EXHIBIT 1.1
WELLS FARGO CAPITAL IV
7% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $25 PER CAPITAL SECURITY)
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEE AGREEMENT BY
WELLS FARGO & COMPANY
UNDERWRITING AGREEMENT
August 22, 2001
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Wells Fargo Capital IV, 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 representatives (the "Representatives"), 52,000,000 of its 7% Capital
Securities, liquidation amount $25 per Capital 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
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
The Capital Securities will be guaranteed (the "Guarantee") by Wells
Fargo & Company, a Delaware corporation ("Wells Fargo" or the "Guarantor"), to
the extent described in a Guarantee Agreement to be dated as of August 29, 2001
(the "Guarantee Agreement") between the Guarantor and Bank One Trust Company,
N.A., 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 August 29, 2001 between the Trust and the Guarantor (the "Debenture Purchase
Agreement"), to purchase from the Guarantor $1,340,206,200 aggregate principal
amount of its 7% Junior Subordinated Debentures due September 1, 2031 (the
"Debentures") to be issued under an Indenture to be dated as of August 29, 2001
(the "Indenture") between the Guarantor and 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 August 7, 2001 executed by Wells Fargo, as depositor, and
by Barbara S. Brett and Laurel A.
Holschuh, as administrative trustees of the Trust (the "Administrative
Trustees") 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
Wells Fargo, the Administrative Trustees, the Delaware Trustee and the property
trustee named therein (the "Property Trustee") filed as exhibit 4(mm) to the
Registration Statement on Form S-3 (Registration No. 333-67120). 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 hereinafter defined), any amendment to the
Registration Statement becomes
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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
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 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.
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 $40,950,000.
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
Representatives, the Trust and the Guarantor or as provided in Section 8 hereof
(such date and time of delivery and payment for the Capital Securities being
herein called the "Closing Date"). Delivery of the Capital Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof in 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 Wells Fargo Bank Minnesota, 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
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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
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof. Subject to the foregoing
sentence, the Trust and the Guarantor will cause the Final
Prospectus to be filed pursuant to Rule 424(b) under the Act not
later than the close of business on the second business day
following the execution and delivery of this Agreement. The Trust
and the Guarantor will promptly advise the Representatives (i) when
the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b), (ii) when any amendment to the Registration
Statement relating to the Capital Securities, the Guarantee and the
Debentures shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Trust or the Guarantor of
any notification with respect to the suspension of the qualification
of the Capital Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. In the
event of the issuance of any stop order preventing or suspending the
use of any Preliminary Final Prospectus or Final Prospectus, the
Trust and the Guarantor will use promptly their best efforts to
obtain the withdrawal of such stop order.
(b) If, at any time when a prospectus relating to the Capital
Securities, 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 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
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compliance. Neither the Representatives' request for, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(c) As soon as practicable, the Guarantor, on behalf of the
Trust, will make generally available to the Trust's security holders
an earnings statement or statements of the Guarantor and the
Guarantor's subsidiaries which will satisfy the provisions of
Section 11(a) of the Act.
(d) The Trust and the Guarantor will furnish to the
Representatives and counsel for the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto)
and each amendment thereto which shall become effective on or prior
to the Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives
may reasonably request. The Guarantor will pay the expenses of
printing or other production of all documents relating to the
offering and the expenses incurred in distributing the Final
Prospectus to the Underwriters.
(e) The Trust and the Guarantor will arrange for the
qualification of the Capital Securities for sale under the laws of
such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required to
complete the distribution of the Capital Securities; PROVIDED,
HOWEVER, that 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
Representatives, 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 reasonable efforts promptly
to list the Capital Securities on a stock exchange agreed upon by
the Trust, the Guarantor and the Representatives. The Trust and the
Guarantor will use all commercially reasonable efforts to comply
with the rules of the New York Stock Exchange and will otherwise
comply with any undertakings given by it from time to time to the
New York Stock Exchange in
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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
Representatives may designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Capital Securities 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
Representatives 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 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
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hereof, to the performance by the Trust and the Guarantor of their obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission; and the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424(b)
not later than the close of business on the second business day
following the execution and delivery of this Agreement.
(b) The Trust and the Guarantor shall have furnished to the
Representatives the opinion of Stanley S. Stroup, Executive Vice
President and General Counsel of the Guarantor, dated the Closing
Date, to the effect that:
(i) the Guarantor has been duly incorporated and is a
validly existing corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority to
own its properties and conduct its business as described in the
Final Prospectus, and is duly registered as a financial holding
company and a bank holding company under the Bank Holding
Company Act of 1956, as amended; each of Wells Fargo Bank
Minnesota, National Association ("Wells Minnesota") and Wells
Fargo Bank, National Association ("Wells 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 Wells Minnesota and Wells 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. (S)55 in the case of Wells Fargo Bank and
Wells Minnesota) 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;
(iv) the number and type of equity securities the
Guarantor is authorized to issue is as set forth in the Final
Prospectus;
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(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 Representatives)
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 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
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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
Company 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 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
respective effective or issue dates (other than the financial
statements and other financial and statistical information
contained therein and other than statements furnished in
writing to the Guarantor or the Trust by or on behalf of an
Underwriter through the Representatives, 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
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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 and other than statements
furnished in writing to the Guarantor or the Trust by or on
behalf of an Underwriter through the Representatives, 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 and other than statements
furnished in writing to the Guarantor or the Trust by or on
behalf of an Underwriter through the Representatives, 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 in connection with the
purchase and distribution of the Capital Securities by the
Underwriters.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the States of Minnesota and California and the Delaware General
Corporation Law or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of counsel who are
satisfactory to counsel for the Underwriters; and (B) as to matters
of fact, to the extent deemed proper, on certificates of responsible
officers of the Trust and the Guarantor and its subsidiaries and
public officials.
(c) The Representatives shall have received the opinion of
Pepper Hamilton LLP, counsel to Bank One Trust Company, N.A., 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) Bank One Trust Company, N.A. is duly incorporated
and is validly existing in good standing as a banking
corporation under the law of the State of Delaware.
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(ii) Bank One Trust Company, N.A. 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 Bank One Trust Company, N.A. and constitutes a legal, valid and
binding obligation of Bank One Trust Company, N.A., enforceable
against Bank One Trust Company, N.A. in accordance with its terms.
(iv) The execution, delivery and performance by Bank One Trust
Company, N.A. 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 Bank One Trust Company, N.A.
(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 Bank One Trust Company, N.A. is required for the
execution, delivery or performance by Bank One Trust Company, N.A. of
the Trust Agreement, the Indenture and the Guarantee Agreement.
(d) The Representatives shall have received the opinion of Richards,
Layton & Finger, as special Delaware counsel to the Trust and the
Guarantor, dated the Closing Date, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business 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).
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(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 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 Representatives shall have received from their 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 Representatives
12
may reasonably require, and the Trust and the Guarantor shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) Each of the Trust and the Guarantor shall have furnished to the
Representatives a certificate, signed, with respect to the Trust, by an
Administrative Trustee of the Trust and, with respect to the Guarantor, 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
(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
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated the Closing Date,
in substantially the form attached hereto as Exhibit A.
(h) As of the Closing Date, there shall not have occurred since the
date hereof any change in the condition, financial or otherwise, or in the
earnings, business, properties, results of operations or business prospects
of the Trust, the Guarantor and the Guarantor's subsidiaries, taken as a
whole, from that set forth in the Final Prospectus, as amended or
supplemented as of the date hereof, that, in the judgment of the
Representatives, is material and adverse and that makes it, in the judgment
of the Representatives, impracticable to market the Capital
13
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 Representatives,
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
Representatives and their 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 Representatives. 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.
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
14
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 Representatives
specifically for use therein (it being understood and agreed that the only
such information furnished by any Underwriter consists of such information
described as such in Schedule I hereto); and (ii) with respect to any
untrue statement or alleged untrue statement in or omission or alleged
omission from the Basic Prospectus or any Preliminary Final Prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such losses, claims, damages or
liabilities purchased the Capital Securities concerned, to the extent that
the Final Prospectus relating to such Capital Securities was required to be
delivered by such Underwriter under the Act in connection with such
purchase and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Preliminary Final Prospectus was corrected
in the Final Prospectus as amended or supplemented if the Trust 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 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 Representatives for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action (including any governmental
investigation), such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein, and to the
extent that it shall wish, jointly, with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of
15
the indemnified party, be counsel to the indemnifying party). In any such
proceeding, any indemnified party shall have the right to obtain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnified party and the indemnifying
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interests between
them. It is understood that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate identified firm (in
addition to any identified local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Representatives
that are indemnified parties in the case of parties to be indemnified
pursuant to paragraph (a) of this Section 7 and by the Guarantor in the
case of parties to be indemnified pursuant to paragraph (b) of this Section
7. An indemnifying party shall not be liable for any settlement of any
proceeding effected without its prior written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld or
delayed), effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and (ii)
does not include a statement as to, or an admission of, fault, culpability
or a 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
16
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
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
17
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 Representatives 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
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Trust 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 agrees that it will, to the best of
its knowledge and belief, comply with all applicable securities laws and
regulations in force in any jurisdiction in which it purchases, offers, sells or
delivers the Capital Securities or possesses or distributes any Preliminary
Final Prospectus or the Final Prospectus, and will obtain any required consent,
approval or permission for its purchase, offer, sale or delivery of the Capital
Securities under the laws and regulations in force in any jurisdiction to which
it is subject or in which it makes any such purchases, offers, sales or
deliveries. 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 Representatives, by notice given to the Trust and the
Guarantor prior to delivery of and payment for the Capital Securities, if prior
to such time there shall have occurred any (i) suspension or material limitation
of trading generally on the New York Stock Exchange, (ii) suspension of trading
of any securities of the Guarantor on any exchange or in any over-the-counter
market, (iii) declaration of a general moratorium on commercial banking
activities in California or New York by either Federal or state authorities,
(iv) lowering of the rating assigned to any debt securities of the Guarantor by
any nationally-recognized securities rating agency or public announcement by any
such rating agency that it has under surveillance or review, with possible
negative consequences, its rating of any debt securities of the Guarantor or (v)
outbreak or escalation of hostilities in which the United States is involved,
declaration of war by Congress or change in financial markets or calamity or
crisis that, in the judgment of the Representatives, is material and adverse
and, in the case of any of the events described in clauses (i) through (v), such
event, either alone or together with any other such event, makes it,
18
in the judgment of the Representatives, impracticable to proceed with completion
of the public offering of, or sale of and payment for, the Capital Securities.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Trust, the
Guarantor or their officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Trust or the
Guarantor or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive delivery of and payment for the Capital
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by facsimile, telex, telecopier, or telegram and confirmed to the
recipient, and any such notice shall be effective when received if sent to the
Representatives, at the address specified in Schedule I hereto, or if sent to
the Trust, at Wells Fargo Center, MAC: N9305-173, Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479 or to the Guarantor, at 444 Market Street,
MAC: 0195-171, San Francisco, California, 94111.
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.
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.
19
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,
WELLS FARGO CAPITAL IV
By WELLS FARGO & COMPANY, as Depositor
By: /s/ Barbara S. Brett
------------------------------------
Name: Barbara S. Brett
Title: Assistant Treasurer
WELLS FARGO & COMPANY
By: /s/ Barbara S. Brett
------------------------------------
Name: Barbara S. Brett
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
MORGAN STANLEY & CO. INCORPORATED
WELLS FARGO VAN KASPER, LLC
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III
-----------------------------------
Name: Harold J. Hendershot III
Title: Executive Director
WELLS FARGO VAN KASPER, LLC
By: /s/ Karen A. Cheng
-----------------------------------
Name: Karen A. Cheng
Title: Vice President
SCHEDULE I
Underwriting Agreement dated August 22, 2001 (the "Agreement")
Registration Statement No. 333-67120
Representatives, including addresses:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Financing Services Group
Fax: (212) 761-0783
Wells Fargo Van Kasper, LLC
600 California Street, Suite 1700
San Francisco, California 94108
Fax: (415) 397-2744
Title, Purchase Price and Description of Capital Securities:
Title: 7% Capital Securities
Number: 52,000,000
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: 7% per Capital Security
Distribution Dates: March 1, June 1, September 1, and December 1,
beginning on December 1, 2001
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: September 1, 2031
Redemption: As specified in the Final Prospectus
I-1
Provisions regarding repayment at the option of Holders: None
Deferral of Interest: As specified in the Final Prospectus
Closing Date, Time and Location: August 29, 2001, 9:00 a.m., New York City
time, at the offices of Faegre & Benson LLP, 2200 Wells Fargo Center, 90 South
Seventh Street, Minneapolis, Minnesota 55402.
Information Supplied by Underwriters: For purposes of Sections 7(a) and 7(b) of
the Agreement, the only information furnished to the Trust and the Guarantor by
any Underwriter for use in any Preliminary Final Prospectus or the Final
Prospectus consists of: (i) the names of the Underwriters contained on the
cover page and in the table under the caption "Underwriters" therein, (ii) the
concession and reallowance figures contained in the third paragraph under the
caption "Underwriters" therein, (iii) the third sentence of the sixth paragraph
under the caption "Underwriters" therein, (iv) the eighth paragraph under the
caption "Underwriters" therein, and (v) the eleventh paragraph under the caption
"Underwriters" therein.
I-2
SCHEDULE II
UNDERWRITER NUMBER OF CAPITAL
- ----------
SECURITIES TO BE
PURCHASED
---------
Morgan Stanley & Co. Incorporated....................................... 5,208,000
Wells Fargo Van Kasper, LLC............................................. 5,207,750
A.G. Edwards & Sons, Inc................................................ 5,207,750
Deutsche Banc Alex. Brown Inc........................................... 5,207,750
Lehman Brothers Inc..................................................... 5,207,750
Merrill Lynch, Pierce, Fenner & Smith Incorporated...................... 5,207,750
Prudential Securities Incorporated...................................... 5,207,750
Salomon Smith Barney Inc................................................ 5,207,750
UBS Warburg LLC......................................................... 5,207,750
ABN AMRO Incorporated................................................... 285,000
Banc One Capital Markets, Inc........................................... 285,000
Barclays Capital Inc.................................................... 285,000
Bear, Stearns & Co. Inc................................................. 285,000
BNY Capital Markets, Inc................................................ 285,000
CIBC World Markets Corp................................................. 285,000
Credit Suisse First Boston Corporation.................................. 285,000
Dain Rauscher Wessels................................................... 285,000
First Albany Corporation................................................ 285,000
Goldman, Sachs & Co..................................................... 285,000
H&R Block Financial Advisors, Inc....................................... 285,000
II-1
HSBC Securities (USA) Inc............................................... 285,000
J.P. Morgan Securities Inc.............................................. 285,000
Legg Mason Wood Walker Incorporated..................................... 285,000
Mellon Financial Markets, LLC........................................... 285,000
Quick and Reilly........................................................ 285,000
Charles Schwab & Co., Inc............................................... 285,000
Westdeutsche Landesbank Girozentrale.................................... 285,000
----------
Total.............................................................. 52,000,000
II-2