EXHIBIT 1(d)
__________ CAPITAL SECURITIES
XXXXX FARGO CAPITAL ____
___% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $___ PER CAPITAL SECURITY)
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEE AGREEMENT BY
XXXXX FARGO & COMPANY
UNDERWRITING AGREEMENT
_________, 200__
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxx Fargo Capital __, a special purpose statutory business trust created
under the laws of the State of Delaware (the "Trust"), proposes to issue and
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), _______ of its
__% Capital Securities, liquidation preference $____ per capital security (the
"Capital Securities"). [INCLUDE IF OVER-ALLOTMENT OPTION- In addition, solely
for the purpose of covering overallotments, the Trust proposes to issue and
sell, at the Underwriters' option, up to an additional _____ of the Trust's __%
Capital Securities, liquidation preference $___ per capital security.] If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
The Capital Securities will be guaranteed (the "Guarantee") by Xxxxx Fargo
& Company, a Delaware corporation ("Xxxxx Fargo" or the "Guarantor"), to the
extent described in a Capital Securities Guarantee Agreement to be dated as of
________, 2001 (the "Guarantee Agreement") between the Guarantor and _______, as
trustee (the "Guarantee Trustee"). The Trust will use the proceeds from the sale
of the Capital Securities and the sale of the Trust Common Securities (as
defined below) pursuant to the Debenture Purchase Agreement dated _________,
2001 between the Trust and the Guarantor (the "Debenture Purchase Agreement"),
to purchase from the Guarantor $__________ aggregate principal amount of its __%
Junior Subordinated [Deferrable Interest] Debentures due ___________ (the
"Debentures") to be issued under an Indenture to be dated _______ between the
Guarantor and ________, as trustee (the "Debenture Trustee"). The Guarantor will
also be the holder of one hundred percent of the common securities representing
undivided beneficial interests in the assets of the Trust (the "Trust Common
Securities"). The Trust has been created under Delaware law pursuant to a Trust
Agreement (the "Trust Agreement") executed by Wells Fargo, as Depositor, and by
the trustees of the Trust (the "Issuer Trustees"), all of whom have been
appointed by the Guarantor as holder of one hundred percent of the Trust Common
Securities. Two of the Issuer Trustees (the "Administrative Trustees") are
persons who are employees or officers of or affiliated with the Guarantor. One
Issuer Trustee, ________________, shall act as property trustee (the "Property
Trustee") and as Debenture Trustee within the meaning of the Trust Indenture Act
of 1939 (the "Trust Indenture Act"). Another Issuer Trustee, ____________ will
act as Delaware Trustee. Under the terms of the Trust Agreement, Guarantor shall
pay, under certain circumstances, certain expenses of the Trust.
The Trust and the Guarantor have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-____) for the registration of the Capital Securities, the Guarantee and the
Debentures under the Securities Act of 1933, as amended (the "Act") and the
rules and regulations thereunder and the qualification of the Indenture and the
Guarantee under the Trust Indenture Act.
1. Representations and Warranties. Each of the Trust and the Guarantor
jointly and severally represent and warrant to, and agree with, each Underwriter
that:
(a) The Trust and the Guarantor meet the requirements for use of Form
S-3 under the Act and have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on such Form (the
file number of which is set forth in Schedule I hereto), which has become
effective, for the registration under the Act of the Capital Securities,
the Guarantee and the Debentures. The Trust and the Guarantor propose to
file with the Commission pursuant to Rule 424 under the Act a supplement to
the form of prospectus included in such registration statement relating to
the Capital Securities in the form heretofore delivered to you. Such
registration statement, including all exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the "Registration Statement";
such prospectus relating to the Capital Securities in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus" and such supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule 424(b) (including
the Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Final Prospectus". Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934 (the "Exchange Act")
on or before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement, as amended as of any such time,
and the Final Prospectus, as amended or supplemented as of any such time,
the Indenture, the Trust Agreement and the Guarantee Agreement will comply
in all material respects with the applicable requirements of the Act, the
Trust Indenture Act and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as of
any such time, nor the Final Prospectus, as amended or supplemented as of
any such time, will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided, however,
that the Trust and the Guarantor make no representations or warranties as
to (i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Trust and the Guarantor by or
on behalf of any Underwriter through the Representatives specifically for
use in connection with the preparation of the Registration Statement and
the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations
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and warranties herein set forth, the Trust agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Trust, the number of the Capital Securities set forth opposite such
Underwriter's name in Schedule II hereto, at a purchase price of $____ (the
"Purchase Price") per Capital Security, plus any accumulated distributions
thereon.
In consideration of such purchases on the Closing Date, the proceeds of
which will be used to purchase the Debentures, the Guarantor shall pay to the
Underwriters as compensation, in immediately available funds, on the Closing
Date $__ per Capital Security.
[INSERT APPROPRIATE OVER-ALLOTMENT OPTION PROVISIONS, IF APPLICABLE]
3. Delivery and Payment. Delivery of and payment for the Capital Securities
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement among the
Representatives, the Trust and the Guarantor or as provided in Section 8 hereof
(such date and time of delivery and payment for the Capital Securities being
herein called the "Closing Date"). Delivery of the Capital Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof. The Trust will deliver against
payment of the purchase price the Capital Securities in the form of one or more
permanent global securities in definitive form deposited with or on behalf of
_______ as custodian for The Depository Trust Company ("DTC") for credit to the
respective accounts of the Underwriters and registered in the name of Cede &
Co., as nominee for DTC. Interests in the permanent global Capital Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Final Prospectus.
4. Agreements. The Trust and the Guarantor jointly and severally agree with
the several Underwriters that:
(a) The Trust and the Guarantor will provide to counsel for the
Underwriters one manually executed copy of the Registration Statement,
including all exhibits thereto, in the form it became effective and all
amendments thereto. Prior to the Closing Date, the Trust and the Guarantor
will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus) to the Basic Prospectus unless the Trust
and the Guarantor have furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you
reasonably object promptly after notice thereof. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5 hereof. Subject to the foregoing sentence, the Trust
and the Guarantor will cause the Final Prospectus to be filed pursuant to
Rule 424(b) under the Act not later than the close of business on the
second business day following the execution and delivery of this Agreement.
The Trust and the Guarantor will promptly advise the Representatives (i)
when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b), (ii) when any amendment to the Registration
Statement relating to the Capital Securities, the Guarantee and the
Debentures shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Trust or the Guarantor of any notification with respect to the
suspension of the qualification of the Capital Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. In the event of the issuance of any stop order preventing or
suspending the use of any Preliminary Final Prospectus or Final Prospectus,
the Trust and the Guarantor will use promptly their best efforts to obtain
the withdrawal of such stop order.
(b) If, at any time when a prospectus relating to the Capital
Securities is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final
3
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Trust and the Guarantor will promptly notify you and
will, upon your request, prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' request
for, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5
hereof.
(c) As soon as practicable, the Guarantor, on behalf of the Trust,
will make generally available to the Trust's security holders an earnings
statement or statements of the Guarantor and the Guarantor's subsidiaries
which will satisfy the provisions of Section 11(a) of the Act.
(d) The Trust and the Guarantor will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date and,
so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final Prospectus and
the Final Prospectus and any amendments thereof and supplements thereto as
the Representatives may reasonably request. The Guarantor will pay the
expenses of printing or other production of all documents relating to the
offering, any fees charged by investment rating agencies for the rating of
the Capital Securities and the expenses incurred in distributing the Final
Prospectus to the Underwriters.
(e) The Trust and the Guarantor will arrange for the qualification of
the Capital Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required to complete the distribution of the Capital Securities;
provided, however, that neither the Trust nor the Guarantor shall be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject or subject itself to taxation in any jurisdiction where it is not
now so subject.
(f) Until the business day following the Closing Date or such earlier
time as you may notify the Trust and the Guarantor, the Trust and the
Guarantor will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities that are substantially
similar to the Capital Securities (other than commercial paper) and are
covered by the Registration Statement or any other registration statement
filed under the Act.
(g) The Trust and the Guarantor agree to use all commercially
reasonable efforts to obtain and maintain the listing of the Capital
Securities on the New York Stock Exchange until such time as none of the
Capital Securities are outstanding. If the Capital Securities cease to be
listed on the New York Stock Exchange, the Trust and the Guarantor agree to
use all commercially reasonable efforts promptly to list the Capital
Securities on a stock exchange agreed upon by the Trust and the Guarantor
and the Representatives. The Trust and the Guarantor will use all
commercially reasonable efforts to comply with the rules of the New York
Stock Exchange and will otherwise comply with any undertakings given by it
from time to time to the New York Stock Exchange in connection with the
Capital Securities listed thereon or the listing thereof and, without
prejudice to the generality of the foregoing, to furnish or cause to be
furnished to the New York Stock Exchange all such information as it may
require in connection with the listing thereon of the Capital Securities.
(h) The Guarantor will pay all expenses incident to the performance of
their obligations under this Agreement, for any filing fees or other
expenses (including fees and disbursements of counsel) in connection with
qualification of the Capital Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Representatives may designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating
of the Capital Securities, for any applicable filing fee incident to, and
the reasonable fees and disbursements of counsel for the Underwriters in
4
connection with, the review by the New York Stock Exchange of the Capital
Securities, for any travel expenses of the Trust's and the Guarantor's
officers and employees and any other expenses of the Trust and the
Guarantor in connection with attending or hosting meetings with prospective
purchasers of Capital Securities and for expenses incurred in distributing
any Preliminary Final Prospectus or the Final Prospectus. The Guarantor
will also pay all fees and expenses of the Debenture Trustee, including the
fees and disbursements of counsel for the Debenture Trustee in connection
with the Indenture and the Debentures; the fees and expenses of the
Property Trustee and the Delaware Trustee, including the fees and
disbursements of counsel for the Property Trustee and the Delaware Trustee
in connection with the Trust Agreement and the Certificate of Trust filed
with the Delaware Secretary of State with respect to the Trust (the
"Certificate of Trust"); and the fees and expenses of the Guarantee
Trustee, including the fees and disbursements of counsel for the Guarantee
Trustee in connection with the Guarantee and the Guarantee Agreement.
(i) The Trust and the Guarantor will cooperate with the
Representatives and use all commercially reasonable efforts to permit the
Capital Securities to be eligible for clearance and settlement through The
Depository Trust Company.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Capital Securities shall be subject to the
accuracy of the representations and warranties on the part of the Trust and the
Guarantor contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed after the
date hereof and prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the accuracy
of the statements of the Trust and the Guarantor made in any certificates
pursuant to the provisions hereof, to the performance by the Trust and the
Guarantor of their obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened by
the Commission; and the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) not later than the close of business on
the second business day following the execution and delivery of this
Agreement.
(b) The Trust and the Guarantor shall have furnished to the
Representatives the opinion of _______________________,
_____________________________ of the Guarantor, dated the Closing Date, to
the effect that:
(i) the Guarantor has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus, and is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended; each of Xxxxx Fargo Bank Minnesota,
National Association ("Xxxxx Minnesota") and Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo Bank") is a national banking
association duly chartered and is in good standing under the National
Bank Act of 1864, as amended; and WFC Holdings Corporation ("WFC
Holdings" and together with Xxxxx Minnesota and Xxxxx Fargo Bank, the
"Significant Subsidiaries") is a duly organized and validly existing
corporation under the laws of the State of Delaware;
(ii) each of the Guarantor and the Significant Subsidiaries is
duly qualified to do business and is in good standing in each
jurisdiction which requires such qualification wherein it owns or
leases any material properties or conducts any material business,
except where the failure to so qualify would not have any material
adverse effect upon the business, condition or properties of the
Guarantor and its subsidiaries, taken as a whole;
5
(iii) all of the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.55)
nonassessable, and are owned by the Guarantor free and clear of any
perfected security interest and, to the knowledge of such counsel, any
other security interests, claims, liens or encumbrances;
(iv) the number and type of equity securities the Guarantor is
authorized to issue is as set forth in the Final Prospectus;
(v) to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to
be disclosed in the Final Prospectus, other than as disclosed therein,
and there is no contract or other document of a character required to
be described or referred to in the Registration Statement or required
to be filed as an exhibit thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto, and the description thereof or references thereto are
correct;
(vi) neither the execution and delivery of this Agreement, the
Indenture, the Debentures, the Trust Agreement, and the Guarantee
Agreement nor the consummation of the transactions herein and therein
contemplated will conflict with, result in a breach of, or constitute
a default under, any indenture or other agreement or instrument to
which the Guarantor or any Significant Subsidiary is a party or bound
constituting a material contract and set forth as an exhibit to the
Guarantor's most recent Annual Report on Form 10-K or any subsequent
Quarterly Reports on Form 10-Q or Current Report on Form 8-K, or any
other indenture or material agreement or instrument known to such
counsel and to which the Guarantor or any Significant Subsidiary is a
party or bound, the breach of which would result in a material adverse
effect on the financial condition of the Guarantor and it
subsidiaries, taken as a whole, or any order or regulation known to
such counsel to be applicable to the Guarantor or any Significant
Subsidiary of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Guarantor
or any Significant Subsidiary; nor will such action result in any
violation of the provisions of the charter or by-laws of the
Guarantor;
(vii) the statements in the Final Prospectus (other than
statements furnished in writing to the Trust and the Guarantor by or
on behalf of an Underwriter through the Representatives) under the
captions "Description of Junior Subordinated Debt Securities",
"Description of Trust Preferred Securities", "Description of
Guarantees", "Plan of Distribution", and "Underwriting" insofar as
they purport to summarize certain provisions of documents or laws
specifically referred to therein, are accurate summaries of such
provisions or laws;
(viii) the Indenture has been duly authorized, executed and
delivered by the Guarantor, has been duly qualified under the Trust
Indenture Act, as amended, and (assuming the Indenture has been duly
authorized, executed and delivered by the Debenture Trustee)
constitutes a valid and legally binding instrument enforceable against
the Guarantor in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and subject to general equity principles and
except further as enforcement thereof may be limited by any
governmental authority that limits, delays or prohibits the making of
payments outside the United States); and the Debentures have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Trust
pursuant to the Debenture Purchase Agreement, will constitute valid
and legally binding obligations of the Guarantor entitled to the
benefits of the Indenture subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to
6
time in effect and subject to general equity principles and except
further as enforcement thereof may be limited by any governmental
authority that limits, delays or prohibits the making of payments
outside the United States;
(ix) the Guarantee Agreement has been duly authorized, executed
and delivered by the Guarantor, and (assuming the Guarantee Agreement
has been duly authorized, executed and delivered by the Guarantee
Trustee) constitutes a valid and legally binding instrument
enforceable against the Guarantor in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and subject to
general equity principles and except further as enforcement thereof
may be limited by any governmental authority that limits, delays or
prohibits the making of payments outside the United States);
(x) the Registration Statement and any amendments thereto have
become effective under the Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement,
as amended, has been issued and no proceedings for that purpose have
been instituted or threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement thereto as of
their respective effective or issue dates (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) complied as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration Statement,
or any amendment thereof, at the time it became effective (other than
the financial statements and other financial and statistical
information contained therein as to which such counsel need express no
opinion), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Final
Prospectus, as amended or supplemented (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion), includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xi) this Agreement has been duly authorized, executed and
delivered by each of the Trust and the Guarantor; and
(xii) no consent, approval, authorization or order of any court
or government agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required
under the Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the Capital Securities by the
Underwriters.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the States
of Minnesota and California and the Delaware General Corporation Law or the
United States, to the extent deemed proper and specified in such opinion,
upon the opinion of counsel who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Trust and the Guarantor and
its subsidiaries and public officials.
(c) The Representatives shall have received the opinion of
_________________________, counsel to _____________, as Property Trustee
under the Trust Agreement, Debenture Trustee under the Indenture, and
Guarantee Trustee under the Guarantee Agreement, dated the Closing Date, to
the effect that:
(i) _______________ is duly incorporated and is validly existing
in good
7
standing as a banking corporation under the law of the State of
Delaware.
(ii) _______________ has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the
Guarantee Agreement has been duly authorized, executed and delivered
by ______________ and constitutes a legal, valid and binding
obligation of ______________, enforceable against ______________, in
accordance with its terms.
(iv) The execution, delivery and performance by _____________ of
the Trust Agreement, the Indenture and the Guarantee Agreement do not
conflict with or constitute a breach of the charter or by-laws of
_______________.
(v) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the State
of Delaware or the United States of America governing the banking or
trust powers of ________________ is required for the execution,
delivery or performance by _________________ of the Trust Agreement,
the Indenture and the Guarantee Agreement.
(d) The Representatives shall have received the opinion of
______________________, as special Delaware counsel to the Trust and the
Guarantor, dated the Closing Date, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, and all
filings required as of the date hereof under the Delaware Act with
respect to the creation and valid existence of the Trust as a business
trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority to own property and to conduct its
business, all as described in the Final Prospectus.
(iii) the Trust Agreement constitutes a valid and legally binding
instrument enforceable against the Guarantor, the Property Trustee and
each of the Administrative Trustees in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and subject to
general equity principles and except further as enforcement thereof
may be limited by any governmental authority that limits, delays or
prohibits the making of payments outside the United States);
(iv) Under the Trust Agreement and the Delaware Act, the Trust
has the trust power and authority (i) to execute and deliver, and to
perform its obligations under, this Agreement, and (ii) to issue, and
to perform its obligations under, the Capital Securities and the Trust
Common Securities.
(v) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations under this Agreement, have been duly
authorized by all necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the
Trust Agreement as Exhibit __ is an appropriate form of certificate to
evidence ownership of
8
the Capital Securities. The Capital Securities have been duly
authorized by the Trust Agreement and, when issued and delivered in
accordance with this Agreement, will be duly and validly issued, and,
subject to the qualifications hereinafter expressed in this paragraph
(vi), fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and are entitled to the benefits of the Trust
Agreement. The Trust Common Securities have been duly authorized by
the Trust Agreement and are duly and validly issued undivided
beneficial interests in the assets of the Trust and are entitled to
the benefits of the Trust Agreement. The holders of the Capital
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. Such counsel may note that
the respective holders of the Capital Securities may be obligated,
pursuant to the Trust Agreement, to make certain payments under the
Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the
issuance of the Capital Securities and the Trust Common Securities is
not subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Capital
Securities and the Trust Common Securities, the purchase by the Trust
of the Debentures, the execution, delivery and performance by the
Trust of this Agreement and the Guarantee Agreement, the consummation
by the Trust of the transactions contemplated by this Agreement and
compliance by the Trust with its obligations under this Agreement do
not violate (a) any of the provisions of the Certificate of Trust or
the Trust Agreement, (b) any applicable Delaware law or Delaware
administrative regulation.
(e) The Representatives shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the Capital
Securities, the Debenture, the Guarantee Agreement, the Indenture, the
Registration Statement, the Final Prospectus and other related matters as
the Representatives may reasonably require, and the Trust and the Guarantor
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) Each of the Trust and the Guarantor shall have furnished to the
Representatives a certificate, signed, with respect to the Trust, by an
Administrative Trustee of the Trust and, with respect to the Guarantor, by
any Senior Vice President or Executive Vice President and the principal
financial or accounting officer of the Guarantor, dated the Closing Date,
to the effect that:
(i) with respect to the certificate delivered by the Trust, the
representations and warranties of the Trust in Section 1 hereof are
true and correct on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Trust has complied with all the
agreements and satisfied all the conditions on their part to be
performed or satisfied at or prior to the Closing Date, and, with
respect to the certificate delivered by the Guarantor, the
representations and warranties of the Guarantor in Section 1 hereof
are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Guarantor has complied
with all the agreements and satisfied all the conditions on their part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or threatened; and
(iii) with respect to the certificate delivered by the Guarantor,
since the date of the most recent financial statements included in the
Final Prospectus, there has been no
9
material adverse change in the condition, financial or otherwise,
earnings, business, properties or business prospects of the Guarantor
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus.
(g) At the Closing Date, KPMG LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated the Closing Date,
in substantially the form attached hereto as Exhibit A.
(h) As of the Closing Date, there shall not have occurred since the
date hereof any change in the condition, financial or otherwise, or in the
earnings, business, properties, results of operations or business prospects
of the Trust, the Guarantor and the Guarantor's subsidiaries, taken as a
whole, from that set forth in the Final Prospectus, as amended or
supplemented as of the date hereof, that, in the judgment of the
Representatives, is material and adverse and that makes it, in the judgment
of the Representatives, impracticable to market the Capital Securities on
the terms and in the manner contemplated by the Final Prospectus, as so
amended or supplemented.
If (i) any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or (ii) any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
their counsel, this Agreement and all obligations of the Underwriters hereunder
may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Trust and the
Guarantor in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Capital
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Trust and the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Trust and the Guarantor will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel and those described in
Section 4(h) hereof) that shall have been incurred by them in connection with
the proposed purchase and sale of the Capital Securities.
7. Indemnification and Contribution.
(a) The Trust and the Guarantor jointly and severally agree to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Capital Securities, the
Guarantee and the Debentures as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such
indemnified party to the extent set forth below, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Trust and the Guarantor will 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 any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Trust and the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for use therein (it being understood and
agreed that the only such information furnished by any Underwriter consists
of such information described as such in Schedule I hereto); and (ii) with
respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from the Basic
10
Prospectus or any Preliminary Final Prospectus, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased
the Capital Securities concerned, to the extent that the Final Prospectus
relating to such Capital Securities was required to be delivered by such
Underwriter under the Act in connection with such purchase and the untrue
statement or omission of a material fact contained in the Basic Prospectus
or any Preliminary Final Prospectus was corrected in the Final Prospectus
as amended or supplemented if the Trust and the Guarantor had previously
furnished copies of the Final Prospectus as amended or supplemented
(exclusive of material incorporated by reference) to such Underwriter. This
indemnity agreement will be in addition to any liability which the Trust
and the Guarantor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Trust, the Issuer Trustees, the Guarantor, each of
its directors, each of their officers who signs the Registration Statement,
and each person who controls the Trust or the Guarantor within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Trust and the Guarantor to
each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Trust and the Guarantor by or on
behalf of such Underwriter through the Representatives for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action (including any governmental
investigation), such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will 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 reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party). In
any such proceeding, any indemnified party shall have the right to obtain
its own counsel, but the fees and expenses of such counsel shall be 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 indemnified party and the indemnifying
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interests between
them. It is understood that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate identified firm (in
addition to any identified local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Representatives
that are indemnified parties in the case of parties to be indemnified
pursuant to paragraph (a) of this Section 7 and by the Guarantor in the
case of parties to be indemnified pursuant to paragraph (b) of this Section
7. An indemnifying party shall not be liable for any settlement of any
proceeding effected without its prior 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. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld or
delayed), effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and (ii)
does not include a statement as to, or an admission of, fault, culpability
or a
11
failure to act by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) hereof is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, 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 Trust and the Guarantor, on the one
hand, and each Underwriter, on the other hand, from the offering of such
Capital 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 Trust and the Guarantor, on the one hand,
and each Underwriter, on the other hand, in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Trust and the Guarantor, on the one hand, and each
Underwriter, on the other hand, in connection with the offering of such
Capital Securities shall be deemed to be in the same respective proportions
as the total net proceeds from the offering of such Capital Securities
(before deducting expenses) received by the Trust and the Guarantor bear to
the total discounts and commissions received by each Underwriter in respect
thereof. The relative fault of the Trust and the Guarantor, on the one
hand, and each Underwriter, on the other hand, 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 Trust and the
Guarantor or by such Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Underwriter's obligation to contribute pursuant
to this Section 7 shall be several in the proportion that the number of
Capital Securities the sale of which by such Underwriter gave rise to such
losses, claims, damages or liabilities bears to the aggregate number of
Capital Securities the sale of which by all Underwriters gave rise to such
losses, claims, damages or liabilities, and not joint.
(e) The Trust and the Guarantor and the Underwriters agree that it
would not be just or equitable if contribution pursuant to Section 7(d)
hereof 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 that does not take account of the equitable considerations
referred to in Section 7(d) hereof. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 7(d) hereof 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 Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Capital Securities referred to in Section 7(d) hereof that were
offered and sold to the public through such Underwriter exceeds the amount
of any damages that 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.
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Capital Securities agreed to be purchased by
such Underwriter or Underwriters hereunder, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the number of Capital Securities set forth opposite their names in Schedule II
hereto bear to the aggregate number of Capital Securities set forth opposite the
names of all the remaining Underwriters) the Capital Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate number of Capital Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of Capital Securities set forth in Schedule
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of such Capital Securities;
provided further, that if the remaining Underwriters do not exercise their right
to purchase such
12
Capital Securities and arrangements for the purchase of such Capital Securities
satisfactory to the Trust and the Guarantor and the Representatives are not made
within 36 hours after such default, then this Agreement will terminate without
liability to any nondefaulting Underwriter, the Trust or the Guarantor. In the
event of a default by any Underwriter as set forth in this Section 8, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Trust and the
Guarantor and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Underwriter Representations and Agreements. In the event that the offer
or sale of the Capital Securities by an Underwriter in a jurisdiction requires
any action on the part of the Trust and the Guarantor in or with respect to such
jurisdiction, such Underwriter represents and agrees that it will (i) inform the
Trust or the Guarantor that the Trust or the Guarantor is required to take such
action prior to the time such action is required to be taken, and (ii) cooperate
with and assist the Trust or the Guarantor in complying with such requirements.
Each Underwriter severally agrees that it will, to the best of its knowledge and
belief, comply with all applicable securities laws and regulations in force in
any jurisdiction in which it purchases, offers, sells or delivers the Capital
Securities or possesses or distributes any Preliminary Final Prospectus or the
Final Prospectus, and will obtain any required consent, approval or permission
for its purchase, offer, sale or delivery of the Capital Securities under the
laws and regulations in force in any jurisdiction to which it is subject or in
which it makes any such purchases, offers, sales or deliveries.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Trust and the
Guarantor prior to delivery of and payment for the Capital Securities, if prior
to such time there shall have occurred any (i) suspension or material limitation
of trading generally on the New York Stock Exchange, (ii) suspension of trading
of any securities of the Guarantor on any exchange or in any over-the-counter
market, (iii) declaration of a general moratorium on commercial banking
activities in California or New York by either Federal or state authorities,
(iv) lowering of the rating assigned to any debt securities of the Guarantor by
any nationally-recognized securities rating agency or public announcement by any
such rating agency that it has under surveillance or review, with possible
negative consequences, its rating of any debt securities of the Guarantor or (v)
outbreak or escalation of hostilities in which the United States is involved,
declaration of war by Congress or change in financial markets or calamity or
crisis that, in the judgment of the Representatives, is material and adverse
and, in the case of any of the events described in clauses (i) through (v), such
event, either alone or together with any other such event, makes it, in the
judgment of the Representatives, impracticable to proceed with completion of the
public offering of, or sale of and payment for, the Capital Securities.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Trust, the
Guarantor or their officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Trust or the
Guarantor or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive delivery of and payment for the Capital
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by facsimile, telex, telecopier, or telegram and confirmed to the
recipient, and any such notice shall be effective when received if sent to the
Representatives, at the address specified in Schedule I hereto, or if sent to
the Trust or the Guarantor, at 000 Xxxxxx Xxxxxx, MAC: 0195-000, Xxx Xxxxxxxxx,
Xxxxxxxxxx, 00000.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15. Business Day. As used herein, the term "business day" shall mean any
day when the Commission's office in Washington, D.C. is normally open for
business.
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Trust,
the Guarantor and the several Underwriters.
Very truly yours,
XXXXX FARGO CAPITAL ____
By XXXXX FARGO & COMPANY, as Depositor
By:
-------------------------------------
Name:
Title:
XXXXX FARGO & COMPANY
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
---------------------------------------
Acting on behalf of themselves and
as the Representatives of the
several Underwriters.
---------------------------------------
By:
-----------------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement dated ________, 20__ (the "Agreement")
Registration Statement No. 333-______
Representatives, including addresses:
Title, Purchase Price and Description of Capital Securities:
Title: __% Capital Securities
Number:
Price to Public: $
Purchase price (include type of funds, if other than Federal Funds,
and accrued interest or amortization if applicable): $ _______ payable
in immediately available funds
Distributions:
Liquidation Preference: $__ per capital security
Sinking fund provisions:
Redemption provisions:
Provisions regarding repayment at the option of Holders:
Closing Date, Time and Location: ___________, 2001, 9:00 a.m., New York City
time, at the offices of ____________________________________________________
Information Supplied by Underwriters: For purposes of Sections 7(a) and 7(b) of
the Agreement, the only information furnished to the Trust and the Guarantor by
any Underwriter for use in any Preliminary Final Prospectus or the Final
Prospectus consists of: (i) the concession and discount figures contained in the
[ ] paragraph under the caption "Underwriting" therein, (ii) the [ ] sentence of
the [ ] paragraph under the caption "Underwriting" therein and (iii) the [ ]
paragraphs under the caption "Underwriting" therein.
I-1
SCHEDULE II
Underwriter Number of Capital
----------- Securities to be
Purchased
---------
[_____________________________].................... $
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
...................................................
Total..................................... $
II-1
