Form 424B2 WELLS FARGO & COMPANY/MN
business or economic conditions, such as changes in interest rates and capital market values, could affect the business and results of operations of our subsidiaries and therefore adversely affect the sources funding we have.
In addition, our right to participate in a distribution of assets upon the liquidation or reorganization of a subsidiary, and therefore the ability of a holder of our debt securities (including the Notes) to indirectly benefit from such distributions, is subject to the priority rights of the subsidiary’s creditors. This subordination of the creditors of a parent company to the priority claims of the creditors of its subsidiaries is commonly called structural subordination. In addition, our rights as a creditor of our subsidiaries may be subordinated to any security interests in the assets of such subsidiaries and to any obligations of such subsidiaries greater than those held by us.
As discussed in more detail below, federal banking regulators require measures to facilitate the continued operation of operating subsidiaries despite the bankruptcy of their parent companies, and our ability to receive funds from our subsidiaries may be limited by the agreement of support discussed in the following risk factors. In addition, dividend payments paid to us by our subsidiaries may also be limited if specified liquidity and/or capital measures fall below defined triggers or if our Board of Directors authorizes us to file a complaint under the U.S. Code. bankruptcies.
The resolution of Wells Fargo under the authority of orderly winding up could result in greater losses for holders of our debt securities, including the Notes, particularly if a single entry point strategy is employed.
Your ability to collect the full amount that would otherwise be payable on our debt securities (including the Notes) in a proceeding under the United States Bankruptcy Code may be impaired by the exercise by the Federal Deposit Insurance Corporation (the “FDIC“) of its powers under “ordered winding-up authority” under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd–Frank Act”). In particular, the single entry point strategy described below aims to impose losses at the level of the leading holding company when resolving a global systemically important bank (“G-SIB”) like Wells Fargo.
Title II of the Dodd-Frank Act created a new resolution regime called “orderly winding-up authority” to which financial companies, including bank holding companies such as Wells Fargo, may be subject. Under the Ordered Winding-Up Authority, the FDIC may be appointed as receiver of a financial company for purposes of winding up the entity if, on the recommendation of the Board of Governors of the Federal Reserve System (the “FRB”) and the FDIC, the United States Secretary of the Treasury determines, among other things, that the entity is in serious financial difficulty, that failure of the entity would have serious adverse effects on the United States financial system, and that resolution by the winding-up authority ordered would avoid or mitigate these effects. Absent such determinations, Wells Fargo, as a bank holding company, would remain subject to the United States Bankruptcy Code.
If the FDIC is appointed receiver under the orderly winding-up authority, then the orderly winding-up authority, rather than the U.S. Bankruptcy Code, will determine the powers of the receiver and the rights and obligations of creditors and other parties who have effected transactions with Wells Fargo. There are substantial differences between the rights available to creditors under orderly winding-up authority and under the United States Bankruptcy Code, including the FDIC’s right under orderly winding-up authority, disregarding the strict priority of creditors’ claims in certain circumstances (which would otherwise be respected by a bankruptcy court) and the use of an administrative claims procedure to determine creditors’ claims (as opposed to court used in bankruptcy proceedings). In certain circumstances, as part of the orderly winding-up authority, the FDIC may elevate the priority of claims if it determines that doing so is necessary to facilitate an orderly winding-up without the need to obtain the consent of other creditors or prior judicial review. In addition, under the orderly winding-up authority, the FDIC has the right to transfer the assets or liabilities of the bankrupt company to a third party or “bridge” entity.
The FDIC has indicated that a “single entry point” strategy may be a desirable strategy for resolving a large financial institution such as Wells Fargo in a manner that, among other things, would impose losses on shareholders, debt holders unsecured (including, in our case, the holders of our debt obligations, including the Notes) and other senior holding company creditors (in our case, Wells Fargo), while allowing subsidiaries to the holding company to continue to operate. Additionally, in December 2016, the FRB finalized rules requiring US G-SIBs, including Wells Fargo, to maintain minimum amounts of long-term debt and total loss-absorbing capacity (TLAC). It is possible that the application of the single entry point strategy – in which Wells Fargo would be the only legal entity to initiate resolution proceedings – could result in greater losses for the holders of our debt securities (including Notes) than the losses that result from a different resolution strategy for Wells Fargo. Assuming Wells Fargo enters resolution proceedings and Wells Fargo’s support of its subsidiaries is sufficient to allow the subsidiaries to remain solvent, losses at the subsidiary level could be transferred to Wells Fargo and ultimately