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Exhibit 1.1
EXECUTION VERSION
CORPORATION
3,500,000
Shares
7.50% Non-Cumulative
Perpetual Convertible
Class A Preferred
Stock, Series L, No Par Value
Underwriting
Agreement
Wachovia Capital Markets, LLC
Goldman, Sachs & Co.
As representatives (the
“ Representatives ”) 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 several underwriters named in Schedule I
hereto (the “ Underwriters ”), for whom you are
acting as Representatives, an aggregate of 3,500,000 Shares (the
“ Firm Shares ”) of 7.50% Non-Cumulative
Perpetual Convertible Class A Preferred Stock, Series L, no
par value and with a liquidation preference of $1,000 per share
(the “ Preferred Stock ”), of the Company and,
at the election of the Representatives acting on behalf of the
Underwriters, to issue and sell to the Underwriters up to an
additional 525,000 shares of Preferred Stock (the “
Optional Shares ”, and, together with the Firm Shares,
the “ Securities ”), on the terms and for the
purposes set forth in Section 2 hereof. The Securities will be
convertible into shares of Common Stock, par value $3.33
1 /
3 per
share, of the Company (the “ Common Stock
”).
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) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Act
”), on Form S-3 (File No. 333-150225) in respect of the
Securities has been filed with the Securities and Exchange
Commission (the “ Commission ”) not earlier than
three years prior to the date hereof; such registration statement,
and any post-effective amendments
thereto, became effective on
filing; 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 most recently filed with the
Commission prior to the date of this Agreement 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
Securities Exchange Act of 1934, as amended (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
”).
(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
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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 Representatives expressly for
use therein.
(c) For the purposes of this
Agreement, the “ Applicable Time ” is 8:56 a.m.
(Eastern time) on the date of this Agreement; the Pricing
Prospectus as supplemented by any 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 and any “road
show” (as defined in Rule 433 under the Act) not constituting
an Issuer Free Writing Prospectus and used in connection with the
offering of the Securities, 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 Representatives 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 be, will conform in all material respects to the
requirements of the Act or the
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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 Representatives 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
Representatives 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 each Time of Delivery 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 each Time
of Delivery, including the Articles of Amendment relating to such
shares (the “ Amendment ”) filed under the North
Carolina Business Corporation Act. The shares of Common Stock
issuable upon conversion of the Securities have been duly
authorized and reserved for issuance, when issued in accordance
with the provisions of the Securities, will be duly and validly
issued, fully paid and nonassessable, and will have the rights set
forth in such Articles of Incorporation, as amended to the date
such shares of Common Stock are issued upon the conversion of the
Securities, including the Amendment.
(h) The Company has all
corporate power and authority necessary to execute and deliver this
Agreement and the Securities and to perform its
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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 each Time
of Delivery, and compliance with the provisions hereof and thereof
by the Company, including the issuance of shares of Common Stock
upon conversion of the Securities in accordance with the Amendment,
will not constitute a breach of 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, including the issuance of Common Stock
upon conversion of the Securities in accordance with the Amendment,
except such as have been made or obtained or will be made or
obtained on or before each Time of Delivery 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 and the
Common Stock conform in all material respects to the descriptions
thereof in the Pricing Disclosure Package and 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.
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(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.
(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.
(o) The Company has an
authorized capitalization as set forth in the Pricing Prospectus
and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(p) This Agreement has been
duly authorized, executed and delivered by the Company.
(q) (A) (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
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) 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.
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 Firm
Shares set forth opposite such Underwriter’s name in Schedule
I and (ii) in the event and to the extent that the
Representatives exercise the election to purchase Optional Shares
as provided below, the Company agrees to issue and sell to the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the same purchase
price set forth in Schedule II, the number of the Optional Shares
as to which such election shall have been exercised (to be adjusted
by the Representatives, if
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necessary, so as to eliminate fractions
of Securities) determined by multiplying the number of such
Optional Shares by a fraction, the numerator of which is the
maximum number of Firm Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum
number of Firm Shares that all of the Underwriters are entitled to
purchase hereunder.
(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.
(c) The Company hereby grants
to the Underwriters the one-time right to purchase at the election
of the Representatives up to 525,000 Optional Shares in connection
with the offer and sale of the Firm Shares, as set forth in clause
(i) of Section 2(a) for the sole purpose of covering
sales of shares of Preferred Stock in excess of the number of Firm
Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the
Company, given within a period of 30 days after the date of this
Agreement, setting forth the number of Optional Shares to be
purchased and the date on which such Optional Shares are to be
delivered, as determined by the Representatives, which shall in no
event be earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, earlier
than three or later than ten New York Business Days after the date
of such notice. 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.
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
Representatives 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 Representatives at least
twenty-four hours in advance, by causing American Stock Transfer
and Trust Company, as registrar, to register the Securities in the
name of Cede & Co., or such other nominee as DTC may
designate, and shall cause DTC to credit the Securities to the
account of the Representatives at DTC. The Company will cause the
certificates representing the Securities to be made available to
the Representatives for checking prior to each Time of Delivery at
the office of DTC or its designated custodian (the “
Designated Office ”). The time and date of such
delivery and payment, with respect to the Firm Shares, shall be
10:30 a.m., New York City time, on April 17, 2008 or
such other time and date as the Representatives and the Company may
agree upon in writing, and, with respect to the Optional Shares
shall be 10:30 a.m., New York City time, on the date
specified by the Representatives in the written notice
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given by the Representatives of the
Underwriters’ election to purchase the Optional Shares, or at
such other time and date as the Representatives and the Company may
agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the “ First Time of Delivery
”, such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called an “
Optional Time of Delivery ”, and each such time and
date for delivery is herein called a “ Time of
Delivery ”.
The documents to be delivered
at a Time of Delivery 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 such Time of Delivery. 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 such Time of Delivery, 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.
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 as follows:
(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;
if so requested by the Underwriters, 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
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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-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
Representatives as soon as practicable, but not later than
45 days after
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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) During the period
beginning from the date hereof, and continuing to and including the
date 90 days after the date hereof or such earlier time as the
Representatives may notify the Company, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of any shares of Common Stock, or
any options or warrants to purchase any shares of Common Stock, or
any securities convertible into, exchangeable for or that represent
the right to receive shares of Common Stock (other than
(1) the offer and sale of Securities pursuant to this
Agreement, the issuance of shares of Common Stock upon conversion
of the Securities in accordance with the Amendment and the offer
and sale of Common Stock pursuant to the additio
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