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 QB0
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FACE AMOUNT: $
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REGISTERED NO.
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WELLS FARGO &
COMPANY
Notes Linked to the S&P
500 ® Index
due April 8,
2013
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 April 8, 2013. 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 on
the scheduled Valuation Date, the “ Stated Maturity
Date ” shall be the later of (i) three Business Days
(as defined below) after the 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.
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 Index Level is
greater than the Initial Index Level, $1,000 plus the lesser of
(A) the Additional Amount and (B) the Capped Return
Amount;
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if the Final Index Level is equal
to the Initial Index Level or is at least 85% of the Initial Index
Level, $1,000; and
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if the Final Index Level is less
than 85% of the Initial Index Level, $1,000 minus the product
of
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Initial Index Level –
Final Index Level -
.15
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Initial
Index 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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Final Index Level –
Initial Index Level
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Initial
Index Level
“ Capped Return Amount
” is $550 per $1,000 Face Amount of this Security.
The “ Initial Index
Level ” is 1057.08, the Closing Level of the Index on the
date this Security was priced for initial sale to the
public.
The “ Final Index Level
” shall be equal to Closing Level of the Index on the
Valuation Date.
“ Index ” shall
mean the S&P 500 Index.
“ Business Day ”
shall mean a day, other than a Saturday or Sunday, that is neither
a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in New York,
New York or Minneapolis, Minnesota.
“ 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 Index Level, the Additional
Amount, if any, and the Maturity Payment Amount, which
term
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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
” of the Index on any Trading Day shall mean the closing
level of the Index as reported by the Index Sponsor (or of any
successor index, as reported by the index sponsor of that successor
index) on such Trading Day or as determined by the Calculation
Agent as described in “—Discontinuance of the Index;
Alteration Of Method Of 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.”
“ Index Sponsor ”
shall mean Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc.
A “ Market Disruption
Event ” with respect to the Index will occur on any day
if the Calculation Agent determines, in its sole discretion, any of
the following:
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A material suspension or material
limitation of trading in 20% or more of the underlying stocks which
then comprise the Index or any successor index has occurred on that
day, in each case, during the one-hour period preceding the close
of trading on the primary organized U.S. exchange or trading system
on which those stocks are traded or, if in the case of a common
stock not listed or quoted in the United States, on the primary
non-U.S. exchange, trading system or market for that security.
Limitations on trading during significant market fluctuations
imposed pursuant to New York Stock Exchange Rule 80B or any
applicable rule or regulation enacted or promulgated by The New
York Stock Exchange, any other exchange, trading system or market,
any other self regulatory organization or the Securities and
Exchange Commission of similar scope or as a replacement for Rule
80B, may be considered material. For purposes of this certificate
“trading system” includes bulletin board
services.
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A material suspension or material
limitation has occurred on that day, in each case during the
one-hour period preceding the close of trading in options or
futures contracts related to the Index or any successor index,
whether by reason of movements in price exceeding levels permitted
by the exchange, trading system or market on which those options or
futures contracts are traded or otherwise.
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Any event, other than an early
closure, that materially disrupts or impairs the ability of market
participants in general to effect transactions in, or obtain market
values for, the securities that then comprise 20% or more of the
Index or any successor index, at any time during the one-hour
period preceding the close of trading on that day.
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Any event, other than an early
closure, that materially disrupts or impairs the ability of market
participants in general to effect transactions in, or obtain market
values for, the futures or options contracts relating to the Index
or any successor index on the primary exchange or quotation system
on which those futures or options contracts are traded, at any time
during the one-hour period preceding the close of trading on that
day.
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The closure of an exchange,
trading system or market on which the securities that then comprise
20% or more of the Index or any successor index are traded or which
futures or options contracts relating to the Index or any successor
index are traded prior to its scheduled closing time unless the
earlier closing time is announced by such exchange, trading system
or market at least one hour prior to the earlier of (1) the
actual closing time for the regular trading session of the
exchange, trading system or market and (2) the submission
deadline for orders to be entered in the exchange, trading system
or market for execution on such trading day.
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For purposes of determining whether
a Market Disruption Event has occurred:
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the relevant percentage
contribution of a security to the level of the Index or any
successor index will be based on a comparison of (x) the
portion of the level of the Index attributable to that security and
(y) the overall level of the Index, in each case immediately
before the occurrence of the Market Disruption Event;
and
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“close of trading”
means 4 p.m, New York City time.
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A “ Trading Day ”
is a day on which The New York Stock Exchange, The Nasdaq Stock
Market and the American Stock Exchange, or any successor thereto,
are open for trading during their regular trading
sessions.
The “ Valuation Date
” shall be the last Trading Day of March 2013. If the
Calculation Agent determines that a Market Disruption Event has
occurred or is continuing on the scheduled Valuation Date, the
Valuation Date will be postponed to the first succeeding Trading
Day on which there is not a Market Disruption Event. If the
Valuation Date has been postponed for eight Business Days after the
scheduled Valuation Date and such eighth Business Day is not a
Trading Day, or if a Market Disruption Event occurs or is
continuing on such eighth Business Day, the Calculation Agent will
determine the Closing Level of the Index on such eighth Business
Day in accordance with the formula for and method of calculating
the Closing Level of the Index last in effect prior to commencement
of the Market Disruption Event, using the closing price (or, if
trading in the relevant securities 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 or
non-Trading Day) on such date of each security most recently
included in the Index. Any such postponement of the date that would
otherwise be the scheduled Valuation Date will cause the Stated
Maturity Date to be postponed until three Business Days after the
Valuation Date if such third Business Day is after the Initial
Stated Maturity Date.
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Discontinuance Of The Index; Alteration Of
Method Of Calculation
If the Index Sponsor discontinues
publication of the Index and the Index Sponsor or another entity
publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the
discontinued Index, then any subsequent Closing Level of the Index
will be determined by reference to the level of such successor
index or substitute index (in any such case, referred to herein as
a “ successor index ”) at 4:00 p.m., New York
City time, on the date that any such subsequent Closing Level of
the Index 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 the Index Sponsor discontinues
publication of the Index prior to, and such discontinuance is
continuing on, the date that any Closing Level of the 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 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 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 Index on the primary
organized exchange or trading system. 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 whi
