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EXHIBIT 1.1
WACHOVIA
CORPORATION
3,500,000
Shares
Fixed-to-Floating Rate
Non-Cumulative Perpetual
Class A Preferred
Stock, Series K, No Par Value
Underwriting
Agreement
February 5,
2008
Wachovia Capital Markets, LLC
As representative (the
“ Representative ”) of the several
underwriters named in
Schedule I
c/o Wachovia Capital Markets,
LLC
Two Wachovia Center
301 South Tryon Street
Charlotte, North Carolina
28288
Ladies and Gentlemen:
Wachovia Corporation (the
“ Company ”), a North Carolina corporation,
proposes to sell to the underwriters named in Schedule I hereto
(the “ Underwriters ”), for whom you are acting
as Representative, an aggregate of 3,500,000 shares of
Fixed-to-Floating Rate Non-Cumulative Perpetual Class A
Preferred Stock, Series K of the Company (the “
Securities ”).
Capitalized terms used herein
and not otherwise defined but that are defined in the Pricing
Prospectus (as defined in Section 1(A)(a)), have the meanings
specified in the Pricing Prospectus.
1. Representations and
Warranties. The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) A registration statement
on Form S-3 (File No. 333-125271) in respect of the Securities
has been filed with the Securities and Exchange Commission (the
“ Commission ”), in the form heretofore
delivered to the Representative (excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included in that registration
statement), has been declared effective by the Commission in such
form; since the delivery to the Representative no other document
with respect thereto or document incorporated by reference therein
has been filed or
transmitted for filing with
the Commission (other than filings by the Company under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and other than preliminary
prospectuses, preliminary prospectus supplements and other
prospectuses filed pursuant to Rule 424(b) of the Securities Act of
1933, as amended (the “ Act ”) or Rule 433 of
the rules and regulations of the Commission under the Act that
relate to securities other than the Securities); and no stop order
suspending the effectiveness of such registration statement or any
part thereof, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission, and no notice
of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the
prospectus filed as part of such registration statement, in the
form in which it was included in such registration statement on the
effective date of such registration statement, is hereinafter
called the “ Effective Date Prospectus ”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act after the Effective Date
Prospectus is hereinafter called a “ Post-Effective Date
Preliminary Prospectus ”; the various parts of such
registration statement, including all exhibits thereto but
excluding Form T-1, and including any prospectus supplement
relating to the Securities that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the
registration statement became effective, are hereinafter
collectively called the “ Registration Statement
”; the Effective Date Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in
Section 1(c) hereof), is hereinafter called the “
Pricing Prospectus ”; the form of the final prospectus
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5 hereof
is hereinafter called the “ Prospectus” ; any
reference herein to the Effective Date Prospectus, the Pricing
Prospectus, any Post-Effective Date Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act, as of the date of such prospectus; any reference
to any amendment or supplement to the Effective Date Prospectus,
any Post-Effective Date Preliminary Prospectus, or the Prospectus,
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Exchange Act and incorporated therein, in each case after the date
of the Effective Date Prospectus, such Post-Effective Date
Preliminary Prospectus or the Prospectus as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Securities is hereinafter called an
“ Issuer Free Writing Prospectus ”).
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(b) No order preventing or
suspending the use of any Post-Effective Date Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each of the Effective Date Prospectus and each
Post-Effective Date Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the
“ Trust Indenture Act ”), and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representative expressly for use therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is 1:00 p.m.
(Eastern time) on the date of this Agreement; the Pricing
Prospectus as supplemented by the final term sheet prepared and
filed pursuant to Section 5(a), taken together (collectively,
the “ Pricing Disclosure Package ”) as of the
Applicable Time, did not include 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; and each Issuer Free Writing
Prospectus listed on Schedule II(a) does not conflict with the
information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include 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; provided, however , that this representation and
warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use
therein.
(d) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
for so long as the delivery of a prospectus is required in
connection with the offering and sale of the Securities (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act), any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may
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be, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however , that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representative expressly for
use therein; and no such documents were filed with the Commission
since the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule
II(b).
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representative expressly for use therein.
(f) The Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has all
power and authority (corporate and other) necessary to own or hold
its material properties and to conduct its business substantially
in the manner in which it presently conducts such
business.
(g) The Securities being
delivered to the Underwriters at the Closing Date have been duly
authorized and, when issued and delivered as provided in this
Agreement, will be duly and validly issued, fully paid and
nonassessable, and will have the rights set forth in the
Company’s Articles of Incorporation, as amended to the
Closing Date, including the Articles of Amendment relating to such
shares (the “ Amendment ”) filed under the North
Carolina Business Corporation Act.
(h) The Company has all
corporate power and authority necessary to execute and deliver this
Agreement and the Securities and to perform its obligations
hereunder and thereunder; the execution, delivery and performance
of this Agreement and the terms of the Securities as established in
the Company’s Articles of Incorporation, as amended to the
Closing Date, and compliance with the provisions hereof and thereof
by the Company will not constitute a breach of
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or default under, the
corporate charter or by-laws of the Company, or, to the best of the
Company’s knowledge any material agreement, indenture or
other instrument relating to indebtedness for money borrowed to
which the Company is a party, or, to the best of the
Company’s knowledge, any law, order, rule, regulation or
decree of any court, governmental agency or authority located in
the United States having jurisdiction over the Company or any
property of the Company, in each case which, breach or default
would be reasonably likely to have a material adverse effect on the
Company and its subsidiaries taken as a whole; and no consent,
authorization or order of, or filing or registration with, any
court or governmental agency or authority is required for the
execution, delivery and performance of this Agreement and the
Securities by the Company except such as have been made or obtained
or will be made or obtained on or before the Closing Date and
except such as may be required under applicable state securities or
“blue sky” laws.
(i) At the earliest time
after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Securities, the
Company was not an “ineligible issuer” as defined in
Rule 405 under the Act.
(j) The Amendment has been
duly filed with the Secretary of State of the State of North
Carolina in accordance with the North Carolina Business Corporation
Act and with all other governmental authorities where such filing
is required in order to be effective under North Carolina
law.
(k) The Securities conform in
all material respects to the descriptions thereof in the
Prospectus.
(l) The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial
reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial
reporting.
(m) Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
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(n) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company
agrees (i) to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule II, the number of
Securities set forth opposite such Underwriter’s name in
Schedule I.
(b) Each Underwriter
represents and agrees with the Company that it will comply with or
observe any restrictions or limitations set forth in the Prospectus
as amended or supplemented on persons to whom, or the jurisdictions
in which, or the manner in which, the Securities may be offered,
sold, resold or delivered.
3. Delivery and
Payment. The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global
certificates in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company (“
DTC ”) or its designated custodian. The Company will
deliver, or cause to be delivered, the Securities to the
Representative for the account of each Underwriter, against payment
by or on behalf of such Underwriter of the purchase price therefor
by wire transfer of Federal (same-day) funds to the account
specified by the Company to the Representative at least twenty-four
hours in advance, by causing DTC to credit the Securities to the
account of the Representative at DTC. The Company will cause the
certificates representing the Securities to be made available to
the Representative for checking prior to the Cloasing Date at the
office of DTC or its designated custodian (the “
Designated Office ”). The time and date of such
delivery and payment, shall be 10:30 a.m., New York City time, on
February 8, 2008 or such other time and date as the
Representatives and the Company may agree upon in writing. Such
time and date for delivery of the Securities is herein called the
“ Closing Date ”.
The documents to be delivered
at the Closing Date by or on behalf of the parties hereto, will be
delivered at the offices of Sullivan & Cromwell LLP, 125
Broad Street, New York, NY 10004 (the “ Closing
Location ”), and the Securities will be delivered at the
Designated Office, all at the Closing Date. A meeting will be held
at the Closing Location at 4:00 p.m., New York City time, on the
New York Business Day next preceding the Closing Date, at which
meeting the final drafts of the documents to be delivered pursuant
to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Agreement, “ New
York Business Day ” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by
law or executive order to close.
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4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale as set forth in the
Pricing Disclosure Package and the Prospectus.
5. Agreements. The
Company agrees with the several Underwriters:
(a) To prepare the Prospectus
in a mutually agreed form and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission’s
close of business on the second business day following the date of
this Agreement; for so long as the delivery of a prospectus is
required in connection with the offering and sale of the Securities
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act), to make no further amendment or any supplement to the
Registration Statement or the Prospectus unless they have furnished
to you a copy for your review prior to filing or transmission for
filing of the same with or to the Commission; for so long as the
delivery of a prospectus is required in connection with the
offering and sale of the Securities (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act), to advise you, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or
any amendment or supplement to the Prospectus has been filed and to
furnish you with copies thereof; to prepare a final term sheet,
containing solely a description of the Securities, in a form
approved by you and to file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such Rule; to file
promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; for so
long as the delivery of a prospectus is required in connection with
the offering and sale of the Securities (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act), to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus; for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the
offering and sale of the Securities, to advise you, promptly after
the Company receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of the Effective Date Prospectus or any
Post-Effective Date Preliminary Prospectus or other prospectus in
respect of the Securities, of any notice of objection of the
Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, for so long as the delivery of a prospectus is
required in connection with the offering and sale of the Securities
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act), in the event of the issuance of any stop order or of any
order preventing or suspending the use of the Effective Date
Prospectus or Post-
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Effective Date Preliminary
Prospectus or other prospectus or suspending any such
qualification, to promptly use their reasonable best efforts to
obtain the withdrawal of such order; and in the event of any such
issuance of a notice of objection, promptly to take such steps
including, without limitation, amending the Registration Statement
or filing a new registration statement, at the Company’s
expense, as may be necessary to permit offers and sales of the
Securities by the Underwriters (references herein to the
Registration Statement shall include any such amendment or new
registration statement).
(b) If required by Rule
430B(h) under the Act, to prepare a form of prospectus in a
mutually agreed form and to file such form of prospectus pursuant
to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or
supplement to such form of prospectus except as mutually
agreed.
(c) If, at any time when a
prospectus relating to the Securities is required to be delivered
under the Act, any event occurs as a result of which the 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 Prospectus to comply with the Act or the
rules and regulations of the Commission thereunder, after receiving
notice or becoming aware of the foregoing, the Company promptly
will prepare and file or transmit for filing with the Commission,
subject to paragraph (a) of this Section 5, an amendment
or supplement that will correct such statement or omission or
effect such compliance.
(d) The Company will make
generally available to its security holders and to the
Representative as soon as practicable, but not later than 45 days
after the end of the 12-month period beginning at the end of the
fiscal quarter of the Company during which the filing, or
transmission for filing, of the Prospectus pursuant to Rule 424
under the Act occurs (except not later than 90 days after the end
of such period if such quarter is the last fiscal quarter), an
earnings statement (which need not be audited) of the Company and
its subsidiaries, covering such 12 month period, which will satisfy
the provisions of Section 11(a) of the Act and the rules and
regulations thereunder.
(e) The Company will use its
reasonable best efforts to furnish in New York City to each of the
Underwriters prior to 1:00 p.m., New York City time, on the
New York Business Day next succeeding the date of this Agreement
and from time to time, as many copies of the Prospectus and all
amendments of and supplements to the Prospectus as may be
reasonably requested, provided that such request, including
the delivery location for such copies of the Prospectus is provided
by such Underwriters in a timely manner. If the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required in connection with the offering
and sale of the Securities and if at the time of such
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offering or sale any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an 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 when such Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, or the Exchange Act, to
notify you and promptly file such do
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