Distribution Agreement (2017)Full Document 

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EXECUTION VERSION

WELLS FARGO & COMPANY

Medium-Term Notes, Series P

DISTRIBUTION AGREEMENT

January 30, 2017

To the Agent listed in Exhibit A hereto

and each person that shall have become

an Agent as provided in Section 1(e) hereof

Dear Sirs and Mesdames:

Wells Fargo & Company, a Delaware corporation (the "Company"), confirms its agreement with each of you (individually, an "Agent", and collectively, the "Agents") with respect to the issuance and sale by the Company of its Medium-Term Notes, Series P, described herein (the "Notes"). The Notes are to be issued pursuant to an indenture (the "Indenture") dated as of July 21, 1999, as amended from time to time, between the Company and Citibank, N.A., as trustee (the "Trustee"). As of the date hereof, the Company has authorized the issuance and sale of up to U.S. $25,000,000,000 aggregate principal amount (or its equivalent, based upon the applicable exchange rate at the time of issuance, in such foreign currencies or foreign currency units as the Company shall designate at the time of issuance), of the Notes through the Agents pursuant to the terms of this Agreement. It is understood, however, that the Company may from time to time authorize the issuance of additional Notes and that such additional Notes may be sold pursuant to the terms of this Agreement, all as though the issuance of such Notes were authorized as of the date hereof.

This Agreement provides both for the sale of the Notes by the Company directly to purchasers, in which case the Agents will act as agents of the Company in soliciting Note purchases, and (as may from time to time be agreed to by the Company and any Agent) to any Agent as principal for resale to purchasers.

The Company has filed with the Securities and Exchange Commission (the "SEC") an automatic shelf registration statement on Form S-3 (No. 333-202840), as defined in Rule 405 under the Securities Act of 1933, as amended (the "1933 Act") for the registration of securities, including the Notes, under the 1933 Act, and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration statement, including any amendments thereto, became effective upon filing. Such registration statement, including all exhibits thereto (but excluding the Statement of Eligibility on Form T-1), as amended at the date of this Agreement, and including any information deemed to be a part thereof at the time of effectiveness pursuant to


Rule 430B under the 1933 Act, is hereinafter called the "Registration Statement." The term "Basic Prospectus" shall refer to (i) the prospectus in the form in which it appears in the Registration Statement and (ii) the Medium-Term Notes, Series P, prospectus supplement dated January 30, 2017 and filed with the SEC pursuant to Rule 424(b) under the 1933 Act on the date hereof. The term "Prospectus," with respect to a tranche of Notes, shall refer to the Basic Prospectus, together with the Product Supplement, if any, and the Pricing Supplement (each as defined in Section 3(a) hereof) and each other supplement, if any (other than any Preliminary Prospectus), relating to such tranche of Notes. Any preliminary form of the Prospectus which has been or will be filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus." The term "Free Writing Prospectus" shall mean a free writing prospectus, as defined in Rule 405 under the 1933 Act. The term "Issuer Free Writing Prospectus" shall mean an issuer free writing prospectus, as defined in Rule 433 under the 1933 Act, that (i) is required to be filed with the SEC by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes or the offering that does not reflect the final terms. The term "Applicable Time" in respect of a tranche of Notes shall mean the time at or prior to the confirmation of any sales of such Notes, as agreed between the Company and the Agents to whom or through whom such Notes are being sold (i) in a Terms Agreement (hereinafter defined) or (ii) pursuant to any other agreement of the Company and such Agents. The term "Disclosure Package," as it relates to any tranche of Notes, shall mean (i) the Basic Prospectus as amended and supplemented to the Applicable Time, (ii) any preliminary Pricing Supplement which has been or will be filed with the SEC pursuant to Rule 424(b) under the 1933 Act, (iii) the applicable Product Supplement, if any, filed with the SEC pursuant to Rule 424(b) under the 1933 Act prior to the Applicable Time, and (iv) any Free Writing Prospectus that the Company and an Agent or Agents, as applicable, shall expressly agree in writing to treat as part of such Disclosure Package, in each case relating to such tranche of Notes at the relevant Applicable Time. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Prospectus and the Disclosure Package relating to a tranche of Notes shall be deemed to refer to and include the documents filed by the Company under the Securities Exchange Act of 1934, as amended (the "1934 Act") and incorporated therein as of the date of this Agreement or the issue date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus, or the relevant Applicable Time, as the case may be. Any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the Prospectus relating to a tranche of Notes shall be deemed to refer to and include the filing of any document under the 1934 Act after the date of this Agreement, or the issue date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be, and deemed to be incorporated therein by reference. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").

The Company agrees that, unless it obtains the prior written consent of the applicable Agents, and each Agent, severally and not jointly, agrees with the Company that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed with the SEC or retained by the Company under Rule 433 under the 1933 Act. Any such Free Writing Prospectus consented to by the Agents or the Company is hereinafter referred to as a "Permitted Free Writing Prospectus." The Company agrees that (i) it has treated and will treat, as the case may be, each

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Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.

SECTION 1.

Appointment as Agents.

(a) Appointment of Agents. Subject to the terms and conditions stated herein and subject to the reservation by the Company of the right to (i) cause Additional Agents (as defined below) to become Agents under this Agreement or enter into similar agreements from time to time pursuant to Section 1(e) hereof and (ii) sell Notes directly on its own behalf or through any of its affiliated entities and other agents, the Company hereby appoints the Agents as the agents for the purpose of soliciting purchases of Notes from the Company by others and agrees that, except as otherwise contemplated herein, whenever the Company determines to sell Notes directly to any Agent as principal for resale to others, it will enter into a Terms Agreement relating to such sale in accordance with Section 3(b) hereof. No Notes that the Company has agreed to sell pursuant to this Agreement shall be deemed to have been purchased and paid for or sold by the Company until such Notes shall have been delivered to the purchaser thereof against payment by such purchaser. The Company may accept offers to purchase Notes through an agent other than an Agent; provided, however, that the maximum commission received by any such agent will not exceed 8.00%.

(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon receipt of instructions from the Company, each of the Agents will use its reasonable efforts to solicit purchases of such principal amount of Notes as the Company and such Agent shall agree upon from time to time during the term of this Agreement, it being understood that the Company shall not approve the solicitation of purchases of Notes in excess of the amount which shall be authorized by the Company from time to time. The Agents will have no responsibility for maintaining records with respect to the aggregate principal amount of Notes sold. Each Agent will communicate to the Company, orally or in writing, each offer to purchase Notes, other than those offers rejected by such Agent. Each Agent shall have the right, in its discretion reasonably exercised, to reject any proposed purchase of Notes, in whole or in part, and any such rejection shall not be deemed a breach by such Agent of this Agreement. The Company may accept or reject any proposed purchase of Notes, in whole or in part.

(c) Solicitations as Agent; Purchases as Principal. In soliciting purchases of Notes on behalf of the Company and in performing its other obligations hereunder (other than with respect to any purchase by an Agent as principal pursuant to a Terms Agreement), each Agent shall act solely as agent for the Company and not as principal. Each Agent shall make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by such Agent and accepted by the Company; provided, however, that such Agent shall not have any liability to the Company in the event any such purchase is not consummated for any reason. If the Company shall default on its obligation to deliver Notes to a purchaser whose offer it has accepted, the Company shall pay to such Agent the commission it would have received had such sale been consummated and the Company shall hold such Agent harmless against any other loss, claim or damage arising from or as a result of such default by the Company. Each purchase of Notes solicited by an Agent as agent shall be confirmed by such

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Agent and the Company in writing by facsimile transmission or otherwise at or about, or prior to, the Applicable Time. Such written confirmation shall identify the Disclosure Package applicable to such tranche of Notes. The Agents shall not have any obligation to purchase Notes from the Company as principal, but any Agent may agree from time to time to purchase Notes as principal. Any such purchase of Notes by an Agent as principal shall be made in accordance with Section 3(b) hereof.

(d) Reliance. The Company and the Agents agree that any Notes, the placement of which any Agent arranges, shall be placed by such Agent, and any Notes purchased by such Agent shall be purchased, in reliance on the representations, warranties, covenants and agreements of the Company contained herein and on the terms and conditions and in the manner provided herein.

(e) Additional Agents. The Company may from time to time appoint one or more additional financial institutions experienced in the distribution of securities similar to the Notes (each such additional institution herein referred to as an "Additional Agent") as agent(s) hereunder pursuant to an agreement between the Company and the Additional Agents (an "Agent Accession Agreement"), whereupon each such Additional Agent shall, subject to the terms and conditions of this Agreement and the Agent Accession Agreement, become a party to this Agreement as an Agent, vested with all the authority, rights and powers and subject to all the duties and obligations of an Agent as if originally named as an Agent hereunder.

SECTION 2.

Company Representations and Warranties.

(a) The Company represents and warrants to each Agent as of the date hereof, as of each date on which an Agent solicits offers to purchase Notes at the request of the Company, as of the date of each acceptance by the Company of an offer for the purchase of Notes (whether through such Agent as agent or to such Agent as principal), as of the relevant Applicable Time with respect to the issuance of a tranche of Notes, as of the date of each delivery of Notes (whether through such Agent as agent or to such Agent as principal) (the date of each such delivery to the Agent as agent or Agent as principal, as the case may be, being hereinafter referred to as a "Settlement Date"), and as of any time that the Registration Statement or the Prospectus shall be amended or supplemented or there is filed with the SEC any document incorporated by reference into the Prospectus (each of the times referenced above being referred to herein as a "Representation Date") as follows:

(i) Registration Statement, Prospectus and Disclosure Package. At the time the Registration Statement was filed and became automatically effective, the Registration Statement complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the SEC promulgated thereunder. The Indenture complies in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the SEC promulgated thereunder. The Registration Statement, at the time it became effective, did not, and at each time thereafter at which any amendment to the Registration Statement becomes effective (including through the filing of any document incorporated by reference in the Registration Statement) and as of each Representation Date, will not, contain an untrue statement of a material fact or omit to

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state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Any Preliminary Prospectus, at the time of filing thereof, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. The Basic Prospectus, as of the date hereof does not, and each Prospectus relating to a tranche of Notes as of each Representation Date applicable to such tranche of Notes will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. At the relevant Applicable Time relating to any tranche of Notes, the Disclosure Package for such tranche of Notes will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. The representations and warranties in this subsection shall not apply to (A) that part of the Registration Statement which constitutes the Statement of Eligibility on Form T-1 under the 1939 Act of the Trustee and (B) statements in or omissions from the Registration Statement, the Prospectus or the Disclosure Package made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of any of the Agents expressly for use in connection with the preparation of the Registration Statement, the Prospectus or the Disclosure Package, as the case may be. In addition, the representations and warranties set forth above, when made as of the date hereof, as of any date on which an Agent solicits offers to purchase Notes or on which the Company accepts an offer to purchase Notes shall be deemed not to cover information concerning an offering of a tranche of Notes to the extent such information will be set forth in a Product Supplement or a Pricing Supplement to be filed pursuant to Rule 424(b).

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