EXHIBIT 1.1
▇▇▇▇▇ FARGO & COMPANY
$1,500,000,000
6 5/8% NOTES DUE JULY 15, 2004
UNDERWRITING AGREEMENT
July 21, 1999
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇ Fargo & Company, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture
identified in Schedule I hereto (the "Indenture"), with Citibank, N.A. as
trustee (the "Trustee"). 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.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has 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 Securities.
The Company proposes 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 Securities in 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 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
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,
and the Indenture 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
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the 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 Company 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.
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2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees 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 I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the 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 between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the 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 Company will
deliver against payment of the purchase price the Securities in the form of one
or more permanent global securities in definitive form deposited with the
Trustee 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 Securities will be
held only in book-entry form through DTC, the Euroclear System and Cedelbank,
except in the limited circumstances described in the Final Prospectus.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company 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 Company will not file any
amendment of the Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company 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 Company 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 Company 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 Securities 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 Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the
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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 Company will use
promptly its best efforts to obtain its withdrawal.
(b) 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 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 Company will promptly
notify you and will, upon your request, 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 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 Company will make generally available
to its security holders an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act.
(d) The Company 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 Company will pay the expenses of printing or other
production of all documents relating to the offering, any fees charged by
investment rating agencies for the rating of the Securities and the
expenses incurred in distributing the Final Prospectus to the Underwriters.
(e) The Company will arrange for the qualification of the 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 Securities; provided, however, that the
Company 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.
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(f) Until the business day following the Closing Date or such earlier
time as you may notify the Company, the Company will not, without the
consent of the Representatives, offer or sell, or announce the offering of,
any debt securities that are substantially similar to the Securities (other
than commercial paper) and are covered by the Registration Statement or any
other registration statement filed under the Act.
(g) The Company agrees that it will, as requested by Credit Suisse
First Boston (Europe) Limited, as London listing agent for the Securities,
cooperate with the delivery of the Listing Particulars to the Registrar of
Companies in England and Wales; and will comply with Section 147 of the
Financial Services ▇▇▇ ▇▇▇▇ (the "FSA") (if applicable) and the listing
rules in that regard and will supply to each Underwriter such number of
copies of supplementary listing particulars as such Underwriter may
reasonably request. As used herein, "Listing Particulars" means any
listing particulars (including supplementary listing particulars) approved
under the listing rules made by the London Stock Exchange under Section 142
of the FSA in accordance with the provisions of Section 144 of the FSA
(including any supplementary listing particulars published in accordance
with this Agreement or otherwise). The Company agrees to use all
commercially reasonable efforts to obtain and maintain the listing of the
Securities on the London Stock Exchange until such time as none of the
Securities is outstanding or until such time as payment of principal,
interest and any other amount due thereon has been duly provided for,
whichever is earlier. If the Securities cease to be listed on the London
Stock Exchange, the Company agrees to use all commercially reasonable
efforts promptly to list the Securities on a stock exchange agreed upon by
the Company and the Representatives. The Company will use all commercially
reasonable efforts to comply with the rules of the London Stock Exchange
and will otherwise comply with any undertakings given by it from time to
time to the London Stock Exchange in connection with the 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 London Stock
Exchange all such information as it may require in connection with the
listing thereon of the Securities. In addition, for so long as the
Securities are listed on a stock exchange and such exchange so requires,
the Company will maintain in London, or in such other place as the
Securities are listed (if the Securities are no longer listed on the London
Stock Exchange), a paying agent in respect of the Securities, as required.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the 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 Securities, for any applicable filing fee incident to,
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and the reasonable fees and disbursements of counsel for the Underwriters
in connection with, the review by the London Stock Exchange of the
Securities, for any travel expenses of the Company's officers and employees
and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of Securities and for expenses
incurred in distributing the Preliminary Final Prospectus or Final
Prospectus.
(i) The Company will cooperate with the Representatives and use all
commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company, the
Euroclear System and Cedelbank, as applicable.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company 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 Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its 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 Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and General Counsel
of the Company, dated the Closing Date, to the effect that:
(i) the Company 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 bank holding company under the Bank Holding
Company Act of 1956, as amended; each of Norwest Bank Minnesota, N.A.
("Norwest Bank") and ▇▇▇▇▇ Fargo Bank, N.A. ("▇▇▇▇▇ Fargo Bank") is a
national banking association duly chartered and is in good standing
under the National Bank Act of 1864, as amended; and WFC Holdings
Corporation ("WFC Holdings" and together with Norwest Bank and ▇▇▇▇▇
Fargo Bank, the Significant Subsidiaries") is a duly organized and
validly existing corporation under the laws of the State of Delaware;
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(ii) each of the Company 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 Company 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)
nonassessable, and are owned by the Company 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 Company's authorized equity capitalization is as set
forth in 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 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 Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or the Indenture will conflict
with, result in a breach of, or constitute a default under, any
indenture or other agreement or instrument to which the Company or any
Significant Subsidiary is a party or bound constituting a material
contract and set forth as an exhibit to the Company's most recent
Annual Report on Form 10-K or any subsequent Quarterly Report on Form
10-Q or Current Report on Form 8-K, or any other indenture, agreement
or instrument known to such counsel and to which the Company or any
Significant Subsidiary is a party or bound, or any order or regulation
known to such counsel to be applicable to the Company or any
Significant Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any Significant Subsidiary; nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company;
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(vii) the statements in the Final Prospectus (other than
statements furnished in writing to the Company by or on behalf of an
Underwriter through the Representatives) under the captions
"Description of Debt Securities", "▇▇▇▇▇ Fargo & Company-Regulation
and Supervision", "Plan of Distribution", "Description of Notes", and
"Underwriting" insofar as they purport to summarize certain provisions
of documents or laws specifically referred to therein, are accurate
summaries of such provisions or laws;
(viii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, as amended, and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid
and legally binding instrument enforceable against the Company 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 Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, will constitute valid and legally binding
obligations of the Company 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 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 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 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 as to which such
8
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 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;
(x) this Agreement has been duly authorized, executed and
delivered by the Company; and
(xi) no consent, approval, authorization or order of any court or
government agency or body is required for the consummation of the
transactions contemplated herein, 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 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 Company and its subsidiaries
and public officials.
(c) The Representatives shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Securities, the Indenture, the Registration Statement, the
Final Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by any Senior Vice President or
Executive Vice President and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in Section
2 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 Company 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;
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(ii) 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) 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 Company and its 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.
(e) 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.
(f) 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 Company and its 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 Securities on the terms and in the manner contemplated by the
Final Prospectus, as so amended or supplemented.
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 in reasonably satisfactory in form and substance to
the Representatives and their counsel, this Agreement and all obligations
of the Underwriters hereunder may be cancelled at, or at any time prior to,
the Closing Date by the Representatives. Notice of such cancellation shall
be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the 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 Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including 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 Securities.
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7. Indemnification and Contribution.
(a) The Company agrees 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
Securities 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 Company will not be liable in any 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 Company 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 Securities
concerned, to the extent that the Final Prospectus relating to such
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 Company 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 Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter
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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 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 Company 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
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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 Company, on the one hand, and each
Underwriter, on the other hand, from the offering of such 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 Company, 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 Company,
on the one hand, and each Underwriter, on the other hand, in connection
with the offering of such Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company bear to the
total discounts and commissions received by each Underwriter in respect
thereof. The relative fault of the Company, 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 Company 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 principal amount of the Securities the sale of which by
such Underwriter gave rise to such losses, claims, damages or liabilities
bears to the aggregate principal amount of the Securities the sale of which
by all Underwriters gave rise to such losses, claims, damages or
liabilities, and not joint.
(e) The Company 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
13
shall be required to contribute any amount in excess of the amount by which
the total price at which the 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 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 amount of Securities set forth opposite their names in Schedule II hereto
bear to the aggregate amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of such Securities; provided further, that if the remaining
Underwriters do not exercise their right to purchase such Securities and
arrangements for the purchase of such Securities satisfactory to the Company and
the Representatives are not made within 36 hours after such default, then this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. 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
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Underwriter Representations and Agreements. Each Underwriter
represents and agrees that (a) it and each of its affiliates has not offered or
sold and will not offer or sell any Securities to persons in the United Kingdom
prior to admission of the Securities to listing in accordance with Part IV of
the FSA, except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their business or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 or the FSA; (b) it
and each of its affiliates has complied and will comply with all applicable
provisions of the FSA with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and (c) it and
each of its affiliates has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Securities to a person who is of a kind described in Article 11(3)
of the FSA (Investment Advertisements) (Exemptions) Order 1996 (as amended) or
is a person to whom such document may otherwise lawfully be issued or passed on.
In the event that the offer or sale of the Securities by an Underwriter in a
14
jurisdiction requires any action on the part of the Company in or with respect
to such jurisdiction, such Underwriter represents and agrees that it will (i)
inform the Company that the Company is required to take such action prior to the
time such action is required to be taken, and (ii) cooperate with and assist the
Company 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 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 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.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the 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
Company 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 Company 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 Company 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, in the judgment of the Representatives,
impracticable to proceed with completion of the public offering of, or sale of
and payment for, the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its 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 or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the 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 Company, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇: 0195-171, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇.
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
15
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.
16
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
Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇ FARGO & COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
17
SCHEDULE I
Underwriting Agreement dated July 21, 1999 (the "Agreement")
Registration Statement Nos. 333-79493, 33-61045 and 33-50435
Indenture: Indenture, dated as of July 21, 1999, between the Company and
Citibank, N.A.
Representatives, including addresses:
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title, Purchase Price and Description of Securities:
Title: 6 5/8% Notes due July 15, 2004
Principal Amount: $1,500,000,000
Interest Rate: 6 5/8%
Interest Payment Dates: January 15 and July 15 of each year, commencing
January 15, 2000
Maturity: July 15, 2004
Denominations: Beneficial interests in the Securities will be held in
denominations of $1,000 and integral multiples thereof
Price to Public: 99.945% plus accrued interest, if any, from July 28, 1999
Purchase price (include type of funds, if other than Federal Funds, and
accrued interest or amortization if applicable): 99.595%, plus accrued
interest, if any, from July 28, 1999, payable in immediately available
funds
Sinking fund provisions: None
Redemption provisions: None
Provisions regarding repayment at the option of Holders: None
I-1
Closing Date, Time and Location: July 28, 1999, 9:00 a.m., New York City time,
at the offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Information Supplied by Underwriters: For purposes of Sections 7(a) and 7(b) of
the Agreement, the only information furnished to the Company by any Underwriter
for use in any Preliminary Final Prospectus or the Final Prospectus consists of:
(i) the concession and discount figures contained in the third paragraph under
the caption "Underwriting" therein, (ii) the sixth paragraph under the caption
"Underwriting" therein and (iii) the ninth paragraph under the caption
"Underwriting" therein.
I-2
SCHEDULE II
Underwriter Principal Amount
----------- ----------------
Credit Suisse First Boston Corporation.................................. $ 525,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................................ 525,000,000
Banc One Capital Markets, Inc........................................... 60,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................................. 60,000,000
Chase Securities Inc.................................................... 60,000,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co..................................................... 60,000,000
▇▇▇▇▇▇ Brothers Inc..................................................... 60,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated....................................... 60,000,000
ABN AMRO Incorporated................................................... 15,000,000
Barclays Bank PLC....................................................... 15,000,000
BNY Capital Markets, Inc................................................ 15,000,000
First Union Capital Markets Corp........................................ 15,000,000
Midland Bank plc........................................................ 15,000,000
Mellon Financial Markets, Inc........................................... 15,000,000
--------------
Total.............................................................. $1,500,000,000
==============
II-1
[Exhibit A Intentionally Omitted]