EXHIBIT 1(B)
XXXXX FARGO & COMPANY
$____ DEPOSITARY SHARES
Each Representing [One Quarter] Share of
[CUMULATIVE] [NONCUMULATIVE] [CONVERTIBLE] [PREFERRED]
[PREFERENCE] STOCK, SERIES ___
(without par value)
UNDERWRITING AGREEMENT
[Date]
--------, ----
[Names and Addresses of
Representatives]
Dear Sirs:
Xxxxx Fargo & Company, a Delaware corporation (the "Company"), proposes
to issue up to _____ shares of its [Cumulative] [Noncumulative] [Convertible]
[Preferred] [Preference] Stock, Series ___, without par value, (the
"[Convertible] Preferred Shares"), of which _____ [Convertible] Preferred Shares
would be issued in connection with the sale of the Firm Shares (as hereinafter
defined) and up to _____ [Convertible] Preferred Shares would be issued in
connection with any sale of Additional Shares (as hereinafter defined).
The [Convertible] Preferred Shares will, when issued, be deposited by
the Company against delivery of Depositary Receipts ("Depositary Receipts") to
be issued by Norwest Bank Minnesota, N.A., as depositary (the "Depositary"),
under a Deposit Agreement (the "Deposit Agreement") among the Company, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder. Each Depositary Receipt will evidence one or more Depositary Shares
(as hereinafter defined), and each Depositary Share will represent [one-quarter]
of a [Convertible] Preferred Share.
[The Convertible Preferred Shares are convertible by the holders
thereof into [shares of common stock, par value $1 2/3 per share, of the Company
(the "Common Stock")] [the Company's _______________________ (the "Debt
Securities")], all as described in the Prospectus referred to below.]
The Company proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives") _____ of the Depositary Shares (the
"Firm Shares"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional _____ of the Depositary Shares (the
"Additional Shares") if and to the extent that the Representatives shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Depositary Shares granted to the Underwriters in Article II hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "Depositary Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the Convertible Preferred
Shares [and][,] the Depositary Shares [and the shares of Common Stock issuable
upon conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares], which
registration statement has become effective, and will promptly file with the
Commission a prospectus supplement specifically relating to the [Convertible]
Preferred Shares [and][,] the Depositary Shares [and the Common Stock issuable
upon conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares] pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Act"). As used in this
Agreement, the term "Registration Statement" means such registration statement,
including exhibits, financial statements, schedules and documents incorporated
by reference therein (but excluding Form T-1), as amended to the date hereof.
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and][,] the Depositary Shares [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares] as filed with the
Commission pursuant to such Rule 424. The term "preliminary prospectus" means
any preliminary prospectus supplement specifically relating to the Convertible
Preferred Shares [and][,] the Depositary Shares [and the Common Stock issuable
upon conversion of the Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares] together with the
Basic Prospectus. Any reference herein to any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein as of the date of such preliminary prospectus or the
Prospectus, as the case may be.
I.
The Company represents and warrants to each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect; and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, has the corporate power and authority
to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(c) Each of Norwest Bank Minnesota, N.A. and Xxxxx Fargo Bank,
N.A. (the "Bank Subsidiaries") has been duly organized and is validly
existing as a national banking association under the laws of the United
States, and is duly
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qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(d) All of the outstanding shares of capital stock of each
Bank Subsidiary have been duly and validly authorized and issued and
are fully paid and (except as provided in 12 U.S.C. ss.55)
non-assessable, and all outstanding shares of such capital stock are
owned directly or indirectly by the Company free and clear of any
security interests, claims, liens or encumbrances.
(e) The authorized capital stock of the Company, the
Depositary Shares, the Depositary Receipts and the Deposit Agreement
conform as to legal matters to the descriptions thereof contained in
the Prospectus.
[(f) The shares of Common Stock outstanding prior to the
issuance of the Convertible Preferred Shares represented by the
Depositary Shares to be sold by the Company have been duly and validly
authorized and issued and are fully paid and non-assessable.]
(g) The [Convertible] Preferred Shares, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the
Deposit Agreement, have been duly authorized and, when the
[Convertible] Preferred Shares are issued and delivered in accordance
with the terms of this Agreement, the [Convertible] Preferred Shares
will be validly issued, fully paid and non-assessable, and the issuance
of such [Convertible] Preferred Shares is not subject to any preemptive
or similar rights.
[(h) The shares of Common Stock issuable upon conversion of
the Convertible Preferred Shares have been duly authorized and reserved
for issuance upon such conversion, and, if and when the Convertible
Preferred Shares are converted into shares of Common Stock in
accordance with the Certificate of Designations of Powers, Preferences
and Rights relating to the Convertible Preferred Shares (the
"Certificate of Designations"), such shares of Common Stock will be
validly issued, fully paid and non-assessable, and the issuance of such
shares of Common Stock will not be subject to any preemptive or similar
rights.]
[(i) The Debt Securities issuable upon conversion of the
Convertible Preferred Shares have been duly authorized, and, if and
when the Convertible Preferred Shares are converted into Debt
Securities in accordance with the Certificate of Designations of
Powers, Preferences and Rights relating to the Convertible Preferred
Shares (the "Certificate of Designations"), and such Debt Securities
are duly executed and delivered by the Company pursuant to the terms
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of this Agreement and the Certificate of Designations and authenticated
by the applicable trustee, such Debt Securities will be valid and
binding obligations of the Company enforceable in accordance with their
terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time and subject to
general equity principles.]
(j) Assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, each Depositary Share will
represent an interest in [one-quarter] of a validly issued,
outstanding, fully paid and non-assessable [Convertible] Preferred
Share; assuming due execution and delivery of the Depositary Receipts
by the Depositary pursuant to the Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company.
(m) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Certificate of Designations [of Powers, Preferences and Rights
relating to the Preferred Shares (the "Certificate of Designations")]
and the Deposit Agreement will not contravene any provision of
applicable law or conflict with or constitute a default under any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary nor will any such actions result in a violation of the
charter or by-laws of the Company; no consent, approval or
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Certificate of Designations and
the Deposit Agreement, except such as have been obtained under the Act
and such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Depositary
Shares.
(n) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
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(o) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any contracts or other documents that are required to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that are not
described, referred to or filed as required.
(p) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain, any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph (p) do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information concerning any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $_____ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _____ Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Article IV hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of
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Additional Shares (subject to such adjustments to eliminate fractional shares as
the Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of Firm Shares set
forth in Schedule I hereto opposite the name of such Underwriter bears to the
total number of Firm Shares set forth in Schedule I hereto.
[The Company hereby agrees that, without the prior written consent of
the Representatives, it will not file any registration statement with the
Commission in respect of any shares of Common Stock of the Company or offer,
sell, contract to sell or otherwise dispose of any shares of such Common Stock
or any securities convertible into or exercisable or exchangeable for such
Common Stock for a period of _____ days after the date of this Agreement, other
than (i) the Convertible Preferred Shares, (ii) the shares of Common Stock
issuable upon conversion of the Convertible Preferred Shares, (iii) any shares
of such Common Stock sold upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (iv) any shares of such
Common Stock registered, offered or issued, or options in respect of such Common
Stock granted, in connection with any employee benefit plans of the Company or
any of its subsidiaries (including employee benefit plans assumed by the Company
or any of its subsidiaries in connection with an acquisition by the Company),
(v) any shares of such Common Stock registered, offered or issued in connection
with the Company's dividend reinvestment plan or (vi) any shares of such Common
Stock registered, offered or issued in connection with an acquisition by the
Company.]
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Depositary Shares as soon
after this Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the Depositary Shares are to be offered
to the public initially at $_____ per Depositary Share (the public offering
price) plus accrued dividends, if any, and to certain dealers selected by you at
a price that represents a concession not in excess of $.__ per Depositary Share
under the public offering price, and that the Underwriters may allow, and such
dealers may reallow, a concession, not in excess of $.__ per Depositary Share,
to any Underwriter or to certain other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of ____________, _____, New York,
New York, at 10:00 A.M., local time, on _________, _____, or at such other time
on the same or such other date, not later than _____________, ____, as shall be
designated in writing by you. The time and date of such delivery and payment are
hereinafter referred to as the Closing Date.
Delivery of any Additional Shares shall be made, against payment
therefor in immediately available funds, at the office of __________________,
________________, New York, New York, at 10:00 A.M., local time, on such date
(which may be the same as the
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Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be designated in a written notice from the Representatives to the
Company of their determination, on behalf of the Underwriters, to purchase a
number, specified in said notice, of Additional Shares, or on such other date,
in any event not later than __________, ______, as shall be designated in
writing by the Representatives. The time and date of such delivery and payment
are hereinafter referred to as the Option Closing Date. The notice of the
determination to exercise the option to purchase Additional Shares and of the
Option Closing Date may be given at any time within 30 days after the date of
this Agreement.
Payment for the Firm Shares and Additional Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing the Firm Shares or Additional Shares, as the case may be,
registered in such names and in such denominations as you shall request in
writing not later than two full business days prior to the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
connection with the transfer of the Depositary Shares to the Underwriters duly
paid.
V.
The several obligations of the Underwriters hereunder to purchase
Depository Shares on the Closing Date are subject to the following conditions:
(a) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus, that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the Depositary
Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a) above and to the
effect that the representations and warranties of the Company contained
in this Agreement shall be true and correct as of the Closing Date and
the Company shall have performed all of its obligations to be performed
hereunder on or prior to the Closing Date.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx X. Xxxxxx, Esq., Executive Vice President and General Counsel
of the Company, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the
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State of Delaware, is duly registered as a bank holding
company under the Bank Holding Act of 1956, has the corporate
power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) each Bank Subsidiary has been duly organized and
is validly existing as a national banking association under
the laws of the United States, and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of the business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of
each Bank Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C.
ss.55) non-assessable, and all outstanding shares of such
capital stock are owned directly or indirectly 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 authorized capital stock of the Company, the
Depositary Shares, the Depositary Receipts and the Deposit
Agreement conform as to legal matters to the descriptions
thereof contained in the Prospectus;
[(v) the shares of Common Stock outstanding prior to
the issuance of the Convertible Preferred Shares have been
duly and validly authorized and are issued and are fully paid
and non-assessable;]
(vi) the [Convertible] Preferred Shares, and the
deposit of [Convertible] Preferred Shares by the Company in
accordance with the Deposit Agreement, have been duly
authorized and, when issued and delivered in accordance with
the terms of this Agreement, the [Convertible] Preferred
Shares will be validly issued, fully paid and non-assessable,
and the issuance of such
8
[Convertible] Preferred Shares is not subject to any
preemptive or similar rights;
[(vii) the shares of Common Stock issuable upon
conversion of the Convertible Preferred Shares have been duly
authorized and reserved for issuance upon such conversion,
and, if and when the Convertible Preferred Shares are
converted into shares of Common Stock in accordance with the
Certificate of Designations, such shares of Common Stock will
be validly issued, fully paid and non-assessable, and the
issuance of such shares of Common Stock will not be subject to
any preemptive or similar rights;]
[(viii) the Debt Securities issuable upon conversion
of the Convertible Preferred Shares have been duly authorized,
and, if and when the Convertible Preferred Shares are
converted into Debt Securities in accordance with the
Certificate of Designations, and such Debt Securities are duly
executed and delivered by the Company pursuant to the terms of
this Agreement and the Certificate of Designation and
authenticated by the appropriate trustee, such Debt Securities
will be valid and binding obligations of the Company
enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time and subject to
general equity principles;]
(ix) assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary, each
Depositary Share will represent an interest in [one-quarter]
of a validly issued, outstanding, fully paid and
non-assessable [Convertible] Preferred Share; assuming due
execution and delivery of the Depositary Receipts by the
Depositary pursuant to the Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(x) this Agreement has been duly authorized, executed
and delivered by the Company;
(xi) the Deposit Agreement has been duly authorized
and delivered by the Company and is a valid and binding
agreement of the Company;
9
(xii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Certificate of Designations and the
Deposit Agreement will not contravene any provision of
applicable law or conflict with or constitute a default under
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, nor will any of such actions
result in a violation of the charter or by-laws of the
Company; no consent, approval or authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Certificate of Designations and the
Deposit Agreement, except such as have been obtained under the
Act and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and
sale of the Depositary Shares by the Underwriters;
(xiii) the statements (x) in the Basic Prospectus
under "Description of Preferred Stock", "Description of
Depositary Shares", ["Description of Common Stock",]
["Description of Debt Securities",] and "Plan of Distribution"
and (y) in the prospectus supplement specifically relating to
the [Convertible] Preferred Shares [and][,] the Depositary
Shares [and the Common Stock issuable upon conversion of the
Convertible Preferred Shares] [and the Debt Securities
issuable upon conversion of the Convertible Preferred Shares]
under "Description of Capital Stock", "Description of
Depositary Shares" and "Underwriters", and (z) under the
caption "Regulation and Supervision" in the Company's latest
Annual Report on Form 10-K that is incorporated by reference
in the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(xiv) after due inquiry, such counsel does not know
of any legal or governmental proceeding pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any contracts or other documents that are
required to be
10
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as
required; and
(xv) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
the Prospectus (except for financial statements and schedules
as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects
with the Exchange Act and the rules and regulations of the
Commission thereunder, (2) is of the opinion that the
Registration Statement and the Prospectus and any supplements
or amendments thereto (except for financial statements and
schedules as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Act and the rules and regulations of the Commission thereunder
and (3) believes that (except for financial statements and
schedules as to which such counsel need not express any
belief) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, included therein at
the time the Registration Statement became effective did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
___________________________, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in subparagraphs (vi),
(vii), (viii), (ix), (x) and (xiii) [(but only as to the statements (A)
in the Basic Prospectus under "Description of Preferred Shares",
"Description of Depositary Shares", "Description of Common Stock",
"Description of Debt Securities" and "Plan of Distribution", and (B) in
the prospectus supplement specifically relating to the [Convertible]
Preferred Shares [and[,] the Depositary Shares [and the Common Stock
issuable upon conversion of the Convertible Preferred Shares] [and the
Debt Securities issuable upon conversion of the Convertible Preferred
Shares under "Description of Capital Stock", "Description of Depositary
Shares" and "Underwriters")] and clauses (2) and (3) of (xv) of
paragraph (c) above.
With respect to subparagraph (xv) of paragraph (c) above,
Xxxxxxx X. Xxxxxx, Esq. may state that his opinion and belief are based
on his participation in the preparation of the Registration Statement
and the Prospectus and any
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amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to clauses (2) and (3) of subparagraph (xv) of paragraph (c)
above, _________________ may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendments of supplements thereto
(other than the documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
(e) You shall have received on the date of this Agreement a
letter dated such date and also on the Closing Date a letter dated the
Closing Date, in each case in form and substance satisfactory to you
and the Company, from KPMG LLP, independent public accountants,
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 or
incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto
but including documents incorporated therein by reference) and, during
the period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated therein by reference and any
supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus prior to the Closing Date or the Option
Closing Date, as the case may be, to furnish you a copy of each such
proposed amendment or supplement, and to file no such proposed
amendment or supplement to which you reasonably object.
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(c) If, during such period after the first date of the public
offering of the Depositary Shares as in the opinion of your counsel the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or a dealer, any event shall occur as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein in light of the circumstances
under which they were made not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with the Act or the
Exchange Act, forthwith to prepare and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Depositary Shares may have been sold
by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus which will
correct such statement or omission or will effect such compliance.
(d) To endeavor to qualify the Depositary Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection therewith as well as all fees
payable in connection with the review (if any) of the offering of the
Depositary Shares by the National Association of Securities Dealers,
Inc.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering the
twelve-month period ending __________, _____, that satisfies the
provisions of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder.
[(f) To endeavor to list the Depositary Shares on the New York
Stock Exchange.]
VII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein; provided, however, that such indemnity with respect to the Basic
Prospectus or any preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person
13
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Depositary Shares which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) excluding documents incorporated therein
by reference at or prior to the confirmation of the sale of such Depositary
Shares 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 prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, 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 information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the indemnifying party) in writing
and 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 retain 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 indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the 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. In the case of any
such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by __________________.
In the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
14
If the indemnification provided for in the first or second paragraph of
this Article VII is unavailable to an indemnified party 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 Company and the Underwriters from the offering of the
Depositary Shares 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 Company and of the Underwriters 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 Company and the Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate public offering price of
the Depositary Shares. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII 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 the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Depositary Shares.
VIII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on the New York Stock Exchange,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New
15
York State authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or declaration by the United States of national
emergency or war that, in your judgment, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event
singly or together with any other such event makes it, in your judgment,
impracticable to market the Depositary Shares on the terms and in the manner
contemplated in the Prospectus.
IX.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Depositary
Shares that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Depositary Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Depositary Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
number of Firm Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Depositary Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Depositary Shares that any Underwriter has
agreed to purchase pursuant to Article II be increased pursuant to this Article
IX by an amount in excess of one-ninth of such number of Depositary Shares
without the written consent of such Underwriter. If, on the Closing Date, or the
Option Closing Date, as the case may be, any Underwriter or Underwriters shall
fail or refuse to purchase Depository Shares and the aggregate number of
Depositary Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Depositary Shares to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such Depositary Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date or the Option Closing Date, as the
case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
16
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
XXXXX FARGO & COMPANY
By___________________________________
Its_____________________________
Accepted, ________, ____
------------------------------------
By__________________________________
Its____________________________
------------------------------------
By__________________________________
Its____________________________
Each acting severally on behalf of
itself and the several Underwriters
named herein.
17
SCHEDULE I
Number of
Underwriter Depositary Shares
----------- -----------------
Total
