Mutual Reliance Review System for ExemptiveRelief Applications -- issuer to distribute guaranteed mediumterm notes -- issuer exempt from requirement that financialstatements be reconciled to Canadian GAAP and that auditor'sreport be accompanied by statement of auditor, subject to conditions-- issuer exempt from certain continuous disclosure requirements,including material change, proxy, insider reporting, and annualand interim financial statement requirements, subject to conditions-- issuer exempt from certain prospectus and eligibility requirements,subject to conditions -- issuer exempt from requirement to filecurrent annual information form in Ontario, Quebec and Saskatchewan,subject to conditions.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 80(b)(iii), 88(2)(b) and 121(2)(ii).
Applicable Ontario Rules
Rule 51-501 AIF and MD&A.
National Instrument 44-101 Short Form ProspectusDistributions.
National Instrument 44-102 Shelf Distributions.
National Instrument 71-101 MultijurisdictionalDisclosure System.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN, MANITOBA, ONTARIO, QUEBEC,
NEW BRUNSWICK, PRINCE EDWARDISLAND, NOVA SCOTIA AND
NEWFOUNDLAND AND LABRADOR
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
WELLS FARGO & COMPANYAND
WELLS FARGO FINANCIAL CANADACORPORATION
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,Quebec, New Brunswick, Prince Edward Island, Nova Scotia andNewfoundland and Labrador (the "Jurisdictions") hasreceived an application (the "Application") from WellsFargo & Company ("WFC") and Wells Fargo FinancialCanada Corporation ("WFFC" or the "Issuer"and together with WFC, the "Applicants") for a decisionunder the securities legislation of the Jurisdictions (the "Legislation")that the Applicants be exempted from the following requirementscontained in the Legislation:
(a) the requirements in section 2.5(1) ofNational Instrument 44-101 ("NI 44-101") that aperson or company guaranteeing non-convertible debt issuedby an issuer be a reporting issuer with a 12 month reportinghistory in a Canadian province or territory and have a currentannual information form (an "AIF") (the "EligibilityRequirement") in order to permit the Issuer to issuenon-convertible debt securities, and in particular Notes (asdefined below), with an approved rating (as defined in NI44-101) which will be fully and unconditionally guaranteedby WFC (any issue of the Notes being referred to as an "Offering");
(b) the requirement pursuant to NI 44-101to reconcile financial statements included in a short formprospectus and prepared in accordance with generally acceptedaccounting principles ("GAAP") of a foreign jurisdictionto Canadian GAAP (the "GAAP Reconciliation Requirement"),and with the requirements to provide, where financial statementsincluded in a short form prospectus are audited in accordancewith generally accepted auditing standards ("GAAS")of a foreign jurisdiction, a statement by the auditor disclosingany material differences in the auditor's report and confirmingthat the auditing standards of the foreign jurisdiction aresubstantially equivalent to Canadian GAAS (the "GAASReconciliation Requirement" and together with the GAAPReconciliation Requirement, the "Reconciliation Requirement");
(c) the requirement that a short form prospectusinclude the information set forth in items 12.1(1)(1), 12.1(1)(2),items 12.1(1)(5) to 12.1(1)(8), items 12.2(1) and 12.2(4)of Form 44-101F3 of NI 44-101 ("Form 44-101F3")(the "Prospectus Disclosure Requirements");
(d) the requirement that the Issuer issueand file with the Decision Makers press releases, and filewith the Decision Makers material change reports (together,the "Material Change Requirements");
(e) the requirement that the Issuer complywith the proxy and proxy solicitation requirements under theLegislation, including filing an information circular or reportin lieu thereof annually (the "Proxy Requirements");
(f) the requirement that insiders of the Issuerfile insider reports with the Decision Makers (the "InsiderReporting Requirements");
(g) the requirement that the Issuer file withthe Decision Makers and send to its security holders auditedannual financial statements and an annual report, where applicable,including without limitation management's discussion and analysisthereon (the "Annual Filing Requirement");
(h) the requirement that the Issuer file withthe Decision Makers and send, where applicable, to its securityholders unaudited interim financial statements, includingwithout limitation management's discussion and analysis thereon(the "Interim Financial Statement Requirements");
(i) the requirement in NI 44-101 and underthe Legislation of Ontario (Ontario Securities CommissionRule 51-501), Quebec (section 159 of the Regulation to theSecurities Act (Quebec)) and Saskatchewan (SaskatchewanInstrument 51-101) that the Issuer have a current annual informationform ("AIF") and file renewal AIFs (the "AIFRequirement") with the Decision Makers.
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor the Application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Quebec Commission Notice 14-101;
AND WHEREAS WFC and the Issuer have representedto the Decision Maker that:
1. WFC is a diversified financial servicescompany organized under the laws of the State of Delawareand registered as a bank holding company and financial holdingcompany under the Bank Holding Company Act of 1956, asamended. The principal executive offices of WFC are locatedin San Francisco, California. Based on assets at June 30,2003, WFC was the fourth largest bank holding company in theUnited States.
2. WFC is not a reporting issuer or the equivalentthereof in any Jurisdiction and has no present intention ofbecoming a reporting issuer or the equivalent thereof in anyJurisdiction. All of the directors and senior officers ofWFC reside outside Ontario.
3. WFC became a reporting company under theSecurities Exchange Act of 1934 of the United States(the "Exchange Act") many years ago. WFC has filedwith the United States Securities and Exchange Commission(the "SEC") all periodic reports required to befiled with the SEC under sections 13(a) and 15(d) of the ExchangeAct.
4. At June 30, 2003, WFC had approximately$58.5 billion in long-term debt outstanding (on a consolidatedbasis). All of WFC's outstanding long-term debt is rated A+by Standard & Poor's, AA by Fitch, Inc. and Aa1 by Moody'sInvestors Service.
5. WFFC is an unlimited liability companyamalgamated under the laws of the Province of Nova Scotiaand is a wholly-owned indirect subsidiary of WFC. The principalexecutive offices of WFFC are located in Toronto, Ontario.The main business of WFFC is to raise capital for its Canadianaffiliates for use in their consumer finance and related businesses.In addition, WFFC provides commercial revolving lines of creditto small businesses in Canada. Debt obligations relating tothese lines of credit currently represent approximately 10%of the total assets of WFFC.
6. WFFC is a reporting issuer or the equivalentthereof in each Jurisdiction.
7. WFFC has established a medium term noteprogram (the "MTN Program") and has issued $950,000,000principal amount of medium term notes (together with any furthermedium term notes issued under the MTN Program or any renewalthereof, including any Additional Notes (as defined below)issued under the Proposed Offering (as defined below), the"Notes") under a short form base shelf prospectusdated October 3, 2001, as amended by amendment no. 1 datedMarch 13, 2003. WFFC may issue up to $1,500,000,000 principalamount of Notes (or the equivalent thereof in US dollars)under the prospectus from time to time over a twenty-fivemonth period which began October 3, 2001.
8. WFC has unconditionally guaranteed thepayment of principal, premium (if any) and interest due underthe currently outstanding Notes, and as such WFC is a creditsupporter (as defined under NI 44-101) in respect of the currentlyoutstanding Notes. Accordingly, WFC files copies of its ExchangeAct filings with Canadian provincial securities regulatoryauthorities.
9. The Issuer proposes to "renew"the MTN Program by filing another short form base shelf prospectus(the "Proposed Offering") pursuant to NI 44-101and National Instrument 44-102 ("NI 44-102" andtogether with NI 44-101, the "Shelf Requirements")to provide the ability to raise funds through the issuanceof additional Notes (the "Additional Notes") fromtime to time over a 25 month period. The Additional Noteswill be fully and unconditionally guaranteed by WFC as topayment of principal, interest and all other amounts due thereunder.All Additional Notes will have an Approved Rating (as definedin the Shelf Requirements) and will be rated by a recognizedsecurity evaluation agency in one of the categories determinedby the Commission des valuers mobiliéres du Quebec(an "Approved Rating"). The Issuer may also renewthe MTN Program again in the future by filing additional shortform prospectuses in each of the Jurisdictions for Notes (the"Future Offerings").
10. WFC satisfies the criteria set forth inparagraph 3.1(a) of National Instrument 71-101 ("NI 101")and is eligible to use the multi-jurisdictional disclosuresystem ("MJDS") (as set out in NI 71-101) for thepurposes of distributing approved rating non-convertible debtin Canada based on compliance with United States ("US")prospectus requirements with certain additional Canadian disclosure.
11. Except for the fact that the Issuer isnot incorporated under US law, an Offering would comply withthe eligibility criteria under the MJDS as set forth in paragraphs3.1 and 3.2 of NI 71-101.
12. In connection with an Offering (which,for great certainty, includes the Proposed Offering and anyFuture Offerings):
(a) a short form base shelf prospectus anda prospectus supplement or supplements will be preparedpursuant to the Shelf Requirements, with the disclosurerequired by Item 12 (documents incorporated by reference)and Item 13 (issues of guaranteed securities) of Form 44-101F3being addressed by incorporating by reference WFC's publicdisclosure documents including WFC's most recently filedForm 10-K and the disclosure required by Item 7 (earningscoverage ratios) of Form 44-101F3 of NI 44-101 and section8.4 (requirement to update earnings coverage ratios) ofNI 44-102 being addressed by fixed charge coverage ratiodisclosure with respect to WFC in accordance with US requirements;
(b) each prospectus will include all materialdisclosure concerning the Issuer;
(c) each prospectus will incorporate byreference the most recent WFC 10-K (as filed under the ExchangeAct) together with all Form10-Qs and Form 8-Ks of WFC filedunder the Exchange Act in respect of the financial yearfollowing the year that is the subject of the WFC Form 10-K,as would be required were WFC to file a registration statementon Form S-3 in the United States, and will incorporate byreference any documents of the foregoing type filed afterthe date of the prospectus and prior to termination of theparticular Offering and will state that purchasers of theNotes will not receive separate continuous disclosure informationregarding the Issuer;
(d) the consolidated annual and interimfinancial statements of WFC that will be included in orincorporated by reference into the short form prospectusare prepared in accordance with U.S. GAAP and otherwisecomply with the requirements of U.S. law, and in the caseof audited annual financial statements, such financial statementsare audited in accordance with U.S. GAAS;
(e) in respect of the prospectus filed inconnection with the Proposed Offering only, the auditedannual financial statements of the Issuer for the fiscalyears ended December 31, 2002 and 2001 and the unauditedinterim financial statements of the Issuer for three monthsended and March 31, 2003 and the six months ended June 30,2003;
(f) in respect of a prospectus filed inconnection with any Future Offering:
(i) the annual comparative selected financialinformation (the "Annual Selected Financial Information")derived from the audited annual financial statements ofthe Issuer for its most recently completed financial yearand the financial year immediately preceding such financialyear, prepared in accordance with Canadian GAAP, accompaniedby a specified procedures report of the auditors to theIssuer, which shall define and include at least the followingline items (or such other line items that provide substantiallysimilar disclosure): (1) total income; (2) net income;(3) notes receivable -- related parties; (4) finance receivables,net (together with a descriptive note on the allowancefor credit losses); (5) total assets; (6) short-term debt;(7) long-term debt (which shall include the Notes); (8)total liabilities; and (9) total shareholder's equity;and
(ii) the interim comparative selectedfinancial information (the "Interim Selected FinancialInformation") derived from the unaudited interimfinancial statements of the Issuer for its most recentlycompleted interim period and the corresponding interimperiod in the previous financial year, prepared in accordancewith Canadian GAAP, which shall define and include atleast the line items which set out above in paragraph12(f)(i) (or such line items that provide substantiallysimilar disclosure);
(g) WFC will fully and unconditionally guaranteethe payments to be made by the Issuer on the Notes, togetherwith any other amounts that may be due under any provisionsof the trust indenture relating to the Notes;
(h) the Notes will have an Approved Rating;
(i) WFC will sign each prospectus as creditsupporter; and
(j) WFC will undertake to file with theDecision Maker in each Jurisdiction in electronic formatthrough SEDAR (as defined in National Instrument 13-101)under the Issuer's SEDAR profile all documents that it filesunder sections 13 (other than sections 13(d), (f) and (g)which relate, inter alia, to holdings by WFC of securitiesof other public companies) and 15(d) of the Exchange Act,together with appropriate filing fees, until such time asthe Notes are no longer outstanding.
AND WHEREAS under the System this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that:
(A) the Applicants be exempted from the EligibilityRequirement and the Reconciliation Requirement in connectionwith any Offering (which, for greater certainty, includesthe Proposed Offering and any Future Offering) provided that:
(i) each of WFC and the Issuer complieswith paragraph 12 above;
(ii) the Issuer complies with all of thefiling requirements and procedures set out in NI 44-101except as varied by the Decision or as permitted by NationalInstrument 44-102;
(iii) WFC financial statements that areincluded or incorporated by reference in the Prospectusare prepared in accordance with US GAAP and, in the caseof the audited annual financial statements, such financialstatements are audited in accordance with US GAAS;
(iv) WFC, or any successor thereto, maintainsdirect or indirect 100% ownership of the voting shares ofthe Issuer; and
(v) WFC continues to satisfy the eligibilitycriteria set forth in paragraph 3.1 of NI 71-101 (or anyapplicable successor provision) for using MJDS (or any successorinstrument) for the purpose of distributing approved ratingnon-convertible debt in Canada based on compliance withUS prospectus requirements with certain additional Canadiandisclosure; and
(B) the Prospectus Disclosure Requirementsshall not apply to a prospectus for any Offering providedthat each of the Issuer and WFC complies with paragraph 12above.
(C) the AIF Requirement shall not apply tothe Issuer, provided that (i) WFC complies with the AIF requirementsof NI 44-101 as if it is the issuer by filing an AIF in theform of WFC's most recently filed Form 10-K (as filed underthe Exchange Act) and (ii) each of the Issuer and WFC complieswith all of the conditions in the Decisions above and below.
October 31, 2003.
AND THE FURTHER DECISION of the DecisionMakers under the Legislation is that:
(A) the Material Change Requirements shallnot apply to the Issuer in connection with any Notes (which,for greater certainty, includes Notes currently outstandingand any Notes issued under the Proposed Offering and FutureOfferings), provided that:
(i) WFC files with the Decision Makers,in electronic format through SEDAR under the Issuer's SEDARprofile, the current reports on Form 8-K of WFC which arefiled by it with the SEC promptly after they are filed withthe SEC provided such current reports would be requiredto be incorporated by reference in a Form S-3 registrationstatement of WFC;
(ii) WFC promptly issues in each Jurisdictionand the Issuer files with the Decision Makers, in electronicformat through SEDAR under the Issuer's SEDAR profile, anynews release that discloses material information and whichis required to be issued in connection with the Form 8-Krequirements applicable to WFC; and
(iii) if there is a material change in respectof the business, operations or capital of the Issuer thatis not a material change in respect of WFC, the Issuer willcomply with the requirements of the Legislation to issuea press release and file a material change report notwithstandingthat the change may not be a material change in respectof WFC;
(B) the Proxy Requirements shall not applyto the Issuer in connection with any Notes (which, for greatercertainty, includes Notes currently outstanding and any Notesissued under the Proposed Offering and Future Offerings),provided that:
(i) WFC complies with the requirements ofthe Exchange Act and the rules and regulations made thereunderrelating to proxy statements, proxies and proxy solicitationsin connection with any meeting of the holders of its notes;
(ii) WFC files with the Decision Makers,in electronic format through SEDAR under the Issuer's SEDARprofile, materials relating to any such meeting filed byWFC with the SEC promptly after they are filed with theSEC; and
(iii) such documents are provided to anyholder of Notes whose last address as shown on the booksof the Issuer is in Canada, in the manner, at the time andif required by applicable US law to be sent to WFC debtholders resident in the US.
(C) The Insider Reporting Requirements shallnot apply to insiders of the Issuer in connection with anyNotes (which, for greater certainty, includes Notes currentlyoutstanding and any Notes issued under the Proposed Offeringand Future Offerings), provided that such insiders file withthe SEC on a timely basis the reports, if any, required tobe filed with the SEC pursuant to section (16)(a) of the ExchangeAct and the rules and regulations thereunder;
(D) The Annual Filing Requirements shall notapply to the Issuer in connection with any Notes (which, forgreater certainty, includes Notes currently outstanding andany Notes issued under the Proposed Offering and Future Offerings),provided that:
(i) The Issuer files with the Decision Makers,in electronic format through SEDAR under the Issuer's SEDARprofile, the Annual Selected Financial Information, accompaniedby a specified procedures report of the auditors to theIssuer, in accordance with paragraph 12(f)(i) above, commencingwith the fiscal year ended December 31, 2003;
(ii) WFC files with the Decision Makers,in electronic format through SEDAR under the Issuer's SEDARprofile, the annual reports in Form 10-K filed by it withthe SEC within one business day after they are filed withthe SEC; and
(iii) such documents are provided to securityholders whose last address as shown on the books of theIssuer in Canada, in the manner, at the time and, if required,by applicable US law to be sent to WFC debt holders; and
(E) The Interim Financial Statement Requirementsshall not apply to the Issuer in connection with any Notes(which, for greater certainty, includes Notes currently outstandingand any Notes issued under the Proposed Offering and FutureOfferings), provided that:
(i) The Issuer files with the Decision Makers,in electronic format through SEDAR under the Issuer's SEDARprofile, the Interim Selected Financial Information in accordancewith paragraph 12(f)(ii) above commencing with the interimperiod ended September 30, 2003;
(ii) WFC files with the Decision Makersquarterly reports on Form10-Q in electronic format throughSEDAR under the Issuer's SEDAR profile, filed by it withthe SEC within one business day after they are filed withthe SEC; and
(iii) such documents are provided to securityholders whose last address as shown on the books of theIssuer is in Canada, in the manner, at the time and, ifrequired, by applicable US law to be sent to WFC debt holders;
further provided that (for A through E):
(a) the Issuer does not issue additionalsecurities to the public other than securities fully guaranteedby WFC;
(b) each of the Issuer and WFC comply withparagraph 12 above;
(c) the Notes maintain an Approved Rating;
(d) WFC, or any successor thereto, maintainsdirect or indirect 100% ownership of the voting shares ofthe Issuer;
(e) WFC maintains a class of securitiesregistered pursuant to section 12 of the Exchange Act oris required to file reports under section 15(d) of the ExchangeAct;
(f) WFC continues to satisfy the eligibilitycriteria set forth in paragraph 3.1 of NI 71-101 (or anyapplicable successor provision) for using MJDS (or any successorinstrument) for the purpose of distributing approved ratingnon-convertible debt in Canada based on compliance withUS prospectus requirements with certain additional Canadiandisclosures;
(g) the Issuer carries on no other businessother than that set out in paragraph 5 above;
(h) WFC continues to fully and unconditionallyguarantee payment of the principal and interest on the Notes,together with any other amounts that may be due under anyprovisions of the trust indenture relating to the Notes;and
(i) all filing fees that would otherwisebe payable by the Issuer in connection with the MaterialChange Requirements, the Proxy Requirements, the InsiderReporting Requirements, the Annual Filing Requirements andthe Interim Financial Statement Requirements and the AIFrequirement are paid.
October 31, 2003.
"Paul K. Bates"
"Wendell S. Wigle"