Exhibit 1.3
THE ST. XXXX COMPANIES, INC.
COMMON STOCK
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Underwriting Agreement
[Date]
[UNDERWRITERS]
[As representatives of the several Underwriters
named in Schedule 1 hereto,]
[c/o NAME]
[ADDRESS]
Ladies and Gentlemen:
From time to time The St. Xxxx Companies, Inc., a Minnesota
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain shares of its common stock, without par
value (the "Shares"), specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of Shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Shares"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Designated Shares".
The terms and rights of any particular issuance of Designated
Shares shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time
to time to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the Shares
or as an obligation of any of the Underwriters to purchase the Shares. The
obligation of the Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be evidenced by
the Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of the Firm
Shares, the maximum number of Optional Shares, if any, the initial public
offering price of such Designated Shares, the purchase price to the Underwriters
of such Designated Shares, the names of the Underwriters of such Designated
Shares, the names of the Representatives of such Underwriters and the principal
amount of such Designated Shares to be purchased by each Underwriter and shall
set forth the date, time and manner of delivery of such Designated Shares and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and prospectus with respect thereto) the
terms of such Designated Shares. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. o) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
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the form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to the Initial Registration Statement, but including all
documents incorporated by reference in the prospectus included in the latest
registration statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration Statement or
documents incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of any Initial Registration Statement, any
post-effective amendment thereto, or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
under the Securities Act of 1933, as amended (the "Act"), is hereinafter called
a "Preliminary Prospectus"); the various parts of the Initial Registration
Statement, any post-effective amendment thereto, and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement, at the time such part of the Initial Registration
Statements became effective but excluding Form T-l, each as amended at the time
such part of the Initial Registration Statements became effective or such part
of the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter called the "Registration Statement"; the prospectus
relating to the Shares, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
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pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as amended
or supplemented in relation to the applicable Designated Shares to be sold
pursuant to this Agreement, in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance with Section
5(a) hereof (including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in 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; and 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 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
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reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented to relate to a
particular issuance of Shares;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, 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 do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto 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 of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented to relate to a
particular issuance of Shares;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any direct loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, which is material to the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
or long-term debt of the Company and its subsidiaries taken as a whole (other
than any decrease in the capital stock resulting from purchases under the
Company's Stock Repurchase Program and any increase resulting from the exercise
of stock options or the issuance of restricted shares under the Company's
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stock incentive and employee compensation plans, or the conversion of Series B
Convertible Preferred Stock) or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Minnesota, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, and is not subject to any material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and each of
the Company's principal subsidiaries (hereinafter called "Principal
Subsidiaries"), namely St. Xxxx Fire and Marine Insurance Company, United States
Fidelity and Guaranty Company and The Xxxx Nuveen Company, has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; all of the issued shares of capital stock of each of St. Xxxx
Fire and Marine Insurance Company, United States Fidelity and Guaranty Company
and The Xxxx Nuveen Company held directly or indirectly by the Company have been
duly authorized and validly issued, are fully paid and non-assessable and
(except as disclosed in the Registration Statement) all shares of the capital
stock of such subsidiaries are owned directly or indirectly by the
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Company, free and clear of all liens, encumbrances, equities or claims;
(g) The Shares have been duly authorized by the Company, and,
when Designated Shares are issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Shares, and, in the case
of any Optional Shares, pursuant to Overallotment Options (as defined in Section
3 hereof) with respect to such Shares, such Designated Shares will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated Shares
(as defined in Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms, and the Designated Shares will
conform, to the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares;
(h) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of the Shares, this Agreement, any Pricing
Agreement and each Overallotment Option and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Restated
Articles of Incorporation, as amended, or the By-laws, as amended, of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or
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with any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, or any Pricing Agreement, any Overallotment
Option except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(i) Neither the Company nor any of its subsidiaries is in
violation of its organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties is or may be bound;
(j) The statements set forth in the Prospectus under the
captions "Description of Our Common Stock", insofar as they purport to
constitute a summary of the terms of the Shares therein described, and, subject
to the limitations set forth therein, under the caption "United States
Taxation", and under the captions "Plan of Distribution" and "Underwriting"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(k) Other than as set forth in the Prospectus, and other than
litigation (none of which is reasonably likely to be material) incidental to the
kinds of business conducted by the Company and its subsidiaries, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party, or of which any property of the Company or any of its
subsidiaries is the subject, which, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate (after giving
effect to any applicable insurance, reinsurance or reserves therefor) have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the best of the Company's knowledge, no
such proceedings
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are threatened or contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving effect to each
offering and sale of the Shares will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Immediately after any sale of Shares by the Company
hereunder or under any Pricing Agreement, the aggregate amount of Shares which
shall have been issued and sold by the Company hereunder or under any Pricing
Agreement and of any debt securities of the Company (other than such Shares)
that shall have been issued and sold pursuant to the registration statement will
not exceed the amount of debt securities registered under the registration
statement; and
(n) (A) KPMG LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and (B) Ernst & Young LLP, who have certified certain
financial statements of former USF&G Corporation and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Shares and authorization by the Representatives of the release of
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented. The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the 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 specified in the Pricing
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Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
the Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives and the Company
otherwise agree in writing, earlier than or later than the respective number of
business days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to be
purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. The Firm Shares and the Optional Shares to be purchased by
each Underwriter pursuant to the Pricing Agreement relating thereto, in
definitive form to the extent practicable, and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf 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 forty-eight
hours in advance; (i) with respect to Firm Shares, all in the manner and at the
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "First Time of Delivery" and
(ii) with respect to the
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Optional Shares, if any, in the manner and at the time and date as the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any
Designated Shares:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives 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 execution and delivery of the Pricing Agreement relating to the
applicable Designated Shares or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of the Pricing Agreement relating to such Shares and prior to the Time of
Delivery for such Shares which shall be disapproved by the Representatives for
such Shares promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Shares, and during such
same period to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
prospectus relating to the Shares, of the suspension of the qualification of
such Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any
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proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any prospectus relating
to the Shares or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(c) To furnish the Representatives with copies of the
Prospectus as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request, and, if the delivery of a prospectus
is required at any time in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
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(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the Company
Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated Shares, as
notified to the Company by the Representatives and (ii) the Time of Delivery for
such Designated Shares, not to offer, sell, contract to sell or otherwise
dispose of any equity securities of the Company which are substantially similar
to such Designated Shares, without the prior written consent of the
Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky and Legal Investment Memoranda, closing documents (including
compilations thereof) and any other documents in connection with the offering,
purchase,
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sale and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Shares; (v) any filing fees incident
to, and the fees and disbursements of counsel for the Underwriters in connection
with, any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (vi) the cost of preparing the
Shares; (vii) the fees and expenses of any Trustee and any agent of any Trustee
and the fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Shares; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Shares under the Pricing Agreement relating to such Designated Shares shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Shares are, at and as of the Time of Delivery for such Designated Shares, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00
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P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
such Designated Shares, with respect to the incorporation of the Company, the
Designated Shares, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Xxxxx X. Xxxxxxxx, Esq., Senior Vice President for the
Company, or other counsel for the Company acceptable to the Representatives,
shall have furnished to the Representatives his written opinion, dated the Time
of Delivery for such Designated Shares, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Minnesota, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized share capital as
set forth in the Prospectus as amended or supplemented and all
of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in which, in
such counsel's
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opinion, the Company is required to be so qualified or if the
Company is not so qualified in any such state or jurisdiction,
the failure to so qualify would not, considering all cases in
the aggregate, involve a material risk to the business,
properties, financial position or results of operation of the
Company and its subsidiaries, taken as a whole;
(iv) Each of the Principal Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
all of the issued shares of capital stock of each of St. Xxxx
Fire and Marine Insurance Company, United States Fidelity and
Guaranty Company and approximately 78% of the issued shares of
the capital stock of The Xxxx Nuveen Company have been duly
authorized and validly issued, are fully paid and
non-assessable, and (except as disclosed in the Registration
Statement) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the
Company or the Principal Subsidiaries, provided that such
counsel shall state that he believes that both the
Representatives and he are justified in relying upon such
opinions and certificates);
(v) To such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject, other
than as set forth in the Prospectus and other than litigation
or proceedings (none of which is reasonably likely to be
material) incident to the kinds of business conducted by the
Company and its subsidiaries, which, if determined adversely
to the Company or any of its subsidiaries, would individually
or in the aggregate (after giving effect to any applicable
insurance, reinsurance
-16-
or reserves therefor) have a material adverse effect on the
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries,
taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Shares have been duly authorized,
executed and delivered by the Company;
(vii) The issue and sale of the Designated Shares
being delivered at such Time of Delivery, the compliance by
the Company with all of the provisions of the Designated
Shares, this Agreement and the Pricing Agreement with respect
to the Designated Shares and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the Restated Articles of Incorporation, as
amended, or By-laws, as amended, of the Company or any statute
or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is
-17-
required for the issue and sale of the Designated Shares being
delivered at such Time of Delivery or the consummation by the
Company of the transactions contemplated by this Agreement or
any applicable Pricing Agreement, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Shares by
the Underwriters;
(ix) Neither the Company nor any of its subsidiaries
is in violation of its organizational documents or in default
in the performance or observance of any obligation,
agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties is or may be bound, except
where any such default does not have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(x) The statements set forth in the Prospectus under
the captions "Description of Our Common Stock", insofar as
they purport to constitute a summary of the terms of the
Shares therein described, and, subject to the limitations set
forth therein, under the caption "United States Taxation", and
under the captions "Plan of Distribution" and "Underwriting"
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and
fair;
(xi) The Company is not and, after giving effect to
each offering and sale of the Shares will not be, an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the
case may be, contained, in the case of the registration
statement which became effective under the Act, an untrue
statement of a material
-18-
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
and
(xiii) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion for the Designated Shares (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the rules and regulations thereunder; such counsel has no
reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to the date of such opinion (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) 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 or that, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to
the date of such opinion (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the date
of such opinion, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the date of
such opinion
-19-
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading; and such counsel does not know of any
amendment to the Registration Statement required to be filed
or any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference
or described as required;
provided that in lieu of the delivery of the opinion set forth
in paragraph (iv) of this Section 7(c) as to The Xxxx Nuveen
Company, such counsel may cause Xxxx X. Berkshire, Vice
President and General Counsel to The Xxxx Nuveen Company, to
deliver an opinion as to such matters, dated the Time of
Delivery for such Designated Shares.
(d) On the date of the Pricing Agreement for such Designated
Shares and at the Time of Delivery for such Designated Shares, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of
Delivery, respectively and, with respect to such letter dated such Time
of Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives;
(e) (i) Neither the Company nor any of its Principal
Subsidiaries shall have sustained since the date
-20-
of the latest audited financial statements included or incorporated by
reference in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Shares any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares there shall not have been any change in the capital
stock or long-term debt of the Company and its subsidiaries taken as a
whole (other than any decrease in the capital stock resulting from
purchases under the Company's Stock Repurchase Program and any increase
in the capital stock resulting from the exercise of stock options or
the issuance of restricted shares under the Company's stock incentive
and employee compensation plans, or the conversion of Series B
Convertible Preferred Stock) or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement
relative to the Designated Shares, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as first amended relating to the Designated Shares;
(f) On or after the date of the Pricing Agreement relating to
the Designated Shares (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or the Company's
financial strength or claims paying ability by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii)
other than as disclosed in the Prospectus as amended or supplemented,
no such organization
-21-
shall have publicly announced or otherwise given notice to the Company
that it has under surveillance, review or watch, with possible negative
implications, its rating of any of the Company's debt securities or the
Company's financial strength or claims paying ability, or of any review
for a possible change therein that does not indicate the direction of
the possible change;
(g) On or after the date of the Pricing Agreement relating to
the Designated Shares there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities or a material disruption in the Commercial banking or
securities settlement or clearance services in the United States; or
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war or the occurrence of any other calamity or crisis or change in
financial, political or economic conditions in the United States or
elsewhere if the effect of any such event specified in this clause (iv)
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Shares;
(h) [The Shares at each Time of Delivery shall have been duly
listed, subject to notice of issuance, on the [New York] Stock
Exchange.]
(i) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Shares a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such
-22-
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any
amendment 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 will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall 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 an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Shares, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Shares
through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Shares; and provided, further,
that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage
or liability of such Underwriter results from the fact such Underwriter
sold Shares to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required
by the Act if the Company has
-23-
previously furnished copies thereof to such Underwriter and the loss,
claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus which was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares, or any amendment 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, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any
-24-
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall 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 satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Shares on the other from the offering of the Designated Shares to which
such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required
-25-
under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Shares on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by such
Underwriters. The relative fault 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 on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
subsection (d) 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 which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which 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
-26-
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Shares in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Shares or Optional Shares which it has agreed to
purchase under the Pricing Agreement relating to such Designated
Shares, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Firm
Shares or Optional Shares, as the case may be, on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Shares, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such
Designated Shares on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Designated Shares,
or the Company notifies the Representatives that it has so arranged for
the purchase of such Designated Shares, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Shares for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the
-27-
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate principal
amount of such Designated Shares which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of the Designated
Shares, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Shares which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Shares and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Designated Shares which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate principal
amount of Designated Shares which remains unpurchased exceeds one-tenth
of the aggregate principal amount of the Designated Shares, as referred
to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Shares of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Designated
Shares shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in
-28-
Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer
or director or controlling person of the Company, and shall survive
delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to
any Underwriter with respect to the Firm Shares or Optional Shares
covered by such Pricing Agreement except as provided in Section 6 and
Section 8 hereof; but, if for any other reason Designated Shares are
not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for
all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery
of such Designated Shares, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated
Shares except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of
the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement; and if to the
Company shall
-29-
be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement:
Attention: Xxxxx X. Xxxxxxxx, Esq., Senior Vice President; provided,
however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives
upon request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any
such Pricing Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of
New York.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof.
-30-
Very truly yours,
THE ST. XXXX COMPANIES, INC.
By:
--------------------------
Name:
Title:
Accepted as of the date hereof:
[UNDERWRITERS]
BY: [REPRESENTATIVE]
By:
-----------------------------
Name:
Title:
On behalf of each of the Underwriters
-31-
ANNEX I
PRICING AGREEMENT
[UNDERWRITERS]
As Representatives of the several
Underwriters named in Schedule I hereto,
[ADDRESS]
[DATE]
Ladies and Gentlemen:
The St. Xxxx Companies, Inc., a Minnesota corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated [ ], 200[ ](the "Underwriting Agreement"), between
the Company on the one hand and [UNDERWRITERS] on the other hand, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Shares specified in Schedule II hereto (the "Designated Shares"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Shares pursuant to Section 12 of the Underwriting Agreement
and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Shares set forth opposite
the name of such Underwriter in Schedule I hereto and, [(b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares, as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price to the Underwriters
set forth in Schedule II hereto that portion of the number of Optional Shares as
to which such election shall have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering overallotments in the
sale of the 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 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice].
-2-
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof [(one for the issuer and each of the
Representatives plus one for each Counsel)], and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
THE ST. XXXX COMPANIES, INC.
By:
--------------------------
Name:
Title:
Accepted as of the date hereof:
[UNDERWRITERS]
BY:
By:
-------------------------------
Name:
Title:
On behalf of each of the Underwriters
-3-
SCHEDULE I
AMOUNT OF
AMOUNT OF OPTIONAL
FIRM SHARES SHARES TO
TO BE BE
UNDERWRITER PURCHASED PURCHASED
----------- ------------- ---------
[UNDERWRITER] ...................................... $ $
[UNDERWRITER] ......................................
[UNDERWRITER] ......................................
Total ............................ ------------- -----------
$ $
============= ===========
SCHEDULE II
TITLE OF DESIGNATED SHARES:
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$[ ] per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$[ ] per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$[ ] per Share in [specify same form of funds as in Specified Funds below]]
FORM OF DESIGNATED SHARES:
[Definitive form, to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal (same day)]
[Describe any blackout provisions with respect to the Designated Shares]
TIME OF DELIVERY:
[ ] a.m.(
New York City time), [ ], 200[ ]
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
-2-
