Xxxxx Fargo & Company
Common Stock, par value $5.00
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October 12, 1998
Xxxxxxx, Xxxxx & Co.
As representative of the Underwriters
named in Schedule I hereto,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Fargo & Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 2,500,000 shares (the "Shares") of common stock, par value $5.00 per share
("Stock"), of the Company.
The Company has entered into an Agreement and Plan of Merger, dated as
of June 7, 1998, and amended and restated as of September 10, 1998 (the "Merger
Agreement"), by and among the Company, Norwest Corporation, a Delaware
corporation ("Norwest"), and WFC Holdings Corporation, a Delaware corporation
and a wholly-owned subsidiary of Norwest ("Merger Sub"), which provides for the
merger of the Company with and into Merger Sub with Merger Sub as the surviving
corporation (the "Merger"). Subject to the terms and conditions of the Merger,
at the effective time of the Merger each outstanding share of the Company's
Stock will be converted into the right to receive ten shares of common stock,
par value $1-2/3 per share, of Norwest (the "Norwest Shares"). In connection
with the Merger, Norwest has filed a Registration Statement on Form S-4 (No.
333-63247), including the Joint Proxy Statement/Prospectus contained therein
(the "Merger Registration Statement"), which is incorporated by reference in the
Registration Statement and Prospectus (each as hereinafter defined). The Company
understands that Norwest will enter into an agreement in substantially the form
of Xxxxx XX hereto (the "Norwest Agreement") with you as a condition to entry
into this Agreement. For purposes of this Agreement, following consummation of
the Merger, Norwest shall be deemed a successor of the Company and the term
"Company" as used herein shall refer to and mean Norwest, as renamed "Xxxxx
Fargo & Company" (it being understood, for the avoidance of doubt, that any
obligations recited herein as obligations of the Company shall, after
consummation of the Merger, be deemed obligations of Norwest as the direct
parent company of the corporation surviving the Merger).
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-10469), and
Post-Effective Amendment No. 1 thereto (together, the "Initial Registration
Statement"), in respect of the Shares has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained
therein, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed with the Commission (other than a preliminary
prospectus filed pursuant to Rule 424 of the rules and regulations of the
Commission under the Act); and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424 of the rules
and regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the documents incorporated by reference in
the prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective, each as
amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; and the prospectus relating to the Shares, as
amended or supplemented, in the form of a final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, is hereinafter called the "Prospectus"; and any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company and Norwest filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Initial Registration Statement that is incorporated by
reference in the Registration Statement);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions (i) made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein or (ii) relating to Norwest
or its business, operations, financial condition or prospects;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, complied in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an 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; and any
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further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will comply
in all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
(i) made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein or (ii) relating to Norwest or its business,
operations, financial condition or prospects;
(d) The Registration Statement complies, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will comply, in all material respects with the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an 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; provided, however, that this representation and
warranty shall not apply to (i) that part of the Registration Statement
which constitutes a Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended, of any trustee or (ii) any statements or
omissions (x) made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein or (y) relating to Norwest or its
business, operations, financial condition or prospects;
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there has not been any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, or business prospects of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus and (ii) neither the Company nor any of its subsidiaries
has entered into any material transactions except in the ordinary course of
business;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, with all requisite corporate power and authority
to own its properties and conduct its business as described in the
Prospectus, except to the extent that the failure to have such corporate
power and authority is not reasonably likely to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
Xxxxx Fargo Bank, N.A. has been duly organized and is validly existing as a
national banking association under the Federal laws of the United States
and continues to hold a valid certificate to do business as such and has
all requisite power and authority to conduct its business as such; and
Xxxxx Fargo Bank, N.A. is the only "significant subsidiary" of the Company
(within the meaning of Rule 1-02 of the Commission's Regulation S-X) as of
the date hereof;
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(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, and are fully paid and
non-assessable; and all of the issued shares of capital stock of Xxxxx
Fargo Bank, N.A. have been duly and validly authorized and issued, are
fully paid and non-assessable (subject, however, to the provisions of
Section 55, Title 12, of the United State Code) and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(h) The Shares to be issued and sold by the Company to the Underwriters
hereunder will be newly issued (as opposed to treasury shares) and have
been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable;
(i) The issue and sale of the Shares by the Company hereunder and the
compliance by the Company with all of the provisions of this Agreement and
the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject that is material to
the Company and its subsidiaries, taken as a whole, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state or foreign securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(j) Neither the Company nor Xxxxx Fargo Bank, N.A. is in violation of
its Certificate of Incorporation or By-laws; and neither the Company nor
Xxxxx Fargo Bank, N.A. is 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 default would, either individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(k) The statements set forth in the Prospectus under the captions
"Description of Capital Stock" and "Description of Common Stock", insofar
as they purport to constitute a summary of the terms of the Stock, and
under the captions "Plan of Distribution" and "Underwriting", accurately
summarize the matters referred to therein;
(l) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the best knowledge
of the Company, threatened to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is reasonably likely, either individually or in the aggregate,
to have a material adverse effect on the current or future consolidated
financial position or business of the Company and its subsidiaries, taken
as a whole;
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(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(n) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) The Merger Agreement has been duly authorized, executed and
delivered by the Company; the Company has no current intent (and has no
knowledge of any current intent on the part of Norwest) to terminate the
Merger Agreement or otherwise not to consummate the transactions
contemplated thereby; and neither the Company nor, to the best knowledge of
the Company, Norwest or Merger Sub, is in breach or violation in any
material respect of any of its respective representations, warranties or
any covenants or agreements on its part to be performed under the Merger
Agreement; and
(p) The Company has reviewed its operations and that of its
subsidiaries and is currently reviewing any third parties with which the
Company or any of its subsidiaries has a material relationship to evaluate
the extent to which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result of such
review completed to the date hereof, except as disclosed in the Prospectus,
the Company does not believe, that the Year 2000 Problem will have a
material adverse effect on the condition, financial or otherwise, or in the
earnings, business affairs, or business prospects of the Company and its
subsidiaries, taken as a whole; provided, however, that the Company makes
no representation or warranty regarding any Year 2000 Problem attributable
to telephone systems and other utilities or any government or government
authority. The "Year 2000 Problem" as used herein means any significant
risk that computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical systems
of any kind will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $303.75, the number of Shares set forth opposite
the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Shares, the
several Underwriters propose to offer the Shares for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Xxxxxxx, Xxxxx & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) at the
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office of DTC or its designated custodian (the "Designated Office"). The time
and date of such delivery and payment shall be 9:30 a.m., New York City time, on
October 15, 1998 or such other time and date as Xxxxxxx, Xxxxx & Co. and the
Company may agree upon in writing. Such time and date are herein called the
"Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(j) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
the Time of Delivery. A meeting will be held at the Closing Location at 4:00
p.m., New York City time, on the New York Business Day next preceding the Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 424(b) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus
prior to the Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, 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 and to furnish you with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Shares (it being understood, for the avoidance of doubt, that,
if such filing obligations shall continue, and such delivery of a
prospectus is required after consummation of the Merger, any such report or
definitive proxy or information statement required to be so filed with the
Commission shall be that of Norwest, as the direct parent company of Merger
Sub); to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, 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 for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
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(c) Prior to 10:00 A.M. New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify
you and, if the Company fails to make such filing within a reasonable time,
upon your reasonable request to file such document (provided that the
Company may file any such document even if it fails to notify you) and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in case
any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time
of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act (it being understood, for the avoidance of
doubt, that any such documents required to be so filed after the
consummation of the Merger may be that of Norwest, as the direct parent
company of Merger Sub);
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Company,
Rule 158) (it being understood, for the avoidance of doubt, that any such
earnings statement made available after the consummation of the Merger
shall be that of Norwest, as the direct parent company of Merger Sub, and
its subsidiaries);
(e) During the period beginning from the date hereof and continuing to
and including 45 days after the date of the Prospectus, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, (x)
any securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Shares or any
such substantially similar securities (other than pursuant to employee
stock option plans or dividend reinvestment plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), or (y) any Norwest Shares
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Norwest Shares or
any such substantially similar securities (other than any such securities
to be issued (1) in the Merger, (2) in connection with dividend
reinvestment and direct purchase plans, director and employee benefit and
stock option plans and compensation arrangements in effect from time to
time, or (3) pursuant to such events, situations or circumstances described
as excepted or permitted in Section 5.2(b) of the Merger Agreement) without
your prior written consent;
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(f) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds"; and
(g) To use its best efforts to list, subject to notice of issuance, the
Shares on the New York Stock Exchange (the "NYSE").
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
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 cost of typing or copying any
Agreement among Underwriters, this Agreement, the Norwest Agreement, the Blue
Sky Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NYSE;
and (v) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make. It being further understood, that as between the
Company and any service provider (other than the Underwriters) this Section 6 is
not intended to foreclose the Company from asserting that any charges submitted
by any such service provider are unreasonable or incorrect.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at the Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein and of Norwest in the Norwest Agreement are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated the Time of
Delivery, with respect to the validity of the Shares, the Registration
Statement, the Prospectus as well as such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
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(c) Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, and Xxx
Xxxxxxxxxxx, Xx., Chief Counsel of the Company, shall have furnished to you
their respective written opinions, dated the Time of Delivery, covering the
matters set forth below.
(A) The opinion of Xxx Xxxxxxxxxxx, Xx. will be to the effect
that:
(i) All of the issued shares of capital stock of the Company
(other than the Shares) have been duly and validly authorized and
issued and are fully paid and nonassessable;
(ii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and 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 properties and conduct its
business as described in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of failure to
be so qualified in any such jurisdiction;
(iv) Xxxxx Fargo Bank, N.A. is duly organized and validly existing
as a national banking association under the Federal laws of the United
States, continues to hold a valid certificate to do business as such
and has all requisite power and authority to conduct its business as
such; all of the issued shares of capital stock of Xxxxx Fargo Bank,
N.A. have been duly and validly authorized and issued, are fully paid
and non-assessable (subject, however, to Section 55 of Title 12 of the
United States Code) and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is reasonably likely, either individually or in the
aggregate, to have a material adverse effect on the current or future
consolidated financial position or business of the Company and its
subsidiaries, taken as a whole;
(vi) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions contemplated herein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (1) the Certificate of
Incorporation or By-laws of the Company or (2) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject which, in the case of clause (2), is reasonably likely ,
either individually or in the aggregate, to be material to the Company
and its subsidiaries, taken as a whole;
-9-
(vii) Such counsel does not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required; and
(viii) The Merger Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery on the part of Norwest and Merger Sub, constitutes a valid and
legally binding agreement of the Company in accordance with its terms;
(B) The opinion of Xxxxxx Xxxx & Xxxxxxxx, LLP will be to the
effect that:
(i) The Company has an authorized capitalization as set forth in
the Prospectus, the Shares have been duly and validly authorized by the
Company, and when issued and delivered in accordance with the terms of
this Agreement, will be fully paid and non-assessable;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions contemplated herein will not
result in any violation of any United States Federal (other than
Federal securities laws, as to which such counsel need express no
opinion except as otherwise set forth herein) or State of California
law (other than such state's securities laws, as to which such counsel
need express no opinion) applicable to the Company or the General
Corporation Law of the State of Delaware;
(iv) No consent, approval, authorization, order, registration or
qualification (1) of or with any such United States Federal or State of
California court or governmental agency or body or (2) under the
General Corporation Law the State of Delaware is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the approval of the
Company's Board of Directors (which has been obtained), the
registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters;
(v) The statements set forth in the Prospectus under the captions
"Description of Capital Stock" and "Description of Common Stock",
insofar as they purport to constitute a summary of the terms of the
Shares, and under the captions "Plan of Distribution" and
"Underwriting", accurately summarize the matters referred to therein;
-10-
(vi) The Company is not, after giving effect to the issuance of
the Shares and the application of the proceeds thereof as described in
the Prospectus, an "investment company", as such term is defined in the
Investment Company Act;
(vii) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto prior to the Time of
Delivery (other than the financial statements, financial schedules and
other financial information included therein, as to which such counsel
need express no belief or opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents (other than the financial statements, financial schedules and
other financial information included therein, as to which such counsel
need express no belief or opinion), when such documents became
effective or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the Act, an
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, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(viii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made prior to the Time of
Delivery (other than the financial statements, financial schedules and
other financial information included therein, as to which the counsel
need express no belief or opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder, although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (v) of this Section 7(c); they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made prior to the Time of
Delivery (other than the financial statements, financial schedules and
other financial information included therein, as to which the counsel
need express no belief or opinion) contained an 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 or
that, as of its date, the Prospectus or any further amendment or
supplement thereto made prior to the Time of Delivery (other than the
financial statements, financial schedules and other financial
information included therein, as to which such counsel need express no
belief or opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made prior to the Time of Delivery (other than the
financial statements, financial schedules and other financial
information included therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
-11-
(d) Xxxxxxx X. Xxxxxx, General Counsel of Norwest, shall have furnished
to you his written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect set forth in Annex B to the
Norwest Agreement;
(e) At the Time of Delivery, the independent accountants of the Company
and Norwest who have certified the financial statements of the Company and
its subsidiaries and Norwest and its subsidiaries, respectively, included
or incorporated by reference in the Registration Statement shall have
furnished to you a letter or letters, dated the date of delivery thereof,
in the form set forth in Annex I hereto;
(f) Since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries, taken as a whole, or Norwest and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at the Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the NYSE; (ii) a suspension or material limitation
in trading in the securities of the Company or Norwest on the NYSE; (iii) a
general moratorium on commercial banking activities declared by either
Federal or California, Minnesota or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in your judgment
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares being delivered at such Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
(h) The Shares to be sold at the Time of Delivery shall have been duly
listed, subject to notice of issuance, on the NYSE;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(j) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section, with respect to the Company and
its subsidiaries in the case of subsection (f);
(k) Norwest shall have furnished or caused to be furnished to you at
such Time of Delivery the certificates required under Section 2(d) of the
Norwest Agreement;
(l) No termination of the Merger Agreement or failure of any condition
to the consummation of the Merger shall have occurred or, to the knowledge
of the Company and Norwest, is expected to occur; and no event shall have
occurred or, to the knowledge of the Company and Norwest, has occurred or
is expected to occur that would permit termination of the Merger Agreement
and abandonment of the Merger pursuant to Section 8.1 thereof;
-12-
(m) No stop order suspending the effectiveness of the Merger
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been threatened or initiated by the
Commission;and
(n) The Board of Governors of the Federal Reserve System shall have
approved the Merger at its meeting on October 14, 1998, which approval may
be subject to conditions except those conditions that in your reasonable
judgment are so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at the Time of Delivery on the terms and in the
manner contemplated in the Prospectus.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the 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 for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred or (ii) the failure of any person which is a stockholder of the Company
or Norwest and to whom any communication is made in connection with the offering
of the Shares, which communication may be deemed a "solicitation" of a "proxy"
(each as defined in Regulation 14A under the Exchange Act), to have first been
supplied with a proxy statement meeting the requirements of Schedule 14A, as
required by the applicable rules and regulations of the Securities and Exchange
Commission; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement (i) in reliance upon and
in conformity with written information furnished to the Company by (x) any
Underwriter through Xxxxxxx, Xxxxx & Co. or (y) Norwest expressly for use
therein or (ii) resulting from Norwest documents incorporated therein by
reference; and provided further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Shares to a person as to whom it shall be established that there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
in any case where such delivery is required by the Act if the Company has
previously furnished copies thereof in sufficient quantity to such Underwriter
and the loss, claim, damage or liability of such Underwriter has resulted from
an untrue statement or omission of a material fact contained in the Preliminary
Prospectus which was identified in writing at such time to such Underwriter and
corrected in the Prospectus (excluding documents incorporated by reference) or
in the Prospectus as then amended or supplemented (excluding documents
incorporated by reference).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required
-13-
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
The indemnifying party shall not be liable for any settlement 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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
-14-
actions in respect thereof), as well as any other relevant equitable
considerations (including the failure of the indemnified party to give the
notice required under subsection (c) above). The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault 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 Company on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d)
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 above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include, subject to the limitations set forth in this
Section 8, 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 subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company)
and to each person, if any, who controls the Company within the meaning of
the Act.
(f) The terms "Underwriter" and "you" as used in this Section 8 shall
also include Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx Xxxxxx Inc.
and Xxxx Xxxxxxxx Xxxxxxx, a division of Xxxx Xxxxxxxx Incorporated, and
such persons shall be deemed third party beneficiaries of the provisions of
this Section 8.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at the Time of Delivery,
and if the aggregate number of such Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the Shares to be purchased at
the Time of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at the Time of Delivery and, in
addition, to require each
-15-
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(b) If at the Time of Delivery any Underwriter shall fail or refuse to
purchase the Shares it has agreed to purchase hereunder and the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at the Time of Delivery,
or if the Company shall not exercise the right described in subsection (a)
above to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters and arrangements satisfactory to you
and the Company for the purchase of such Shares are not made within 36
hours after such default, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 7(g)(i),
(iii) or (iv) or Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason, the Shares are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at 00 Xxx Xxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
-16-
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement, except as
expressly provided in Section 8(f). No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
-17-
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Xxxxx Fargo & Company
By: /s/ XXXX XXXX
....................................
Name: Xxxx Xxxx
Title: EVP & Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ XXXXXXX, XXXXX & CO.
..............................
(Xxxxxxx, Xxxxx & Co.)
On behalf of the Underwriters
-18-
SCHEDULE I
TOTAL NUMBER OF
SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxxx, Xxxxx & Co.......................................... 2,500,000
-19-
ANNEX I
[Form of "comfort letter"]
ANNEX II
NORWEST CORPORATION
October 12, 1998.
Xxxxxxx, Xxxxx & Co.,
As Representative of the
Underwriters named in the Underwriting Agreement
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentleman:
In connection with the proposed issuance and sale by Xxxxx Fargo & Company
("Xxxxx Fargo") of the Shares, specified in that certain Underwriting Agreement
of even date herewith relating to the purchase and distribution by the
Underwriters of the Shares (the "Underwriting Agreement"), and as an inducement
to you to enter into the Underwriting Agreement, this will confirm our agreement
with you as set forth below. Capitalized terms used herein without definition
have been defined in the Underwriting Agreement.
1. Representations and Warranties.
-------------------------------
(a) Norwest Corporation ("Norwest") represents and warrants to you
that, as of the date hereof and as of each Time of Delivery of the
Shares, the statements contained in Annex A are true and correct.
References therein to "Norwest Shares" shall be deemed to refer to the
shares of common stock, par value $1-2/3 per share, of Norwest issuable
in exchange for the Shares upon consummation of the Merger; and
(b) In addition, Norwest further represents and warrants to you
that as of the date hereof and as of each Time of Delivery of the
Shares: (i) the Merger Registration Statement has been declared
effective under the Act and no stop order suspending the effectiveness
of the Merger Registration Statement or any part thereof has been
issued and no proceedings for such purpose have been threatened or
initiated by the Commission; (ii) the Merger Registration Statement, at
the time it became effective, and the Joint Proxy Statement/Prospectus,
in definitive form, contained therein, at the time it was filed with
the Commission, complied in all material respects with the requirements
of the Act and the rules and regulations of the Commission thereunder;
(iii) the Merger Registration Statement, at the time it became
effective, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Joint
Proxy Statement/Prospectus, at the time it was filed with the
Commission, and as of the date hereof, did not contain an 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; provided,
however, that the representations and warranties in this sentence
shall not apply to statements in or omissions from the Merger
Registration Statement or Joint Proxy Statement/Prospectus resulting
from Xxxxx Fargo documents incorporated therein by reference or made in
reliance upon and in conformity with information furnished to Norwest
in writing by Xxxxx Fargo expressly for use in the Merger Registration
Statement or Joint Proxy Statement/Prospectus; and (iv) KPMG Peat
Marwick LLP, who have certified certain financial statements of Norwest
and its subsidiaries, are independent public accountants as required by
the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder.
2. Covenants. Norwest agrees with each Underwriter participating in the
offering of the Shares:
(a) To file promptly all reports and any definitive proxy or
information statements required to be filed by Norwest with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Shares;
(b) During the period beginning on the date hereof and continuing
to and including 45 days after the date of the Prospectus not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, (x) any securities of Xxxxx Fargo that are substantially
similar to the Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right
to receive, Shares or any such substantially similar securities or (y)
any Norwest Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right
to receive, Norwest Shares or any such substantially similar securities
(other than any such securities to be issued (1) in the Merger, (2) in
connection with dividend reinvestment and direct purchase plans,
director and employee benefit and stock option plans and compensation
arrangements in effect from time to time, or (3) pursuant to such
events, situations or circumstances described as excepted or permitted
in Section 5.2(b) of the Merger Agreement) without your prior written
consent;
(c) To furnish or cause to be furnished to you at the Time of
Delivery of the Shares the written opinion, dated the Time of Delivery,
of Xxxxxxx X. Xxxxxx, Esq., Executive Vice President and General
Counsel of Norwest, in form and substance reasonably satisfactory to
you, to the effect set forth in Annex B hereto;
(d) To furnish or cause to be furnished to you at the Time of
Delivery of the Shares certificates of officers of Norwest reasonably
satisfactory to you as to the accuracy of the representations and
warranties of Norwest herein at and as of the Time of Delivery, as to
the performance by Norwest of all of its obligations under this
Agreement to be performed at or prior to the Time of Delivery, and as
to the matters set forth in Section 7(f) (but only with respect to
Norwest and its subsidiaries) and Section 7(m) of the Underwriting
Agreement; and
(e) Following consummation of the Merger, to observe, comply with
and perform the obligations of the Company under the Underwriting
Agreement, as successor to the Company as provided in the Underwriting
Agreement.
-2-
3. Indemnification and Contribution.
(a) Norwest agrees to indemnify and hold you harmless against, and
to contribute to any payments the Underwriters may be required to make
in respect of, any and all losses, claims, damages or liabilities
described in Section 8 of the Underwriting Agreement on the same terms,
and subject to the same conditions (except for clause (i)(y) and clause
(ii) in the first proviso in Section 8(a) of the Underwriting
Agreement), as set forth therein with respect to Xxxxx Fargo's
obligations to each Underwriter, but, in the case of Section 8(a)(i)
thereof, only with respect to statements in or omissions from the
Registration Statement or Prospectus as amended or supplemented (i)
resulting from Norwest documents incorporated therein by reference (the
"Norwest Documents") or (ii) made in reliance upon and in conformity
with information furnished to Xxxxx Fargo in writing by Norwest
expressly for use in the Prospectus;
(b) The obligations of Norwest under this Section 3 shall be in
addition to any liability which Norwest may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act.
4. Survival. The indemnities, agreements, representations, warranties and
other statements of Norwest set forth in this Agreement or made by or on behalf
of Norwest pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or Norwest, or any officer or director or controlling person of
Norwest, or Xxxxx Fargo, or any officer or director or controlling person of
Xxxxx Fargo, and shall survive delivery of and payment for the Shares.
5. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address set forth in Section 12 of
the Underwriting Agreement; and if to Norwest shall be delivered or sent by
mail, telex or facsimile transmission to Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-1026, attention of Xxxxxxx X. Xxxxxx, facsimile
(000) 000-0000; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) of the Underwriting Agreement shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
6. Parties. This Agreement shall be binding solely upon the parties hereto,
and inure solely to the benefit of, the Underwriters and Norwest and, to the
extent provided in Sections 3 and 4 hereof, the officers and directors of
Norwest and each person who controls Norwest or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts. This Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
-3-
If the foregoing is in accordance with your understanding, please sign and
return to us ten counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the Annexes hereto, shall constitute a binding agreement between each
of the Underwriters and Norwest. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to Norwest for examination, upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
Norwest Corporation
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Accepted as of the date
first above written:
Xxxxxxx, Xxxxx & Co.
By: /s/ XXXXXXX, XXXXX & CO.
.............................
(Xxxxxxx, Xxxxx & Co.)
On behalf of the Underwriters
-4-
ANNEX A
Norwest represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof and as of the Time of Delivery of the Shares
that:
(a) The Norwest Documents, as of the date they became effective or were
filed with the Commission, as the case may be, complied in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and as of such date or
dates, none of such documents contained an 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; and any further documents so
filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will comply in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an 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;
(b) The Registration Statement and the Prospectus do not and will not, as
of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an 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; provided, however, that this
representation and warranty shall only apply to statements or omissions (i)
relating to Norwest or its business, operations, financial condition or
prospects or (ii) made in reliance upon and in conformity with information
furnished to Xxxxx Fargo in writing by Norwest expressly for use in the
Registration Statement and Prospectus;
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there has not been any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs, or business prospects of Norwest and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus and
(ii) neither Norwest nor any of its subsidiaries have entered into any material
transactions except in the ordinary course of business;
(d) Norwest has been duly incorporated, is validly existing as a corporation
in good standing under the laws of Delaware and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended, and has
all requisite power and authority to own its properties and conduct its business
as described in the Prospectus except to the extent that the failure to have
such corporate power and authority would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(e) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the best knowledge of Norwest,
threatened to which Norwest or any of its subsidiaries is a party or of which
any property of Norwest or any of its subsidiaries is reasonably likely, either
individually or in the aggregate, to have a material adverse effect on the
current or future consolidated financial position or stockholders' equity of
Norwest and its subsidiaries, taken as a whole;
(f) Norwest is not in violation of its Certificate of Incorporation or
By-laws, and neither Norwest nor any of its subsidiaries is 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 default would, either individually or in the aggregate, have a
material adverse effect on Norwest and its subsidiaries, taken as a whole;
(g) This Agreement has been duly authorized, executed and delivered by
Norwest;
(h) The Merger Agreement has been duly authorized, executed and delivered
by Norwest; Norwest has no current intent (and has no knowledge of any current
intent on the part of Xxxxx Fargo) to terminate the Merger Agreement or
otherwise not to consummate the transactions contemplated thereby; and neither
Norwest nor Merger Sub, nor, to the knowledge of Norwest, Xxxxx Fargo, is in
breach or violation in any material respect of any of its respective
representations, warranties or any covenants or agreements on its part to be
performed under the Merger Agreement; and
(i) The Norwest Shares have been duly authorized for issuance pursuant to
the Merger Agreement and, when delivered pursuant to the provisions of the
Merger Agreement, the Norwest Shares will be validly issued, fully paid and
nonassessable and will be listed subject to notice of issuance, on the New York
Stock Exchange; and the Norwest Shares conform in all material respects to all
statements relating thereto contained in the Prospectus.
Any certificate signed by any officer of Norwest and delivered to you or
your counsel in connection with the offering of the Shares shall be deemed a
representation and warranty by Norwest, as to the matters covered thereby, to
each Underwriter participating in such offering.
ANNEX B
Written Opinion of Counsel to Norwest
The written opinion of Xxxxxxx X. Xxxxxx, General Counsel of Norwest, to be
delivered pursuant to Section 2(a) of this Agreement shall be to the effect
that:
(a) Norwest has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended (the "BHC Act"), with all requisite power and
authority to own its properties and conduct its business as described in
the Prospectus as amended or supplemented;
(b) The Norwest Shares have been duly authorized by all necessary
corporate action on the part of Norwest and, when issued in accordance with
the Merger Agreement, will be duly and validly issued and fully paid and
non-assessable and the issuance of the Norwest Shares is not subject to any
preemptive or similar rights other than rights under the Rights Agreement,
as amended, dated as of November 22, 1988, between Norwest and Citibank,
N.A.;
(c) This Agreement has been duly authorized, executed and delivered by
Xxxxxxx;
(d) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by
Norwest, except such as have been obtained under the Act and the BHC Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(e) Neither Norwest nor any of its subsidiaries is in violation of its
Certificate of Incorporation or By-laws or in default in the performance or
observance of any material 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;
(f) The statements set forth in the Joint Proxy Statement/Prospectus
under the caption "Description of Norwest Capital Stock," insofar as they
purport to constitute a summary of the terms of Norwest Shares, accurately
summarize the matters referred to therein; and
(g) The Merger Agreement has been duly authorized, executed and
delivered by Norwest and Xxxxxx Sub and, assuming due authorization,
execution and delivery on the part of Xxxxx Fargo, constitutes a valid and
legally binding agreement of Norwest and Merger Sub in accordance with its
terms.
The foregoing opinion shall be subject to customary assumptions and
limitations, including that the opinion will be limited generally to the
federal laws of the United States and the laws of the States of Minnesota
and Delaware, other than federal and state securities and tax laws, and
with respect to the opinion as to the enforceability of the Merger
Agreement, will be subject to customary qualifications as to bankruptcy and
equitable limitations.
