EXHIBIT 1(d)
XXXXX FARGO & COMPANY
Standard Terms Agreement
(Quarterly Income Preferred Securities)
, 1996
From time to time, Xxxxx Fargo & Company, a Delaware corporation (the
"Guarantor"), and each of Xxxxx Fargo Capital I ("WCF I"), Xxxxx Fargo Capital
II ("WCF II") or Xxxxx Fargo Capital III ("WCF III"), each a business trust
formed under the laws of the State of Delaware, may enter into one or more
underwriting agreements (each such agreement, an "Underwriting Agreement") that
provide for the sale of designated preferred securities to the several
underwriters (the "Underwriters") named therein.
The provisions hereof may be incorporated by reference in any
Underwriting Agreement. As used herein, the term "Trust" means the statutory
business trust named in the first sentence of the Underwriting Agreement. The
term "Agreement" means the Underwriting Agreement, including the provisions
hereof incorporated therein by reference. Unless otherwise defined herein, all
other defined terms have the meanings ascribed thereto in the Underwriting
Agreement.
I.
The Guarantor and each of WCF I, WCF II and WCF III propose that WCF
I, WCF II and WCF III, severally and not jointly, issue from time to time, in
one or more series, preferred securities (the "Securities") pursuant to the
provisions of the registration statement on Form S-3 filed on October 31, 1996,
as amended on December 3, 1996, Registration No. 333-15253. Such Securities may
be issued in amounts, at prices and other terms to be determined in light of
market conditions at the time of sale. The specific number of Securities, title
and liquidation preference of each Security, issuance price, distribution rate
or rates (or method of calculation), distribution periods, distribution payment
dates, redemption provisions, and any other specific terms of the Securities
shall be set forth in a prospectus supplement.
The Securities specified in Schedule I to the Underwriting Agreement
are the "Firm Securities." If specified in such Underwriting Agreement, the
Guarantor and the Trust may grant to the Underwriters the right to purchase at
their election an additional number of Securities specified in such Underwriting
Agreement as provided in Article II hereof (the "Optional Securities"). The Firm
Securities and the Optional Securities, if any, which the Underwriters elect to
purchase pursuant to Article II hereof are herein collectively called the
"Offered Securities."
The Guarantor and WCF I, WCF II and WCF III have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
in respect of the Securities, the Guarantee and the Junior
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Subordinated Debentures (collectively, the "Registered Securities"), including a
prospectus relating to the Registered Securities, and will file with, or mail
for filing to, the Commission a prospectus supplement specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933.
The term "Registration Statement" means the registration statement as amended to
the date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Offered Securities (the "Prospectus Supplement"), as filed with,
or mailed for filing to, the Commission pursuant to Rule 424. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities together with the Basic Prospectus. As used
herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
II.
The terms of the public offering of the Firm Securities are set forth
in the Prospectus.
The Guarantor and the Trust may specify in the Underwriting Agreement
applicable to any Securities that the Guarantor and the Trust thereby grant to
the Underwriters the right (an "Overallotment Option") to purchase at their
election up to the number of Optional Shares set forth in such Underwriting
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
the Manager to the Guarantor and the Trust, given within a period specified in
the Underwriting Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by the Manager but in no event earlier than the
first Closing Date or, unless the Manager, the Guarantor and the Trust otherwise
agree in writing, earlier than or later than the respective number of business
days after the date of such notice set forth in such Underwriting Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Underwriting Agreement applicable to such Securities shall be, in
each case, the number of Optional Securities which the Guarantor has been
advised by the Manager have been attributed to such Underwriter; provided, that,
if the
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Guarantor and the Trust has not been so advised, the number of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the number of Firm Securities to be purchased by such
Underwriter under such Underwriting Agreement bears to the aggregate number of
Firm Securities (rounded as the Manager may determine to the nearest 100
shares). The total number of Offered Securities to be purchased by all the
Underwriters pursuant to such Underwriting Agreement shall be the aggregate
number of Firm Securities set forth in Schedule I to such Underwriting Agreement
plus the aggregate number of Optional Securities which the Underwriters elect to
purchase.
III.
Payment for the Securities shall be made in federal (same day) funds
at the time, date and place set forth in the Underwriting Agreement, upon
delivery to the Manager (as defined in the Underwriting Agreement), through the
facilities of the Depository Trust Company ("DTC"), for the respective accounts
of the several Underwriters of the Securities. Each time and date of such
payment and delivery of the Securities is herein referred to as a "Closing
Date". The Trust will cause the certificates representing the Securities to be
made available for checking and packaging at least one day prior to the Closing
Date at the office of DTC or its designated custodian.
IV.
The several obligations of the Underwriters hereunder are subject, in
the discretion of the Manager, to the condition that all representations and
warranties and other statements of the Guarantor and the Trust in or
incorporated by reference in the Underwriting Agreement are, at and as of each
Closing Date, true and correct, the condition that the Guarantor and the Trust
shall have performed all of their respective obligations hereunder theretofore
to be performed, and to the following additional conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall have
been instituted or threatened, (ii) there shall have been no material
adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Trust or the Guarantor and
its subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, from that set forth in the Registration
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Statement or Prospectus as amended or supplemented to the Closing Date,
(iii) there shall not have occurred since the date of the applicable
Underwriting Agreement any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis, the effect of which makes it,
in the judgment of the Manager, impracticable to market the Offered
Securities or to enforce contracts for the sale of the Offered Securities
(iv) the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Guarantor as of the date of the
Underwriting Agreement shall not have been lowered since that date and no
rating agency shall have publicly announced that it has under surveillance
or review with possible negative implications, its ratings of any debt
securities of the Guarantor, the Manager shall have received, on the
Closing Date, a certificate, dated the Closing Date and signed by an
executive officer of the Guarantor and an officer or trustee of the Trust
with respect to clauses (i) and (ii) of this Article IV(a) and as to such
other matters as the Manager may reasonably request.
(b) The Manager shall have received on the Closing Date an opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Guarantor and the Trust,
dated the Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Manager shall have received on the Closing Date an opinion of
the Chief Counsel of the Guarantor, dated the Closing Date, to the effect
set forth in Exhibit B hereto.
(d) The Manager shall have received on the Closing Date an opinion of
Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date,
with respect to the validity of the Offered Securities and with respect to
such other legal matters relating to the Underwriting Agreement, the
Registration Statement and the Prospectus as the Manager shall reasonably
require.
(e) The Manager shall have received on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to the Manager,
from the Guarantor's independent public accountants, containing statements
and information of the type ordinarily included in the Guarantor's
accountants' "comfort letters" to underwriters with respect to the
financial statements
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and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
(f) The Trust Agreement, the Guarantee and the Indenture shall have
been duly authorized, executed and delivered, in each case in a form
reasonably satisfactory to the Manager.
(g) The Securities to be sold by the Trust at such time of delivery
shall have been duly listed, subject to notice of issuance, on The New York
Stock Exchange.
V.
In further consideration of the agreements of the Underwriters
contained in the Underwriting Agreement, the Guarantor and the Trust jointly and
severally covenant as follows:
(a) To furnish the Manager, without charge, two conformed copies of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and to each other Underwriter one
conformed copy of the Registration Statement without exhibits but including
any materials incorporated by reference therein and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as the Manager may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in the Underwriting
Agreement shall include all documents filed by the Guarantor with the
Commission subsequent to the date of the Basic Prospectus, pursuant to the
Securities Exchange Act of 1934, which are deemed to be incorporated by
reference into the Prospectus.
(b) To prepare the Prospectus as amended and supplemented in relation
to the applicable Offered Securities in a form approved by the Manager and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act of
1933 not later than the Commission's close of business on the second
business day following the execution and delivery of the Underwriting
Agreement relating to the applicable Offered Securities or, if applicable,
such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the
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Registration Statement or Prospectus as amended or supplemented after the
date of the Underwriting Agreement relating to such Securities and prior to
any Closing Date for such Securities which shall be disapproved by the
Manager for such Securities promptly after reasonable notice thereof; to
advise the Manger promptly of any such amendment or supplement after any
Closing Date for such Securities and furnish the Manager with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Guarantor pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
for so long as the delivery of a prospectus is required in connection with
the offering of sale of such Securities, and during such same period to
advise the Manager, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or additional information; and, in the event of the issuance of
any stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification
promptly to use its best efforts to obtain the withdrawal of such order.
(c) If, during such period after the first date of the public
offering of the Offered Securities, as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses the Manager shall furnish to
the Guarantor) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealer upon request,
either amendments or supplements to the Prospectus so that the
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statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate.
(e) To make generally available to its security holders as soon as
practicable an earnings statement covering a twelve-month period beginning
after the date of the Underwriting Agreement, which shall satisfy the
provisions of Section 11(a) of the Securities Act of 1933.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the last Closing Date for such
Offered Securities, the Guarantor and Trust will not offer, sell, contract
to sell or otherwise dispose of any Securities, any other beneficial
interest in the assets of the Trust, or any other securities of the Trust
or any other similar trust which are substantially similar to the Offered
Securities, including any guarantee of such securities, or any junior
subordinated debentures of the Guarantor issued to the Trust or other
similar trust, or any securities convertible into or exchangeable for or
representing the right to receive Securities, or any such substantially
similar securities of the Trust or any other similar trust, or any junior
subordinated debentures of the Guarantor issued to the Trust or other
similar trust, without the prior written consent of the Manager.
(g) In the case of the Guarantor, to issue the Guarantee and the
Junior Subordinated Debentures concurrently with the issue and sale of the
Offered Securities as contemplated herein.
(h) To use the net proceeds received by it from the sale of the
Junior Subordinated Debentures, and to cause the Trust to use the net
proceeds received by the Trust from the sale of Offered Securities
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pursuant to the Underwriting Agreement, in the manner specified in the
Prospectus under the caption "Use of Proceeds", and to further cause the
Trust to comply with the provisions of this Article V that are applicable
to it, including paragraph (f).
(i) To use its best efforts to list, subject to notice of issuance,
the Offered Securities on the New York Stock Exchange.
(j) To pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Guarantor's and the Trust's counsel and
accountants in connection with the registration of the Securities under the
Securities Act of 1933 and all other reasonable expenses in connection with
the preparation, printing and filing of the Registration Statement, any
preliminary prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the reasonable cost of typing any Agreement
among Underwriters, Underwriting Agreement and Blue Sky memorandum, closing
documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the
Securities; (iii) all reasonable expenses in connection with the
qualification of the Securities in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Article V(d) hereof, including fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky surveys; (iv) the cost or preparing certificates for the
Securities; (v) the cost and charges of any transfer agent or registrar or
distribution disbursement agent; and (vi) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Overallotment Options which are not otherwise specifically provided for in
this section. It is understood, however, that, except as provided in this
section, Article VI and Article IX, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes
on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
VI.
Each of the Guarantor and the Trust jointly and severally represents
and warrants to each Underwriter that:
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(a) The Registration Statement has been declared effective by the
Commission and no stop order suspending the effectiveness of such
Registration Statement have been issued and no proceeding for that purpose
has been initiated or threatened by the Commission.
(b)(i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934 and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects
with such Act and the rules and regulations thereunder, (ii) each part of
the Registration Statement (including the documents incorporated by
reference therein), filed with the Commission pursuant to the Securities
Act of 1933 relating to the Securities, when such part became effective,
did not contain any untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each preliminary prospectus, if
any, filed pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the applicable
rules and regulations thereunder, (iv) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and (v) the Registration
Statement and the Prospectus at the date of the Prospectus Supplement do
not contain and, as further amended or supplemented, if applicable, as of
their respective dates, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that these
representations and warranties do not apply to (x) that part of any
Registration Statement which constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939 of any trustee or (y) statements
or omissions in the Registration Statement, any preliminary prospectus or
the Prospectus based upon information furnished to the Guarantor in writing
by any Underwriter expressly for use therein.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as amended or supplemented,
except as may otherwise be stated therein or contemplated thereby, (i)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Guarantor and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business and (ii) there have been no
material transactions entered into
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by the Guarantor or any of its subsidiaries other than those in the
ordinary course of business.
(d) The Guarantor has been duly incorporated, is validly existing in
good standing under the laws of the State of Delaware, is duly registered
as a bank holding company under The Bank Holding Company Act of 1956, and
has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus,
except to the extent that the failure to have such corporate power and
authority would have a material adverse effect on the Guarantor and its
subsidiaries, considered as one enterprise.
(e) Xxxxx Fargo Bank, National Association ("Bank") continues to hold
a valid certificate to do business as a national banking association under
the laws of the United States, the Bank has all requisite corporate power
and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; all of the issued and outstanding
capital stock of the Bank has been duly and validly issued and is fully
paid and non-assessable (subject, however, to the provisions of Section 00,
Xxxxx 00, Xxxxxx Xxxxxx Code); and all of the capital stock of the Bank is
owned by the Guarantor, directly or indirectly, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Trust Agreement and the
Business Trust Act of the State of Delaware and has the trust power and
authority to own its properties and conduct its business as described in
the Prospectus, and the Trust has conducted no business to date, and it
will conduct no business in the future that would be inconsistent with the
description of the Trust set forth in the Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than the
Underwriting Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by the Underwriting Agreement and the Trust Agreement and
described in the Prospectus; based on expected operations and current law,
the Trust is not and will not be classified as an association taxable as a
corporation for United States federal income tax purposes; and the Trust is
not a party to or subject to any action, suit or proceeding of any nature.
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(g) The Offered Securities have been duly authorized by the Trust
Agreement and, when issued and delivered in accordance with the terms of
the Underwriting Agreement, the Trust Agreement and the Prospectus, will be
validly issued and, subject to the qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the assets of the
Trust under the Trust Agreement and the Delaware Business Trust Act and
will conform to the description of the Offered Securities contained in the
Prospectus; the issuance of the Offered Securities is not subject to any
preemptive or other similar rights; the Offered Securities will have the
rights set forth in the Trust Agreement; and the holders of Offered
Securities, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware, provided that the holders of Offered Securities may be
obligated, pursuant to the Trust Agreement, (a) to provide indemnity and/or
security in connection with any pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities Certificates (as
defined in the Trust Agreement) and the issuance of replacement Preferred
Securities Certificates and (b) to provide security and indemnity in
connection with requests of or directions to the Property Trustee (as
defined in the Trust Agreement) to exercise its rights and remedies under
the Trust Agreement..
(h) The Common Securities of the Trust to be sold to the Guarantor
have been duly authorized by the Trust Agreement, and, when issued in
accordance with the terms of the Trust Agreement and delivered to the
Guarantor against payment therefor as described in the Prospectus, will
represent validly issued undivided beneficial interests in the assets of
the Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Guarantor free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(i) The Guarantee, the Junior Subordinated Debentures, the Expense
Agreement and the Indenture (the Guarantee, the Junior Subordinated
Debentures, the Expense Agreement, the Trust Agreement and the Indenture
being collectively referred to as the "Guarantor Agreements") have each
been duly authorized and when validly executed and delivered by the
Guarantor will constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance
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with their respective terms, except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency, moratorium, reorganization,
arrangement, liquidation, conservatorship, readjustment of debt, fraudulent
transfer and other similar laws affecting the rights of creditors
generally; and (ii) the discretion of any court of competent jurisdiction
in awarding equitable remedies, including, without limitation,
acceleration, specific performance or injunctive relief, and the effect of
general principles of equity embodied in California, Delaware and New York
statutes and common law. The Junior Subordinated Debentures are entitled to
the benefits of the Indenture; and the Guarantor Agreements will conform to
the descriptions thereof in the Prospectus.
(j) The Trust Agreement has been duly authorized and when validly
executed and delivered by the Guarantor and the Administrative Trustees as
of the Closing Date will constitute a valid and binding obligation of the
Guarantor and the Administrative Trustees, enforceable in accordance with
its terms, subject to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors generally,
(ii) principals of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(k) The execution and delivery by the Trust of, and the performance
by the Trust of its obligations under the Underwriting Agreement and the
Trust Agreement do not violate (A) the Trust Agreement or the Certificate
of Trust of the Trust, (B) any applicable Delaware law, rule or regulation
or (C) any provision of applicable law of the State of California or the
United States; will not contravene any provision of applicable law, the
Trust Agreement, the certificate of incorporation or by-laws of the
Guarantor or articles of association of by-laws of the Bank or any
agreement or other instrument binding upon the Trust, the Guarantor or the
Bank that is material to the Trust or the Guarantor and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Trust; and no consent,
approval, authorization, order, license, certificate, permit, registration
or qualification of, or with, any governmental or regulatory body is
required for the performance by the Trust of its obligations under the
Underwriting Agreement or the Trust Agreement, except such as may be
required by the securities or Blue
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Sky laws of the various states in connection with the offer and sale of the
Offered Securities and Common Securities.
(l) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under the Underwriting
Agreement and the Guarantor Agreements, will not contravene any provision
of applicable law, the Trust Agreement, the certificate of incorporation or
by-laws of the Guarantor or articles of association or by-laws of the Bank
or any agreement or other instrument binding upon the Guarantor or the Bank
that is material to the Guarantor and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Guarantor or any subsidiary; and no consent,
approval, authorization or order of, or qualification with, any
governmental or regulatory body is required for the performance by the
Guarantor of its obligations under the Underwriting Agreement or the
Guarantor Agreements, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Junior Subordinated Debentures.
(m) Neither the Trust, the Guarantor nor the Bank is in violation of
its organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, which violation or default would be material to
the Trust or the Guarantor and its subsidiaries taken as a whole.
(n) The statements set forth in the Prospectus under the captions
"Regulatory Capital Benefits to Xxxxx Fargo & Company," "The Issuers,"
"Description of Junior Subordinated Debentures," "Description of Preferred
Securities," "Description of Guarantees," "Plan of Distribution" and such
other sections as may be identified in the Underwriting Agreement, are
accurate, complete and fair.
(m) The Trust is not, and after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus will not be an "investment company" that is
required to be registered under the Investment Company Act of 1940, as
amended, and the Guarantor is not, and after giving effect to the issuance
of the Junior Subordinated Debentures and the application of the proceeds
thereof as described in the Prospectus
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will not be an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended.
The Guarantor and the Trust agree, jointly and severally, to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act of
1933 or Section 20 of the Securities Exchange Act of 1934, from and against any
and all losses, claims, damages and liabilities (including the fees and expenses
of counsel in connection with any governmental or regulatory investigation or
proceeding) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (if used
within the period set forth in paragraph (c) of Article V hereof and as amended
or supplemented if the Guarantor shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Guarantor or the Trust by any Underwriter expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Guarantor and the Trust, each of their respective directors or
trustees, each of their officers who sign the Registration Statement and any
person controlling the Guarantor or the Trust to the same extent as the
foregoing indemnity from the Guarantor to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing to
the Guarantor or Trust by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel, related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
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at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Manager in the case of parties
indemnified pursuant to the second preceding paragraph and by the Guarantor or
the Trust in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VI is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Guarantor and the Trust on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Guarantor and the Trust on the one hand
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Guarantor and the Trust on the one hand and the Underwriters on the other
in connection with the offering of the Offered Securities shall be deemed to be
in the same proportion as the total net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Trust bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of the Guarantor and the Trust on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Guarantor and the Trust or by the Underwriters
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and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Guarantor, the Trust and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Article VI were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amounts paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VI, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten and
distributed to the public by such Underwriter were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several, in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Guarantor and the Trust in the
Underwriting Agreement shall remain operative and in full force and effect
regardless of (i) any termination of the Underwriting Agreement, (ii) any
investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Guarantor or the
Trust, each of their respective directors or by officers or any person
controlling the Guarantor or the Trust and (iii) acceptance of and payment for
any of the Offered Securities.
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VII.
The Underwriting Agreement shall be subject to termination by the
Manager, by notice given to the Guarantor, if, beginning on the date of the
applicable Underwriting Agreement and ending on the Closing Date or, in the case
of clause (i) below, since the respective dates as of which information is given
in the Registration Statement, as amended to the date of the applicable
Underwriting Agreement, (i) there has been any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Guarantor, the Trust
and their respective subsidiaries, taken as a whole, which makes it, in the
judgment of the Manager, impracticable to market the Offered Securities or
enforce contracts for the sale of the Offered Securities, (ii) there shall not
have occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change with
possible negative implications, in the rating accorded any of the Guarantor's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act of
1933, (iii) there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which makes it, in the judgment of the Manager, impracticable to market the
Offered Securities or enforce contracts for the sale of the Offered Securities,
(iv) trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited or (v) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or New
York state authorities.
VIII.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it or they have agreed to
purchase under the applicable Underwriting Agreement on such date, and the
aggregate number of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase is not more than one-tenth of the
aggregate number of Offered Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Offered Securities set forth opposite their respective names in the applicable
Underwriting Agreement bears to the aggregate number of Offered Securities set
forth opposite the names of all such non-defaulting Underwriters,
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or in such proportions as we may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Offered
--------
Securities that any Underwriter has agreed to purchase pursuant to the
applicable Underwriting Agreement on such date be increased pursuant to this
Article VIII by an amount in excess of one-ninth of such number of Offered
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities which it or they have agreed to purchase on such date and the
aggregate number of Offered Securities with respect to which such default occurs
is more than one-tenth of the aggregate number of Offered Securities to be
purchased on such date and arrangements satisfactory to us and you for the
purchase of such Offered Securities are not made within 36 hours after such
default, the Underwriting Agreement shall terminate without liability on the
part of any non-defaulting Underwriter, the Guarantor or the Trust. In any such
case either you or we shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under the Underwriting Agreement.
IX.
If the Underwriting Agreement shall be terminated by the Underwriters
or any of them, because of any failure or refusal on the part of the Guarantor
or the Trust to comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Guarantor or the Trust shall be
unable to perform its obligations under the Underwriting Agreement except
pursuant to Article VIII hereof, the Guarantor will reimburse the Underwriters
or such Underwriters as have so terminated the Underwriting Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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Exhibit A
Opinion of Xxxxxxx Phleger & Xxxxxxxx LLP,
Counsel to the Guarantor
The opinion of Xxxxxxx Phleger & Xxxxxxxx LLP, counsel to the Guarantor, to
be delivered pursuant to Article IV, paragraph (b) of the document dated
____________, 1996 entitled Xxxxx Fargo & Company Standard Terms Agreement
(Quarterly Income Preferred Securities) shall be to the effect that:
(i) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
Delaware with the power and authority to own its properties and conduct its
businesses as described in the Prospectus.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Guarantor and the Trust and is a valid and binding
agreement of the Guarantor and the Trust.
(iii) The Offered Securities have been duly authorized by the Trust
Agreement and, when issued and delivered in accordance with the terms of the
Underwriting Agreement, the Trust Agreement and the Prospectus, will be
validly issued and, subject to the qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the assets of Trust
under the Trust Agreement and the Delaware Business Trust Act; the issuance
of such Offered Securities will not be subject to any preemptive or other
similar rights; and the holders of the Offered Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of liability
extended to stockholders of private corporations for profit under the General
Corporation Law of the State of Delaware; provided that such counsel may note
that the holders of Offered Securities may be obligated, pursuant to the
Trust Agreement, (a) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers in connection
with and pay taxes or governmental charges arising from transfers or
exchanges of Preferred Securities Certificates (as defined in the Trust
Agreement) and the issuance of replacement Preferred Securities Certificates
and (b) to provide security and indemnity in connection with requests of or
directions to the Property Trustee (as defined in the Trust Agreement) to
exercise its rights and remedies under the Trust Agreement.
(iv) The Common Securities of the Trust to be sold to the Guarantor
have been duly authorized by the Trust Agreement and, when issued in
accordance with the terms of the Trust Agreement and delivered to the
Guarantor against
payment therefor as described in the Prospectus, will represent validly
issued undivided beneficial interests in the assets of the Trust. Under the
Trust Agreement and the Delaware Business Trust Act, the issuance of the
Trust Common Securities is not subject to preemptive or other similar rights.
(v) The Guarantee, the Junior Subordinated Debentures, the Expense
Agreement and the Indenture have each been duly authorized, executed and
delivered by the Guarantor and each is a valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
moratorium, reorganization, arrangement, liquidation, conservatorship,
readjustment of debt, fraudulent transfer and other similar laws affecting
the rights of creditors generally; and (ii) the discretion of any court of
competent jurisdiction in awarding equitable remedies, including, without
limitation, acceleration, specific performance or injunctive relief, and the
effect of general principles of equity embodied in California, Delaware and
New York statutes and common law. The Junior Subordinated Debentures are
entitled to the benefits of the Indenture.
(vi) The Trust Agreement has been duly authorized, executed and
delivered by the Guarantor and the Administrative Trustees and is a valid and
binding obligation of the Guarantor and the Administrative Trustees,
enforceable in accordance with its terms, subject to the effect upon the
Trust Agreement of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principals of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (ii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
(vii) The execution and delivery by the Trust of, and the performance
by the Trust of its obligations under, the Underwriting Agreement and the
Trust Agreement do not violate (A) the Trust Agreement or the Certificate of
Trust of the Trust, (B) any applicable Delaware law, rule or regulation or
(C) any provision of applicable law of the State of California or the United
States. No authorization, consent or approval of or filing with any
governmental or regulatory body is required for the performance by the Trust
of its obligations under the Underwriting Agreement or Trust Agreement,
except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Offered Securities and Common Securities.
A-2
(viii) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under the Underwriting
Agreement, the Trust Agreement, the Guarantee, the Indenture and the Junior
Subordinated Debentures, will not contravene any provision of applicable law
of the State of California, the United States, the General Corporate Law or
Business Trust Act of the State of Delaware or the Trust Agreement, or the
certificate of incorporation or by-laws of the Grantor or articles of
association or by-laws of the Bank. No authorization, consent or approval of
or filing with any governmental or regulatory body is required for the
performance by the Grantor of its obligations under the Underwriting
Agreement, the Trust Agreement, the Guarantee, the Indenture, the Expense
Agreement or the Junior Subordinated Debentures, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Junior Subordinated Debentures.
(ix) The statements in the Prospectus under the captions "The
Issuers," "Description of Junior Subordinated Debentures," "Description of
Preferred Securities," "Description of Guarantees," "Plan of Distribution"
and such other sections as may be identified in the Underwriting Agreement,
insofar as such statements constitutes a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize the matters
referred to therein.
(x) Neither the Guarantor nor the Trust is, and after giving effect
to the issuance of the Offered Securities, Common Securities and the Junior
Subordinated Debentures and the application of the proceeds thereof as
described in the Prospectus, neither the Guarantor nor the Trust will be an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended.
(xi) For United States federal income tax purposes, the Trust will
be classified as a grantor trust and not as an association taxable as a
corporation and, accordingly, each holder of Offered Securities will
generally be considered the owner of an undivided interest in the Junior
Subordinated Debentures, and each holder will be required to include in its
gross income any interest and original issue discount accrued with respect to
its allocable share of those Debenture.
(xii) Although the discussion, if any, set forth in the Prospectus
Supplement under the heading "Certain Federal Income Tax Consequences" does
not purport to discuss all possible United States federal income tax
consequences of the purchase, ownership and disposition of the Offered
Securities, in such counsel's opinion such discussion constitutes, in all
A-3
material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership and disposition of the
Offered Securities under current law.
(xiii) The Registration Statement is effective under the Securities
Act of 1933, as amended, and to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened under Section 8(d) of
said Act.
(xiv) Such counsel (1) believes that each document, if any, filed
pursuant to the Exchange Act (except as to financial statements, schedules
and other related information included therein as to which such counsel need
to express any belief) and incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the
Securities Exchange Act of 1934, as amended, and the applicable rules and
regulations of the Securities and Exchange Commission thereunder, (2) has no
reason to believe (except as to financial statements, schedules and other
related information included therein as to which such counsel need not
express any belief) that any part of the registration statement (including
the documents incorporated by reference therein) filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, when such
part became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (3) believes that the
Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements or other financial information
included therein, as to which such counsel need not express any belief)
comply as to form in all material respects with the Securities Act of 1933
and the applicable rules and regulations thereunder and (4) has no reason to
believe that (except as to financial statements or other financial
information included therein, as to which such counsel need not express any
belief) the Registration Statement and the Prospectus on the date of the
Prospectus Supplement did, and the Prospectus, as amended or supplemented, if
applicable, on such Closing Date does, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
With respect to the opinions set forth in (i) and (iii) above, and
with respect to matters relating to the authority and validity of the Trust and
the agreements and obligations thereof under Delaware law in (ii), (iv), (vi)
and (vii) above, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may state that their opinion in
connection with such matters is made in reliance on the opinion of Delaware
counsel. With respect to the matters set forth in (xiv) above, Xxxxxxx Phleger
& Xxxxxxxx LLP
A-4
may state that their belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and any
amendments and supplements thereto and review and discussion of the contents
thereof, but is without independent check or verification, except as specified.
A-5
Exhibit B
Opinion of the Chief Counsel to the Guarantor
The opinion of the Chief Counsel to the Guarantor, to be delivered
pursuant to Article IV, paragraph (c) of the document dated ___________, 1996
entitled Xxxxx Fargo & Company Standard Terms Agreement (Quarterly Income
Preferred Securities) shall be to the effect that:
(i) The Guarantor has been duly incorporated, is validly existing
in good standing under the laws of the State of Delaware, is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended, and has all requisite corporate power and authority to
own its property and to conduct its business as described in the
Prospectus.
(ii) The Bank continues to hold a valid certificate to do business
as a national banking association under the laws of the United States, the
Bank has the corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; all of
the issued and outstanding capital stock of the Bank has been duly and
validly issued and is fully paid and non-assessable (subject, however, to
the provisions of Section 00, Xxxxx 00, Xxxxxx Xxxxxx Code); and all of the
capital stock of the Bank is owned by the Guarantor, directly or
indirectly, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity.
(iii) To the best knowledge and information of such counsel, there
are no contracts, indentures, mortgages, loan agreements, leases or other
documents of a character required to be described or referred to in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement other than those specifically described or referred
to therein or filed as exhibits thereto or to materials incorporated by
reference therein, and the description thereof or reference thereto was
correct at the date that the document incorporated by reference in the
Registration Statement or Prospectus which contains such description or
reference was filed with the Commission or, if not so incorporated by
reference is correct, provided, however, that such counsel need not express
any opinion regarding such documents to the extent that they are required
to be described or referred to in the financial statements or other
financial information but not otherwise in the Registration Statement or
Prospectus.
(iv) The statements as to matters of law or legal conclusions
contained under the caption "Supervision and Regulation" in the Guarantor's
latest annual report on form 10-K which is incorporated by reference in the
Prospectus were correct as of the date such report was filed with the
B-1
Commission, and such statements fairly present the matters referred to in
such report.
B-2
