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.
949746PY1
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FACE AMOUNT: $
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REGISTERED NO.
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WELLS FARGO &
COMPANY
Notes Linked to the
iShares ® MSCI Emerging Markets Index Fund
due September 8,
2011
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 September 8, 2011. 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 Fund Level is
greater than the Initial Fund Level, $1,000 plus the lesser of
(A) the Additional Amount and (B) the Capped Return
Amount;
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if the Final Fund Level is equal
to the Initial Fund Level or is at least 85% of the Initial Fund
Level, $1,000; and
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if the Final Fund Level is less
than 85% of the Initial Fund Level, $1,000 minus the product
of
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• $1,000;
and
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Initial Fund Level – Final Fund Level –
.15
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Initial Fund
Level
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“ Additional Amount
” shall mean, for each $1,000 Face Amount of this Security,
an amount equal to the product of:
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• $1,000;
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• 2.0;
and
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Final Fund Level – Initial Fund Level
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Initial Fund
Level
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“ Capped Return Amount
” is $375 per $1,000 Face Amount of this Security.
The “ Initial Fund
Level ” is 35.31, the Fund Closing Price on the date this
Security was priced for initial sale to the public.
The “ Final Fund Level
” shall be equal to the Fund Closing Price of the Fund on the
Valuation Date.
Set forth below are certain defined
terms used in this Security in connection with the determination of
the Maturity Payment Amount.
“ Adjustment Factor
” means, with respect to a share of the Fund, 1.0, subject to
adjustment in the event of certain events affecting the shares of
the Fund as described in “—Anti-Dilution Adjustments;
Discontinuance of the Fund; Alteration of Method of
Calculation.”
“ 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.
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“ Calculation Agency
Agreement ” shall mean the Calculation Agency Agreement
dated as of September 8, 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 Fund 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.
“ Closing Price ”
with respect to a share of the 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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if 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 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 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 affiliates of the Company 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
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included in any successor to such system, and
the term OTC Bulletin Board Service will include any successor
service thereto as described in “—Anti-Dilution
Adjustments; Discontinuance of the Fund; 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.”
“ Fund ” shall
mean the iShares ® MSCI Emerging Markets Index Fund.
“ Fund Closing Price
” with respect to the Fund (or any Successor Fund) on any
Trading Day shall mean the product of (i) the Closing Price of
one share of the Fund on such Trading Day and (ii) the
Adjustment Factor applicable to the Fund on such Trading Day, as
determined by the Calculation Agent as described in
“—Anti-Dilution Adjustments; Discontinuance of the
Fund; Alteration Of Method Of Calculation.
“ Fund Sponsor ”
shall mean iShares, Inc.
A “ Market Disruption
Event ” with respect to the Fund will occur on any day if
the Calculation Agent determines, in its sole discretion, any of
the following:
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An absence or material suspension
or material limitation of trading of the shares of the Fund or any
Successor Fund (as defined below) or of 20% or more of the
underlying stocks which then comprise the Underlying Index has
occurred on that day, in each case, during the one-hour period
preceding the Close of Trading on the Relevant
Exchange(s).
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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 shares of the Fund or any
Successor Fund or the Underlying Index on the primary exchange or
quotation system on which those futures or options are traded,
whether by reason of movements in price exceeding levels permitted
by an 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 shares of the Fund or any Successor Fund or the
securities that then comprise 20% or more of the Underlying 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 Fund
or any Successor Fund or the Underlying 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 the Relevant
Exchange on which the shares of the Fund or any Successor Fund or
the securities that then comprise 20% or more of the Underlying
Index are traded or on which futures or options contracts relating
to the Fund or any Successor Fund or the Underlying Index are
traded prior to its scheduled closing time unless the earlier
closing time is announced by the Relevant Exchange at least one
hour prior to the earlier of (i) the actual closing time for
the regular trading session of the Relevant Exchange and
(ii) the submission deadline for orders to be entered in the
Relevant Exchange for execution at the Close of Trading on that
day.
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For purposes of determining whether
a Market Disruption Event has occurred:
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“ Relevant Exchange
” means the primary exchange or market of trading (which
includes bulletin board services) for the shares of the Fund or any
Successor Fund or for any security then included in the Underlying
Index;
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the relevant percentage
contribution of a security to the level of the Underlying Index
will be based on a comparison of (x) the portion of the level
of the Underlying Index attributable to that security and
(y) the overall level of the Underlying Index, in each case
immediately before the occurrence of the Market Disruption
Event;
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a decision to permanently
discontinue trading in the relevant futures or options contracts or
exchange traded funds will not constitute a Market Disruption
Event;
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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;
and
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“ Close of Trading
” means, in respect of any Relevant Exchange, the scheduled
weekday closing time on a day on which the Relevant Exchange is
scheduled to be open for trading for its respective regular trading
session, without regard to after hours or any other trading outside
the regular trading session hours.
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A “ Trading Day ”
means a day, as determined by the Calculation Agent, 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.
“ Underlying Index
” shall mean the MSCI Emerging Markets Index.
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The “ Valuation Date
” shall be the last Trading Day of August 2011. 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
aft
