EXHIBIT 1(A)
XXXXX FARGO & COMPANY
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UNDERWRITING AGREEMENT
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To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxx Fargo & Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), the
principal amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under the indenture identified in Schedule I hereto
(the "Indenture"), with _______________ as trustee (the "Trustee"). 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.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has 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 Securities. The Company proposes 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
Securities in 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 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
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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, and the Indenture 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
Company makes 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 Company 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 and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the
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purchase price set forth in Schedule I hereto, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Securities pursuant
to delayed delivery arrangements, the respective principal amounts of Securities
to be purchased by the Underwriters shall be as set forth in Schedule II hereto,
less the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. If so specified, the Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts, if any, are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not less than
the minimum principal amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I hereto. The Underwriters will not have
any responsibility in respect of the validity or performance of any Delayed
Delivery Contract.
The principal amount of Securities to be purchased by each Underwriter
as set forth in Schedule II hereto shall, in each case, be reduced by an amount
which shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth in Schedule
II hereto, except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in writing or by
telephone; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the aggregate principal amount set
forth in Schedule II hereto, less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for Underwriters'
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 between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' 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 in the manner set forth in Schedule I hereto. The Securities will
be delivered by the
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Company to you in the form of global Securities, representing all of the
Securities, which will be deposited by you on behalf of the Underwriters, with
The Depository Trust Company, or its nominee, for credit to the respective
accounts of the Underwriters.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the Closing Date, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus) to the Basic Prospectus unless the Company 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. Subject to the foregoing
sentence, the Company 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 Company 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 Securities 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 Company of
any notification with respect to the suspension of the qualification of
the 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 Company will use
promptly its best efforts to obtain its withdrawal.
(b) If, at any time when a prospectus relating to the
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 Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company 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.
(c) As soon as practicable, the Company will make generally
available to its security holders an earnings statement or statements
of the
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Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act.
(d) The Company 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
Company 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 Securities and the expenses
incurred in distributing the Final Prospectus to the Underwriters.
(e) The Company will arrange for the qualification of the
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
Securities; provided, however, that the Company 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.
(f) Until the business day following the Closing Date or such
earlier time as you may notify the Company, the Company will not,
without the consent of the Representatives, offer or sell, or announce
the offering of, any debt securities that are substantially similar to
the Securities and are covered by the Registration Statement or any
other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed 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 Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its 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.
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(b) The Company shall have furnished to the Representatives
the opinion of Xxxxxxx X. Xxxxxx, Executive Vice President and General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company is a duly organized and 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 Norwest Bank Minnesota, N.A. ("Norwest Bank
Minnesota") and Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo Bank") is
a national banking association duly chartered and is in good
standing under the National Bank Act; and WFC Holdings
Corporation ("WFC Holdings" and together with Norwest Bank
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) the Company and each Significant Subsidiary is
duly qualified to do business and is in good standing in all
jurisdictions which require such qualification wherein it owns
or leases any material properties or conducts any material
business or in which the failure to qualify could, in the
aggregate, have any material adverse effect upon the business,
condition or properties of the Company 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. ss.55) nonassessable, and all of the
outstanding shares of its capital stock are owned by the
Company free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iv) the Company's authorized equity capitalization
is as set forth in the Final Prospectus;
(v) to the best of such counsel's knowledge there are
no legal or governmental proceedings pending or threatened
which are required to be disclosed in the 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
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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 Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under, any indenture or
other agreement or instrument to which the Company or any
Significant Subsidiary is a party or bound, or any order or
regulation applicable to the Company or any Significant
Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any Significant Subsidiary; nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company;
(vii) the Securities conform to the description
thereof contained in the Final Prospectus;
(viii) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, as amended, and (assuming the
Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a valid and legally binding
instrument enforceable against the Company 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 the Securities 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
Underwriters pursuant to this Agreement, in case of the
Underwriters' Securities, or by the purchasers therefor
pursuant to Delayed Delivery Contracts in the case of any
Contract Securities, will constitute valid and legally binding
obligations of the Company 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;
(ix) the Registration Statement and any amendments
thereto have become effective under the Act; to the best
knowledge of such counsel, no stop order suspending the
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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, 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, 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;
(x) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company; and
(xi) 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 any
Delayed Delivery Contracts, 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
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 Delaware 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 Company and its subsidiaries and public
officials.
(d) The Representatives shall have received from their counsel
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Indenture, any Delayed
Delivery Contracts, the Registration Statement, the Final Prospectus
and other related matters as the Representatives
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may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President or any Executive Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that:
(i) the representations and warranties of the Company
in Section 2 hereof are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company 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) 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) 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 other),
earnings, business or properties of the Company 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.
(f) 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 as
of the Closing Date, in form and substance satisfactory to the
Representatives and the Company, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Final Prospectus.
If (i) any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement
shall not have been fulfilled in all material respects when and as provided in
such Underwriting Agreement, or (ii) any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects 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 Company in
writing or by telephone or telegraph confirmed in writing.
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6. Reimbursement of Underwriters' Expenses. If the sale of the
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 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (included reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees 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, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement for the registration of the Securities 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 Company 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 Company by or on
behalf of any Underwriter through the Representatives for use in
connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to
the confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act 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 (or the
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Final Prospectus as amended or supplemented). This indemnity agreement
will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company 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 Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company 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, 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. 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 Company 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.
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(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section
7 is due in accordance with its terms but is for any reason held by a
court to be unavailable on grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to
the sum of such discount and the purchase price of the Securities
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that 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. For purposes of this Section 7, each
person who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to
clause (y) of this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have hereunder or otherwise
than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the 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 amount of Securities set forth opposite their names in Schedule II hereto
bear to the aggregate amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of 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 the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. 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 Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
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9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on such Exchange
shall have been suspended or materially limited, (ii) a banking moratorium shall
have been declared either by Federal or Minnesota or New York State authorities
or (iii) there shall have occurred any outbreak or material escalation of
hostilities or declaration by the United States of national emergency or war,
the effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Representatives, impracticable to market the
Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its 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 or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. 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 Company, at 000 Xxxxxx Xxxxxx, XXX: 0195-171, Xxx Xxxxxxxxx, Xxxxxxxxxx,
00000.
12. 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. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. 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.
13
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
Company and the several Underwriters.
Very truly yours,
XXXXX FARGO & COMPANY
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
------------------------------
By: __________________________
Name:
Title:
------------------------------
By: __________________________
Name:
Title:
------------------------------
By: __________________________
Name:
Title:
14
SCHEDULE I
Underwriting Agreement dated ______, ____
Registration Statement No. 333-_____
Indenture: Indenture dated as of _______, ____, between the Company and
_____________________________________.
Representatives, including addresses:
Title, Purchase Price and Description of Securities:
Title: _____% [Subordinated] [Notes] due ____
Principal Amount: $___________
Interest Rate: _____%
Interest Payment Dates: ______ and ______ of each year, commencing
________________________, ____
Maturity: ________, ____
Denominations: The Securities will be issued in [fully registered]
form in denominations of $[1,000].
Price to Public: ______% plus accrued interest, if any, from
________________________, ____
Purchase price (include type of funds, if other than Federal Funds, and
accrued interest or amortization if applicable): %, plus accrued
interest, if any, from ____________, ____, payable in immediately
available funds
Sinking fund provisions:
Redemption provisions:
Provisions regarding repayment at the option of Holders:
Closing Date, Time and Location: ________________, ____, ____ A.M., New York
City time, at the offices of ______________, ____, ____, ____.
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
SCHEDULE II
Principal
Underwriter Amount
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