Exhibit 1.1
Xxxxx Fargo Capital IX
5.625% TOPrS/SM/ Trust Preferred Securities
(liquidation amount $25 per Capital Security)
guaranteed to the extent set forth in the Guarantee Agreement by
Xxxxx Fargo & Company
Underwriting Agreement
April 1, 2004
To the Representative
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxx Fargo Capital IX, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as Representative (the "Representative"), 20,000,000 of its 5.625%
TOPrS/SM/ Trust Originated Preferred Securities, liquidation amount $25 per
Preferred Security (the "Capital Securities"). 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 "Representative", 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 Guarantee Agreement to be dated as of April 8, 2004
(the "Guarantee Agreement") between the Guarantor and X.X. Xxxxxx Trust Company,
National Association, 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 to be dated as of April 8, 2004 between the Trust and the Guarantor
(the "Debenture Purchase Agreement"), to purchase from the Guarantor
$515,463,925 aggregate principal amount of its 5.625% Junior Subordinated
Debentures due April 8, 2034 (the "Debentures") to be issued under an Indenture
dated as of August 29, 2001 (the "Indenture") between the Guarantor and X.X.
Xxxxxx Trust Company, National Association (as successor in interest to Bank One
Trust Company, N.A.), 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 was created under Delaware law pursuant to a Declaration
of Trust and Trust Agreement dated as of February 5, 2002 executed
by Xxxxx Fargo, as depositor, and by Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxx, as
administrative trustees of the Trust and by Wilmington Trust Company, as
Delaware trustee (the "Delaware Trustee"), as hereafter amended in substantially
the form of the Amended and Restated Declaration of Trust and Trust Agreement
(the "Trust Agreement") among Xxxxx Fargo, the administrative trustees named
therein (the "Administrative Trustees"), the Delaware Trustee and the property
trustee named therein (the "Property Trustee") filed as exhibit 4(oo) to the
Registration Statement (as defined below). Under the terms of the Trust
Agreement, the Guarantor shall pay, under certain circumstances, certain
expenses of the Trust.
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 Securities Act of 1933, as amended (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, the
Guarantee and the Debentures in substantially the form heretofore
delivered to you. Such registration statement, including all exhibits
thereto (but excluding Form T-1), as amended at the date of this
Agreement, is hereinafter called the "Registration Statement"; such
prospectus relating to the Capital Securities, the Guarantee and the
Debentures 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
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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 of
1939 (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
Statements of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Debenture Trustee, the Guarantee Trustee and the
Property 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 or the Guarantor by or
on behalf of any Underwriter through the Representative specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus (it being understood and agreed
that the only such information furnished by any Underwriter consists
of such information described as such in a letter dated the Closing
Date the ("Blood Letter") delivered by the Representative to the
Company).
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations 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 $25 (the
"Purchase Price") per Capital Security, plus any accumulated distributions
thereon.
(b) 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 $0.7875 per Capital Security, or an aggregate of $15,750,000
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
Representative, 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 Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the purchase price thereof in
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the manner set forth in Schedule I hereto. 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
Xxxxx Fargo Bank, N.A. 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 or 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 or the Guarantor has 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 Representative's 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 Representative
(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, the Guarantee and the Debentures 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
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necessary to amend or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Trust or the Guarantor will promptly notify you and, upon your
request, the Trust and the Guarantor will 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 Representative's 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
Representative 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 Representative may
reasonably request. The Guarantor will pay the expenses of printing or
other production of all documents relating to the offering 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 Representative may designate, will maintain
such qualifications in effect so long as required to complete the
distribution of the Capital Securities; provided, however, that each
of the Trust and the Guarantor shall not 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 or the Guarantor, neither the
Trust nor the Guarantor will, without the consent of the
Representative, offer or sell, or announce the offering of, any
securities (other than commercial paper) that are substantially
similar to the Capital Securities 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
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reasonable efforts promptly to list the Capital Securities on a stock
exchange agreed upon by the Trust, the Guarantor and the
Representative. 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. In the event that the Debentures are
distributed to the holders of the Capital Securities, the Trust and
the Guarantor agree to use all commercially reasonable efforts to
obtain and maintain the listing of the Debentures on the New York
Stock Exchange or any other stock exchange on which the Capital
Securities are then listed until such time as none of the Debentures
are outstanding.
(h) The Guarantor will pay all expenses incident to the
performance of the Trust's and its 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 Representative
may designate and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the
Capital Securities and the Debentures, for any applicable filing fee
incident to, and the reasonable fees and disbursements of counsel for
the Underwriters in 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 Certificate of Trust filed with the
Delaware Secretary of State with respect to the Trust (the
"Certificate of Trust") and the Trust Agreement; 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
Representative and use all commercially reasonable efforts to permit
the Capital Securities to be eligible for clearance and settlement
through DTC.
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
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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
Representative the opinion of Xxxx X. Xxxxxxxxx, Senior Counsel of the
Guarantor, or another senior lawyer of the Guarantor satisfactory to
the Representative, 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 financial holding
company and a bank holding company under the Bank Holding Company
Act of 1956, as amended; Xxxxx Fargo Bank, National Association
("Xxxxx Fargo Bank") is a national banking association authorized
to transact the business of banking under the National Bank Act
of 1864, as amended; and WFC Holdings Corporation ("WFC Holdings"
and together with 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;
(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. Section55 in the case of Xxxxx Fargo Bank) nonassessable,
and are owned directly or indirectly 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;
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(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 issue and sale of the Capital Securities
and the Debentures, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof or the Indenture, the Debentures, the Trust Agreement or
the Guarantee Agreement will 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 and which constitutes a material contract and is 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 its subsidiaries, taken
as a whole, or violate 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 Restated
Certificate of Incorporation or By-Laws of the Guarantor;
(vii) the statements in the Final Prospectus (other than
statements furnished in writing to the Trust or the Guarantor by
or on behalf of an Underwriter through the Representative, it
being understood and agreed that the only such information
furnished by any Underwriter consists of such information
described as such in the Blood Letter) under the captions
"Description of Junior Subordinated Debentures", "Description of
Capital Securities", "Description of Guarantee", "Relationship
Among the Capital Securities, the Junior Subordinated Debentures
and the Guarantee," "Underwriters", "Description of Junior
Subordinated Debt Securities", "Description of Trust Preferred
Securities", "Description of Guarantees", "Relationship Among
Trust Preferred Securities, Corresponding Junior Subordinated
Debt Securities and Guarantees," and "Plan of Distribution"
insofar as they purport to summarize certain provisions of
documents or laws specifically referred to
8
therein, are accurate summaries of such provisions or laws or of
the sources from which such summaries were derived;
(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 executed by the Guarantor and, when authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Trust pursuant to the Debenture Purchase
Agreement, the Debentures will constitute valid and legally
binding obligations of the Guarantor enforceable against the
Guarantor in accordance with their terms and 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
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); and
the Trust Agreement has been duly authorized, executed and
delivered by the Guarantor and each of the Administrative
Trustees;
(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
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respective effective or issue dates (other than the financial
statements and other financial and statistical information
contained therein, other than statements furnished in writing to
the Guarantor or the Trust by or on behalf of an Underwriter
through the Representative (it being understood and agreed that
the only such information furnished by any Underwriter consists
of such information described as such in the Blood Letter) and
other than the Statements of Eligibility on Form T-1 included or
incorporated by reference 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, other than statements furnished in
writing to the Guarantor or the Trust by or on behalf of an
Underwriter through the Representative (it being understood and
agreed that the only such information furnished by any
Underwriter consists of such information described as such in the
Blood Letter) and other than the Statements of Eligibility on
Form T-1 included or incorporated by reference 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, other than statements furnished in writing to the
Guarantor or the Trust by or on behalf of an Underwriter through
the Representative (it being understood and agreed that the only
such information furnished by any Underwriter consists of such
information described as such in the Blood Letter) and other than
the Statements of Eligibility on Form T-1 included or
incorporated by reference 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 or in the
Indenture, the Debentures, the Trust Agreement or the Guarantee
Agreement, 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 or NASD regulations in
connection with the purchase and distribution of the Capital
Securities by the Underwriters.
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In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Minnesota 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 Representative shall have received the opinion of
counsel to X.X. Xxxxxx Trust Company, National Association, 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) X.X. Xxxxxx Trust Company, National Association is
duly incorporated and is validly existing in good standing as a
banking corporation under the law of the State of Delaware.
(ii) X.X. Xxxxxx Trust Company, National Association 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 X.X. Xxxxxx Trust Company, National Association and
constitutes a legal, valid and binding obligation of X.X. Xxxxxx
Trust Company, National Association, enforceable against X.X.
Xxxxxx Trust Company, National Association in accordance with its
terms.
(iv) The execution, delivery and performance by X.X.
Xxxxxx Trust Company, National Association 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
X.X. Xxxxxx Trust Company, National Association
(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 X.X. Xxxxxx Trust
Company, National Association is required for the execution,
delivery or performance by X.X. Xxxxxx Trust Company, National
Association of the Trust Agreement, the Indenture and the
Guarantee Agreement.
(d) The Representative shall have received the opinion of
Xxxxxxxx, Xxxxxx & Finger, as special Delaware counsel to the Trust
and the Guarantor, dated the Closing Date, to the effect that:
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(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Statutory Trust Act (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 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 C is an appropriate form of
certificate to evidence ownership of 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
12
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, 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 Representative shall have received from its counsel such
opinion or opinions, dated the Closing Date, with respect to the
Capital Securities, the Debentures, the Guarantee Agreement, the
Indenture, the Registration Statement, the Final Prospectus and other
related matters as the Representative may reasonably require, and the
Trust and the Guarantor shall have furnished to such counsel such
documents as it requests for the purpose of enabling it to pass upon
such matters.
(f) Each of the Trust and the Guarantor shall have furnished to
the Representative a certificate, signed, with respect to the Trust,
by an Administrative Trustee of the Trust and, with respect to the
Guarantor, 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 its 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 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 its part to be performed or
satisfied at or prior to the Closing Date;
(ii) with respect to each certificate, 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
13
(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 material
adverse change in the condition, financial or otherwise,
earnings, business, properties or business prospects of the Trust
and the Guarantor and the Guarantor's 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
Representative a letter or letters (which may refer to letters
previously delivered to the Representative), dated the Closing Date.
(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 Representative, is material and adverse and that
makes it, in the judgment of the Representative, impracticable to
market the Capital Securities on the terms and in the manner
contemplated by the Final Prospectus, as so amended or supplemented.
(i) As of the Closing Date, the Capital Securities shall have
been approved for listing on the New York Stock Exchange or on such
other stock exchange agreed upon by the Trust, the Guarantor and the
Representative, unless the failure to obtain such approval is a result
of the Underwriters' failure to provide any materials requested by
such exchange.
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 Representative and its counsel, this Agreement and
all obligations of the Underwriters hereunder may be cancelled on, or
at any time prior to, the Closing Date by the Representative. Notice
of such cancellation shall be given to the Trust and the Guarantor in
writing or by telephone or facsimile 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 Guarantor will reimburse
the Underwriters severally upon demand for all out-of-pocket expenses
(including, without limitation, 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.
14
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 or the
Guarantor by or on behalf of any Underwriter through the
Representative 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 the Blood Letter);
and (ii) with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from the Basic 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 was not so delivered within the time required by the Act
and the rules thereunder 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 or 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 or the Guarantor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Trust, the Administrative Trustees,
the Guarantor, each of their directors, each of the Guarantor's
officers and the Trust's representative 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
15
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 or the Guarantor by or on behalf of such Underwriter through the
Representative for use in the preparation of the documents referred to
in the foregoing indemnity (it being understood and agreed that the
only such information furnished by any Underwriter consists of such
information described as such in the Blood Letter). 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
Representative that is an indemnified party 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
16
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 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 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
17
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 Capital Securities and arrangements for the purchase of such
Capital Securities satisfactory to the Trust and the Guarantor and the
Representative are not made within 36 hours after such default, then this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Trust and 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 Representative 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 or 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 or 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 represents and agrees that it has not
offered or sold, and will not offer or sell, the Capital Securities in any
member state of the European Union. 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
18
jurisdiction to which it is subject or in which it makes any such purchases,
offers, sales or deliveries. Each Underwriter severally agrees that it will
provide any materials requested by the New York Stock Exchange or such other
stock exchange upon which the Capital Securities, or, if applicable, the
Debentures, are listed. Each Underwriter also severally agrees that it will
timely file with the Corporate Financing Department of the National Association
of Securities Dealers, Inc. (the "Association") any documents required to be
filed under Rules 2710 and 2720 of the Association's Conduct Rules relating to
the offering of the Capital Securities.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, 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 or a material disruption in
settlement services in the United States, (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 including, without limitation, an act of terrorism that, in the judgment
of the Representative, 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
Representative, 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
Representative, at the address specified in Schedule I hereto, or if sent to the
Trust, at Xxxxx Fargo Center, MAC: X0000-000, Xxxxx Xxxxxx and Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 or to the Guarantor, at 000 Xxxxxx Xxxxxx, XXX:
0195-171, 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.
19
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.
20
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 IX
By XXXXX FARGO & COMPANY, as Depositor
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
XXXXX FARGO & COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Acting on behalf of itself and as
the Representative of the several
Underwriters.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
SCHEDULE I
Underwriting Agreement dated April 1, 2004 (the "Agreement")
Registration Statement No. 333-103711
Representative, including address:
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Title, Purchase Price and Description of Capital Securities:
Title: 5.625% TOPrS/SM/ Trust Originated Preferred Securities
Number: 20,000,000
Price to Public: $25
Purchase price (include type of funds, if other than Federal Funds, and
accrued interest or amortization if applicable): $25 payable in immediately
available funds
Commission: 3.15% ($0.7875 per Capital Security)
Distribution Rate: 5.625% per Capital Security
Distribution Dates: July 1, October 1, January 1, and April 1, beginning on
July 1, 2004
Liquidation Amount: $25 per Capital Security
Denominations: Beneficial interests in the Capital Securities will be held
in denominations of $25 and integral multiples thereof
Sinking fund provisions: None
Maturity Date: April 8, 2034
Redemption: As specified in the Final Prospectus
Provisions regarding repayment at the option of Holders: None
Deferral of Interest: As specified in the Final Prospectus
I-1
Closing Date, Time and Location: April 8, 2004, 9:00 a.m., New York City time,
at the offices of Faegre & Xxxxxx LLP, 2200 Xxxxx Fargo Center, 00 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
I-2
SCHEDULE II
Number of
Capital
Securities to
Underwriter be Purchased
----------------------------------------------------------------- -------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated............... 2,783,335
Citigroup Global Markets Inc..................................... 2,758,333
Xxxxxx Xxxxxxx & Co. Incorporated................................ 2,758,333
UBS Securities LLC............................................... 2,758,333
Wachovia Capital Markets, LLC.................................... 2,758,333
Xxxxx Fargo Securities, LLC...................................... 2,758,333
Bear, Xxxxxxx & Co. Inc.......................................... 400,000
Credit Suisse First Boston LLC................................... 400,000
Xxxxxxx, Sachs & Co.............................................. 400,000
Deutsche Bank Securities Inc..................................... 100,000
X. X. Xxxxxxx & Sons, Inc........................................ 100,000
H&R Block Financial Advisors, Inc................................ 100,000
HSBC Securities (USA) Inc........................................ 100,000
X.X. Xxxxxx Securities Inc....................................... 100,000
KeyBanc Capital Markets, a division of McDonald Investments Inc.. 100,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated............................. 100,000
Xxxxxx Brothers Inc.............................................. 100,000
Xxxxxxxxxxx & Co. Inc............................................ 100,000
Xxxxx Xxxxxxx & Co............................................... 100,000
II-1
Quick & Xxxxxx, Inc.............................................. 100,000
RBC Xxxx Xxxxxxxx Inc............................................ 100,000
Xxxxxx X Xxxxxxx & Co., Inc...................................... 100,000
Xxxxxxx Xxxxx & Associates, Inc.................................. 100,000
Xxxxxxx Xxxxxx & Co., Inc........................................ 100,000
TD Waterhouse Investor Services, Inc............................. 100,000
Advest, Inc...................................................... 25,000
BB&T Capital Markets, a division of Xxxxx and Xxxxxxxxxxxx, Inc.. 25,000
Xxxxxx X. Xxxxx & Co. Incorporated............................... 25,000
Xxxxxxxx & Partners, L.P......................................... 25,000
Xxxxxxx, Xxxxxx & Co............................................. 25,000
X.X. Xxxxxxxx & Co............................................... 25,000
Xxxxxxxxx & Company LLC.......................................... 25,000
Xxxxx Securities, Inc............................................ 25,000
Xxxxxx, Xxxxx Xxxxx Incorporated................................. 25,000
Fifth Third Securities, Inc...................................... 25,000
Xxxxxx & Company................................................. 25,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc................................. 25,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC...................................... 25,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc..................................... 25,000
X. X. Xxxx & Associates, Inc..................................... 25,000
Mesirow Financial, Inc........................................... 25,000
Xxxxxx Xxxxxx & Company, Inc..................................... 25,000
Pershing Trading Company, L.P.................................... 25,000
Xxxx, Xxxx & Co., Inc............................................ 25,000
II-2
Sandler X'Xxxxx & Partners, L.P.................................. 25,000
Southwest Securities, Inc........................................ 25,000
Xxxxxx, Xxxxxxxx & Company, Incorporated......................... 25,000
SunTrust Capital Markets, Inc.................................... 25,000
Xxxxxx Xxxxxx IBG................................................ 25,000
Wedbush Xxxxxx Securities Inc.................................... 25,000
Total......................................................... 20,000,000
II-3
