DEFA14A
Schedule 14A
(Rule 14A-101)
Information Required In Proxy Statement
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant x
Filed by a Party other than the Registrant o
Check the appropriate box:
o Preliminary Proxy Statement
o Confidential, For Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
o Definitive Proxy Statement
x Definitive Additional Materials
o Soliciting Material Under Rule 14a-12
Wachovia Corporation
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
|
|
|
PAYMENT OF FILING FEE (Check the appropriate box): |
x
|
|
No fee required. |
o
|
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11. |
|
|
|
|
|
1) Title of each class of securities to which transaction applies: |
|
|
|
|
|
|
|
|
|
|
|
2) Aggregate number of securities to which transaction applies: |
|
|
|
|
|
|
|
|
|
|
|
3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was
determined): |
|
|
|
|
|
|
|
|
|
|
|
4) Proposed maximum aggregate value of transaction: |
|
|
|
|
|
|
|
|
|
|
|
5) Total Fee Paid: |
|
|
|
|
|
|
|
|
|
o
|
|
Fee paid previously with preliminary materials: |
|
|
|
o
|
|
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and
identify the filing for which the offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the Form or Schedule and the date of its filing. |
|
|
|
|
|
1) Amount Previously Paid: |
|
|
|
|
|
|
|
|
|
|
|
2) Form, Schedule or Registration Statement No.: |
|
|
|
|
|
|
|
|
|
|
|
3) Filing Party: |
|
|
|
|
|
|
|
|
|
|
|
4) Date Filed: |
|
|
|
|
|
|
This Schedule 14A is being filed pursuant to a memorandum of understanding regarding the settlement
of certain litigation relating to the Agreement and Plan of Merger, dated as of October 3, 2008, as
amended, between Wells Fargo & Company (Wells Fargo) and Wachovia Corporation (Wachovia).
Settlement of Certain Litigation
As previously disclosed at pages 73-74 of the definitive proxy statement/prospectus of Wachovia,
dated November 21, 2008, included in Wells Fargos Registration Statement on Form S-4 (File No.
333-154879), as amended, under the heading The MergerLitigation Relating to the Merger,
Wachovia, the members of its board of directors, and Wells Fargo have been named as defendants in
certain actions filed on behalf of Wachovia shareholders challenging the proposed merger of Wells
Fargo and Wachovia. As disclosed in the proxy statement, one such action, a purported class action
captioned Irving Ehrenhaus v. John D. Baker, et al., was filed in the Superior Court for the County
of Mecklenburg in the State of North Carolina.
On December 5, 2008, the Court in the Ehrenhaus action denied preliminary injunctive relief with
respect to, among other things, the issuance and voting of preferred shares issued by Wachovia to
Wells Fargo on October 20, 2008 in connection with the merger that represent 39.9% of the voting
power of Wachovias capital stock. The Court did enjoin enforcement of a provision of the
transaction documentation providing that the preferred shares could not be redeemed by Wachovia for
at least 18 months following the shareholder vote on the merger agreement, even if the merger were
not approved by the shareholders (the 18-Month Tail Provision).
On December 17, 2008, the defendants entered into a memorandum of understanding with the plaintiffs
regarding the settlement of the Ehrenhaus action. In connection with the settlement contemplated
by the memorandum of understanding, Wachovia and Wells Fargo agreed not to appeal from the portion
of the Courts Order dated December 5, 2008 that enjoins the 18 Month Tail Provision. Wells Fargo
for its part also agreed to waive the enforceability by Wells Fargo of the 18 Month Tail Provision
to the extent enjoined by the Courts Order. Wachovia and Wells Fargo also agreed to make certain
additional disclosures related to the proposed merger, which are
contained in this Schedule 14A. The
memorandum of understanding contemplates that the parties will enter into a stipulation of
settlement.
The stipulation of settlement will be subject to customary conditions, including court approval
following notice to Wachovias shareholders. In the event that the parties enter into a
stipulation of settlement, a hearing will be scheduled at which the Court will consider the
fairness, reasonableness, and adequacy of the settlement. There can be no assurance that the
parties will ultimately enter into a stipulation of settlement or that the Court will approve the
settlement even if the parties were to enter into such stipulation. In such event, the proposed
settlement as contemplated by the memorandum of understanding may be terminated.
SUPPLEMENT TO DEFINITIVE PROXY STATEMENT
In connection with the settlement of certain outstanding shareholder litigation as described in
this Schedule 14A, Wachovia has agreed to make these supplemental disclosures to the proxy
statement dated November 21, 2008. This supplemental information should be read in conjunction
with the proxy statement, which should be read in its entirety.
Background of the Merger
The following disclosure supplements the discussion at pages 29-30 of the proxy statement
concerning discussions with potential partners other than Wells Fargo.
Wachovia did not contact, and was not contacted by, any of these potential partners with respect to
a possible combination or acquisition transaction following its execution of the merger agreement
with Wells Fargo on October 3.
The following disclosure supplements the discussion at pages 32-35 of the proxy statement
concerning the background of the merger.
During the period from September 29 through October 3, Wachovia did not have discussions with
potential transaction partners other than Wells Fargo and Citigroup.
The following disclosure supplements the discussion at page 35 of the proxy statement concerning
Wachovias October 2-3 board meeting.
Wachovia managements belief that the FDIC was prepared to place Wachovias banking subsidiaries in
receivership if an agreement was not signed by the end of the day on October 3 was based on
discussions with regulatory authorities, its knowledge of Wachovias financial condition, and the
approach being taken by the regulatory authorities in their interactions with Wachovia.
The Wachovia board took action with respect to the Wells Fargo proposal, when pending legislation
known as The Emergency Economic Stabilization Act of 2008 had not yet been acted upon by the
House of Representatives, because management advised the board that it believed that, unless an
agreement was signed by the end of the day on October 3, the FDIC was prepared to place Wachovias
banking subsidiaries in receivership over the coming weekend, and there was no assurance either
that the House of Representatives would approve the proposed legislation or that the proposed
legislation, if approved by Congress and signed into law, would offer Wachovia a viable alternative
to receivership because of uncertainty as to both the substance and timing of implementation.
Wachovias Financial Advisors
The following disclosure supplements the discussion at page 40 of the proxy statement concerning
the financial analyses of Goldman Sachs:
Goldman Sachs did not perform certain analyses that it customarily would have prepared for Wachovia
in connection with a fairness opinion because analyses of the kind that are often performed, such
as a comparable transaction analysis, a contribution analysis or a discounted cash flow analysis,
were not meaningful as a result of the extraordinary circumstances facing Wachovia as described in
Goldman Sachs opinion.
The following disclosure supplements the discussion at page 41 of the proxy statement concerning
the scope of the review conducted by Goldman Sachs:
Goldman Sachs did not make an independent evaluation or appraisal of any of the assets and
liabilities (including any contingent, derivative or off-balance-sheet assets and liabilities) of
Wachovia or Wells Fargo or any of their respective subsidiaries, and it was not furnished with any
such evaluation or appraisal.
The following disclosure supplements the discussion at page 41 of the proxy statement concerning
Goldman Sachs comparative analysis of Wells Fargo trading multiples:
The October 2, 2008 Price to Estimated Earnings multiples of Wells Fargo and the selected national
and regional banks were based on IBES earnings estimates.
The following disclosure supplements the discussion at page 46 of the proxy statement concerning
the financial analyses of Perella Weinberg:
Perella Weinberg did not perform certain analyses that it customarily would have prepared for
Wachovia in connection with a fairness opinion because analyses of the kind that are often
performed, such as a comparable company analysis or a discounted cash flow analysis, were not
meaningful as a result of the extraordinary circumstances facing Wachovia as described in Perella
Weinbergs opinion.
The following disclosure supplements the discussion at page 47 of the proxy statement concerning
the scope of the review conducted by Perella Weinberg:
In addition, Perella Weinberg did not review individual credit files nor did it make an independent
evaluation or appraisal of any of the assets and liabilities (including any contingent, derivative
or off-balance-sheet assets and liabilities) of Wachovia or Wells Fargo or any of their respective
subsidiaries, and it was not furnished with any such evaluation or appraisal.
The following disclosure supplements the discussion at page 49 of the proxy statement concerning
Perella Weinbergs analyses of Wells Fargo common stock based on trading multiples that Perella
Weinberg considered appropriate:
The companies that Perella Weinberg reviewed in determining the appropriate trading multiple ranges
were as follows: National Banks: Bank of America Corporation, JPMorgan Chase & Co. and Citigroup
Inc.; Regional Banks: U.S. Bancorp, PNC Financial Services Group, Inc., BB&T Corporation, Capital
One Financial Corporation, SunTrust Banks, Inc., M&T Bank Corporation, Regions Financial
Corporation, Fifth Third Bancorp, National City Corporation, KeyCorp and Marshall & Ilsley
Corporation.
* * *
The proposed merger will be submitted to Wachovia shareholders for their consideration. Wells Fargo
filed with the Securities and Exchange Commission (SEC) a registration statement on Form S-4 on
November 21, 2008 (Registration No. 333-154789) that includes a proxy statement of Wachovia that
also constitutes a prospectus of Wells Fargo. Wachovia mailed the proxy statement-prospectus to
its shareholders on or about November 21, 2008. Wachovia shareholders and other investors are
urged to read the proxy statement-prospectus because it describes the proposed merger and contains
other important information. You may obtain copies
of all documents filed with the SEC regarding the proposed merger, free of charge, on the SECs
website at www.sec.gov. You may also obtain free copies of these documents by contacting Wells
Fargo or Wachovia, as follows:
|
|
|
Wells Fargo & Company, Investor Relations, MAC A0101-025, 420 Montgomery Street,
2nd Floor, San Francisco, California 94104-1207, (415) 396-3668. |
|
|
|
|
Wachovia Corporation, Attention Investor Relations, One Wachovia Center, 301
South College Street, Charlotte, North Carolina 28288, (704) 374-6782. |
Wells Fargo and Wachovia and their respective directors and executive officers may be deemed to be
participants in the solicitation of proxies from Wachovia shareholders in connection with the
proposed merger. Information about Wells Fargos directors and executive officers and their
ownership of Wells Fargo common stock is contained in the definitive proxy statement for Wells
Fargos 2008 annual meeting of stockholders, as filed by Wells Fargo with the SEC on Schedule 14A
on March 17, 2008. Information about Wachovias directors and executive officers and their
ownership of Wachovia common stock is contained in the definitive proxy statement for Wachovias
2008 annual meeting of shareholders, as filed by Wachovia with the SEC on Schedule 14A on March 10,
2008. You may obtain free copies of these documents by contacting Wells Fargo or Wachovia at the
contact information provided above. The proxy statement-prospectus for the proposed merger
provides more information about participants in the solicitation of proxies from Wachovia
shareholders.