
S&P 500 Index to be used in computing the amount payable at
stated maturity. Such Closing Level will be computed by the
Calculation Agent in accordance with the formula for and method of
calculating the S&P 500 Index last in effect prior to such
discontinuance, using the Closing Price (or, if trading in the
relevant security has been materially suspended or materially
limited, its good faith estimate of the Closing Price that would
have prevailed but for such suspension or limitation) at the close
of the principal trading session on such date of each security most
recently comprising the S&P 500 Index on the primary organized
exchange or Trading System (as defined herein). As used herein,
“ closing price ” means, with respect to any
security on any date, the last reported sales price regular way on
such date or, in case no such reported sale takes place on such
date, the average of the reported closing bid and asked prices
regular way on such date, in either case on the primary organized
exchange or Trading System on which such security is then listed or
admitted to trading.
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If a successor index is selected or
the Calculation Agent calculates a Closing Level as a substitute
for the S&P 500 Index, such successor index or Closing Level
will be used as a substitute for the S&P 500 Index for all
purposes, including for purposes of determining whether a Market
Disruption Event exists.
If at any time the method of
calculating the S&P 500 Index or a successor index, or the
Closing Level thereof, is changed in a material respect, or if the
S&P 500 Index or a successor index is in any other way modified
so that such index does not, in the opinion of the Calculation
Agent, fairly represent the value of the S&P 500 Index or such
successor index had such changes or modifications not been made,
then the Calculation Agent will, at the close of business in New
York City on the date that any Closing Level of the S&P 500
Index is to be determined, make such calculations and adjustments
as, in the good faith judgment of the Calculation Agent, may be
necessary in order to arrive at a value of a stock index comparable
to the S&P 500 Index or such successor index, as the case may
be, as if such changes or modifications had not been made. The
Calculation Agent will calculate the Closing Level of the S&P
500 Index and the amount payable at stated maturity with reference
to the S&P 500 Index or such successor index, as adjusted.
Accordingly, if the method of calculating the S&P 500 Index or
a successor index is modified so that the level of such index is a
fraction of what it would have been if it had not been modified
(for example, due to a split in the index), then the Calculation
Agent will adjust such index in order to arrive at a level of the
S&P 500 Index or such successor index as if it had not been
modified (for example, as if such split had not
occurred).
Anti-dilution Adjustments
Relating To An iShares Fund; Discontinuance Of An iShares Fund;
Alternate Calculation
If the shares of an iShares Fund are
subject to a stock split or reverse stock split, then once such
split has become effective, the Adjustment Factor with respect to
such shares will be adjusted to equal the product of the prior
Adjustment Factor for such shares and the number of shares issued
in such stock split or reverse stock split with respect to one such
share.
If an iShares Fund is de-listed,
liquidated or otherwise terminated (a “ Liquidation
Event ”), and a successor or substitute exchange traded
fund exists that the Calculation Agent determines, in its sole
discretion, to be comparable to such iShares Fund, then any
subsequent Closing Level will be determined by reference to the
Closing Price of the shares of such successor or substitute
exchange traded fund (such exchange traded fund being referred to
herein as a “ successor fund ”).
Upon any selection by the
Calculation Agent of a successor fund, the Calculation Agent will
give notice to the Holders of the Securities.
If an iShares Fund undergoes a
Liquidation Event prior to, and such Liquidation Event is
continuing on, the date that the Closing Level of such iShares Fund
is to be determined and the Calculation Agent determines that no
successor fund is available at such time, then the Calculation
Agent will, in its discretion, calculate the Closing Price for such
iShares Fund on such date by a computation methodology that the
Calculation Agent determines will as closely as reasonably possible
replicate such iShares Fund.
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If a successor fund is selected or
the Calculation Agent calculates the Closing Price as a substitute
for an iSh