Exhibit 1.1
Wells Fargo Capital
X
5.95% Capital
Securities
(liquidation amount $1,000 per
Capital Security)
guaranteed to the extent set
forth in the Guarantee Agreement by
Wells Fargo &
Company
Underwriting
Agreement
November 27, 2006
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Wells Fargo Capital X, a statutory
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”),
$750,000,000 of its 5.95% Capital Securities, liquidation amount
$1,000 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 December 5, 2006 (the
“Guarantee Agreement”) between the Guarantor and The
Bank of New York 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 Note Purchase
Agreement to be dated as of December 5, 2006 between the Trust
and the Guarantor (the “Note Purchase Agreement”), to
purchase from the Guarantor $751,000,000 aggregate principal amount
of its 5.95% Capital Efficient Notes (the “Notes”) to
be issued under an Indenture dated as of August 1, 2005
between the Guarantor and The Bank of New York Trust Company, N.A.
(successor to J.P. Morgan Trust Company, National Association), as
trustee (the “Note Trustee”), as supplemented by the
First Supplemental Indenture dated as of December 5, 2006
between the Guarantor and the Note Trustee (together, the
“Indenture”). 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 March 4, 2003 executed by
Wells Fargo, as depositor, and by Barbara S. Brett and Laurel A.
Holschuh, as administrative trustees of the Trust and by Wilmington
Trust Company, as Delaware trustee (the “Delaware
Trustee”), as amended by the Amended and Restated Declaration
of Trust and Trust Agreement (the “Trust Agreement”)
among Wells Fargo, the administrative trustees named therein (the
“Administrative Trustees”), the Delaware Trustee and
the property trustee named therein (the “Property
Trustee”) dated as of the date hereof. 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”)
an automatic shelf registration statement on such Form as defined
in Rule 405 under the Act (the file number of which is set forth in
Schedule I hereto) for the registration under the Act of the
Capital Securities, the Guarantee and the Notes. Such registration
statement, including any amendments thereto, became effective upon
filing. 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 Notes in
substantially the form heretofore delivered to you. Such
registration statement, including all exhibits thereto (but
excluding the Statements of Eligibility on Form T-1), as amended at
the date of this Agreement, and including any prospectus supplement
relating to the Capital Securities, the Guarantee and the Notes
that is filed with the Commission pursuant to Rule 424(b) under the
Act and deemed part of such registration statement pursuant to Rule
430B under the Act, is hereinafter called the “Registration
Statement”; such prospectus relating to the Capital
Securities, the Guarantee and the Notes 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 been or will be 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.
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(b) As of the date hereof, when the
Final Prospectus is first filed pursuant to Rule 424(b) under
the Act, when, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in
the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement, as
amended as of any such time, and the Final Prospectus, as amended
or supplemented as of any such time, the Indenture, the Trust
Agreement and the Guarantee Agreement will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act 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 on Form T-1 under the Trust Indenture Act
of the Note 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 (it being
understood and agreed that the only such information contained in
the Registration Statement or Final Prospectus furnished by any
Underwriter consists of such information described as such in a
letter dated the Closing Date the (“Blood Letter”)
delivered by the Representatives to the Trust and the
Guarantor).
(c) At the Applicable Time, the
Disclosure Package does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Trust or the Guarantor by any Underwriter through
the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in the Blood Letter.
(d)(i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or
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form of prospectus) and
(iii) at the time the Trust or the Guarantor or any person
acting on their behalf (within the meaning, for this clause only,
of Rule 163(c) under the Act) made any offer relating to the
Capital Securities, the Guarantee and the Notes in reliance on the
exemption in Rule 163 under the Act, the Trust and the Guarantor
were or are (as the case may be) each a “well-known seasoned
issuer” as defined in Rule 405 under the Act. The Guarantor
agrees to pay the fees required by the Commission relating to the
Capital Securities, the Guarantee and the Notes within the time
required by Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Act.
(e) At the earliest time after the
filing of the Registration Statement that the Trust, the Guarantor
or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Capital Securities,
the Guarantee and the Notes, each of the Trust and the Guarantor
was not and is not an Ineligible Issuer (as defined in Rule 405
under the Act), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the
Trust and the Guarantor be considered an Ineligible
Issuer.
(f) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Trust or the
Guarantor by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in the
Blood Letter.
(g) Certain Definitions. For
purposes hereof:
(i) “Disclosure Package”
shall mean (A) the Basic Prospectus, as amended and
supplemented to the Applicable Time, including the Preliminary
Final Prospectus, (B) the Issuer Free Writing Prospectuses
identified in Schedule III hereto, and (C) any other Free
Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package.
(ii) “Applicable Time”
shall mean the Applicable Time listed in Schedule I
hereto.
(iii) “Free Writing
Prospectus” shall mean a free writing prospectus, as defined
in Rule 405 under the Act.
(iv) “Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433 under the Act, that (A) is required to be
filed with the Commission by the Trust or the Guarantor or
(B) is exempt from
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filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Capital Securities, the
Guarantee and the Notes or the offering that does not reflect the
final terms.
2. Purchase and Sale
.
(a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Trust agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Trust, the liquidation amount of the Capital Securities
set forth opposite such Underwriter’s name in
Schedule II hereto at a purchase price of $1,000 (the
“Purchase Price”) per Capital Security, plus any
accumulated distributions thereon.
(b) In consideration of such
purchases on the Closing Date, the proceeds of which will be used
to purchase the Notes, the Guarantor shall pay to the Underwriters
as compensation, in immediately available funds, on the Closing
Date $10.00 per Capital Security, or an aggregate of
$7,500,000.
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,
N.A. as custodian for The Depository Trust Company
(“DTC”) for credit to the respective accounts of the
Underwriters and registered in the name of Cede & Co., as
nominee for DTC. Interests in the permanent global Capital
Securities will be held only in book-entry form through DTC, except
in the limited circumstances described in the Final
Prospectus.
4. Agreements . The Trust and
the Guarantor jointly and severally agree with the several
Underwriters that:
(a) The Trust or the Guarantor will
provide to counsel for the Underwriters one manually executed copy
of the Registration Statement, including all exhibits thereto, in
the form it became effective and all amendments thereto. Prior to
the Closing Date, the Trust and the Guarantor will not file any
amendment of the Registration Statement or supplement (including
the Final Prospectus) to the Basic Prospectus unless the Trust or
the Guarantor has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement
to which you reasonably object promptly after notice thereof.
Neither the 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,
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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 Notes 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 of any notice that would prevent its use, 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) The Trust or the Guarantor will
prepare a final term sheet in a form approved by you and will file
such term sheet pursuant to Rule 433(d)(5)(ii) under the Act within
the time required by such Rule. Any such final term sheet shall be
an Issuer Free Writing Prospectus.
(c) If there occurs an event or
development as a result of which the Disclosure Package would
include an untrue statement of a material fact or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not
misleading, the Trust or the Guarantor will notify promptly the
Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented.
(d) If, at any time when a
prospectus relating to the Capital Securities, the Guarantee and
the Notes is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 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, including in connection with the use or delivery of the
Final Prospectus, the Trust or the Guarantor will promptly notify
you and, upon your request, the Trust and the Guarantor will
prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Representatives’
request for, nor
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the Underwriters’ delivery of,
any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 5 hereof.
(e) 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.
(f) 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 (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Act), as many copies of
any Preliminary Final Prospectus, the Final Prospectus and each
Issuer Free Writing Prospectus included in the Disclosure Package
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.
(g) 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 and 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.
(h) 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 that are substantially similar to the
Capital Securities (other than commercial paper) and are covered by
the Registration Statement or any other registration statement
filed under the Act.
(i) The Trust and the Guarantor each
agree that, unless it obtains the prior written consent of the
Representatives, and each Underwriter, severally and not jointly,
agrees with the Trust and the Guarantor that, unless it has
obtained or will obtain, as the case may be, the prior written
consent of the Trust and the Guarantor, it has not made and will
not make any offer relating to the Capital Securities, the
Guarantee and the Notes that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a Free
Writing Prospectus required to be filed with the Commission or
retained by the Trust or the Guarantor under Rule 433 under the
Act; provided that the prior written consent of the
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parties hereto shall be deemed to
have been given in respect of the Free Writing Prospectuses
included in Schedule III hereto. Any such Free Writing Prospectus
consented to by the Representatives or the Trust and the Guarantor
is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Trust and the Guarantor each agree that
(A) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (B) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 under the
Act applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and
record keeping.
(j) 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 Notes, 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,
the Free Writing Prospectuses included in Schedule III hereto or
the Final Prospectus. The Guarantor will also pay all fees and
expenses of the Note Trustee, including the fees and disbursements
of counsel for the Note Trustee in connection with the Indenture
and the Notes; 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.
(k) 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, the Euroclear System and
Clearstream Banking S.A., as applicable.
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, or any notice under Rule 401(g)(2) that would prevent its
use, shall have been issued and no proceedings for that purpose
shall have been instituted or threatened by the Commission; 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; and the final term sheet contemplated by
Section 4(b) hereto, and any other material required to be
filed by the Trust or the Guarantor pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433
under the Act.
(b) The Trust and the Guarantor
shall have furnished to the Representatives the opinion of Mary E.
Schaffner, Senior Counsel of the Guarantor, or another senior
lawyer of the Guarantor satisfactory to the Representatives, 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 Disclosure Package or 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;
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 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. §55 in the case of Wells Fargo Bank)
nonassessable, and are owned directly or indirectly by the
Guarantor free and clear of any perfected security interest and, to
the knowledge of such counsel, any other security interests,
claims, liens or encumbrances;
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(iv) the number and type of equity
securities the Guarantor is authorized to issue is as set forth in
the Disclosure Package or the Final Prospectus;
(v) to such counsel’s
knowledge, there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the Disclosure
Package or 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 Notes, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment
of the terms hereof or the Indenture, the Notes, 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
F
