EXHIBIT (1)
XXXXXXX XXXXX MANDATORILY EXCHANGEABLE INDEMNITY AGREEMENT
among
XXXXXXX XXXXX & CO., INC.,
as Issuer of 6.75% Mandatorily Exchangeable Securities due October 15, 2007,
NUVEEN INVESTMENTS, INC.,
as Issuer of shares of Class A common stock, par value $0.01 per share,
THE ST. XXXX TRAVELERS COMPANIES, INC.,
as Selling Stockholder,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
XXXXXX XXXXXXX & CO. INCORPORATED,
as Underwriters,
and
XXXXXXX XXXXX INTERNATIONAL,
as Forward Counterparty
dated as of April 6, 2005
XXXXXXX XXXXX MANDATORILY EXCHANGEABLE INDEMNITY AGREEMENT
Xxxxxxx Xxxxx Mandatorily Exchangeable Indemnity Agreement (this
"Agreement"), dated as of April 6, 2005, among Xxxxxxx Xxxxx & Co., Inc., a
Delaware corporation (the "Mandatory Issuer"), Nuveen Investments, Inc., a
Delaware corporation ("Nuveen"), The St. Xxxx Travelers Companies, Inc., a
Minnesota corporation ("St. Xxxx Travelers"), Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated (each, an
"Underwriter" and together, the "Underwriters"), and Xxxxxxx Xxxxx
International (the "Forward Counterparty").
WHEREAS, the Mandatory Issuer has entered into an underwriting
agreement (the "ML Securities Underwriting Agreement"), pursuant to which the
Mandatory Issuer has agreed to issue and sell to the Underwriters $275,060,000
aggregate principal amount of 6.75% Mandatorily Exchangeable Securities due
October 15, 2007 (the "Securities"), mandatorily exchangeable for shares of
the Class A common stock, par value $0.01 per share, of Nuveen (the "Nuveen
Class A Shares") or the cash value thereof;
WHEREAS, the Securities are to be issued pursuant to the provisions
of an indenture dated as of April 1, 1983, as amended and restated, between
the Mandatory Issuer and JPMorgan Chase Bank, N.A.;
WHEREAS, the Mandatory Issuer has filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including a
prospectus, relating to the Securities, dated March 25, 2005 (the "Mandatory
Issuer Basic Prospectus"), and has filed with, or transmitted for filing to,
or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Securities Prospectus Supplement")
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, St. Xxxx Travelers has entered on the date hereof into a
prepaid forward sale transaction with the Forward Counterparty, pursuant to
which St. Xxxx Travelers will deliver to the Forward Counterparty 5,824,800
Nuveen Class A Shares (subject to St. Xxxx Travelers' right to cash settle
such transaction) (the "ML Forward Agreement");
WHEREAS, Nuveen has filed with the Commission a registration
statement, including a prospectus, relating to the Nuveen Class A Shares,
dated March 18, 2005 (the "Nuveen Basic Prospectus"), and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a final prospectus supplement (the "Nuveen
Prospectus Supplement") pursuant to Rule 424 under the Securities Act
specifically relating to the Nuveen Class A Shares to be delivered pursuant to
the ML Forward Agreement;
WHEREAS, the Mandatory Issuer and the Underwriters are willing to
carry out the transactions contemplated by the ML Securities Underwriting
Agreement, and the Forward Counterparty is willing to enter into the ML
Forward Agreement, on the condition that Nuveen and St. Xxxx Travelers enter
into, and perform their respective obligations under, this Agreement;
THEREFORE, the parties hereto agree as follows:
1. Definitions. (a) The following terms, as used herein, have the
following meanings:
"1940 Act" has the meaning set forth in Section 2(aa).
"Advisers Act" has the meaning set forth in Section 2(bb).
"Agreement" has the meaning set forth in the preamble of this
Agreement.
"Basic Prospectus" means the Nuveen Basic Prospectus or the Mandatory
Issuer Basic Prospectus, as the case may be.
"Bridge Facility" means the bridge loan facility, dated April 1, 2005
between Nuveen and Citicorp North America, Inc., as administrative agent, and
the other lenders thereto.
"Broker-Dealer Subsidiary" has the meaning set forth in Section
2(cc).
"Closing Date" means the date on which the Mandatory Issuer shall
deliver the Securities and the Underwriters shall pay the purchase price for
the Securities, as set forth in the ML Securities Underwriting Agreement.
"Commission" has the meaning set forth in the recitals of this
Agreement.
"Common Stock Underwriting Agreement" means the Underwriting
Agreement, dated the date hereof, among Nuveen, the Selling Stockholders, and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co.
Incorporated, acting severally on behalf of themselves and the several
underwriters named in Schedule I thereto.
"Environmental Laws" has the meaning set forth in Section 2(z).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Forward Counterparty" has the meaning set forth in the preamble of
this Agreement.
"indemnified party" has the meaning set forth in Section 9(d).
"indemnifying party" has the meaning set forth in Section 9(d).
"Investment Advisory Subsidiaries" has the meaning set forth in
Section 2(bb).
"Mandatory Issuer" has the meaning set forth in the preamble of this
Agreement.
"Mandatory Issuer Basic Prospectus" has the meaning set forth in the
recitals of this Agreement.
"Mandatory Issuer Registration Statement" means the registration
statement of the Mandatory Issuer that contains the Securities Prospectus,
including the exhibits thereto, as amended to the date of this Agreement.
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"Material Adverse Effect" has the meaning set forth in Section 2(d).
"ML Forward Agreement" has the meaning set forth in the recitals of
this Agreement.
"ML Securities Underwriting Agreement" has the meaning set forth in
the recitals of this Agreement.
"MS Forward Agreement" means the prepaid forward sale transaction
entered into between St. Xxxx Travelers and Xxxxxx Xxxxxxx International
Limited, pursuant to which St. Xxxx Travelers will deliver to Xxxxxx Xxxxxxx
International Limited 6,067,500 Nuveen Class A Shares (subject to St. Xxxx
Travelers' right to cash settle such transaction).
"Nuveen" has the meaning set forth in the preamble of this Agreement.
"Nuveen Basic Prospectus" has the meaning set forth in the recitals
to this Agreement.
"Nuveen Class A Shares" has the meaning set forth in the recitals of
this Agreement.
"Nuveen Class B Shares" means shares of Nuveen Class B common stock,
par value $0.01 per share.
"Nuveen Common Stock" means the Nuveen Class A Shares and Nuveen
Class B Shares.
"Nuveen preliminary prospectus" means a preliminary Nuveen Prospectus
Supplement specifically relating to the Nuveen Class A Shares to be delivered
pursuant to the ML Forward Agreement, together with the Nuveen Basic
Prospectus.
"Nuveen Prospectus" means the Nuveen Basic Prospectus together with
the Nuveen Prospectus Supplement.
"Nuveen Prospectus Supplement" has the meaning set forth in the
recitals of this Agreement.
"Nuveen Registration Statement" means the registration statement on
Form S-3 of Nuveen that contains the Nuveen Prospectus, including the exhibits
thereto, as amended to the date of this Agreement.
"Nuveen Repurchase Agreement" means the agreement, dated as of March
29, 2005, between Nuveen and St. Xxxx Travelers pursuant to which St. Xxxx
Travelers will sell to Nuveen $200 million of shares of Nuveen Common Stock on
the Closing Date and $400 million of shares of Nuveen Common Stock on a
forward basis no later than December 23, 2005.
"preliminary prospectus" means any Nuveen preliminary prospectus or
any Securities preliminary prospectus.
"Prospectus" means the Nuveen Prospectus or the Securities
Prospectus.
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"Public Offering Price of the Securities" means the price to the
public set forth in the table on the cover of the Securities Prospectus
Supplement.
"Securities" has the meaning set forth in the recitals of this
Agreement.
"Securities Act" has the meaning set forth in the recitals of this
Agreement.
"Securities preliminary prospectus" means a preliminary Prospectus
Supplement specifically relating to the Securities, together with the
Mandatory Issuer Basic Prospectus.
"Securities Prospectus" means the Mandatory Issuer Basic Prospectus
together with the Securities Prospectus Supplement.
"Securities Prospectus Supplement" has the meaning set forth in the
recitals of this Agreement.
"Selling Stockholders" means St. Xxxx Travelers and St. Xxxx Fire and
Marine Insurance Company, a Minnesota corporation.
"Selling Stockholder Forward Agreements" means the ML Forward
Agreement and the MS Forward Agreement.
"Selling Stockholder Information" means, collectively, all statements
or omissions based upon information relating to the Selling Stockholders
furnished to Nuveen in writing by the Selling Stockholders expressly for use
in the Nuveen Registration Statement or the Nuveen Prospectus or any
amendments or supplements thereto.
"Separation Agreement" means the separation agreement dated as of
April 1, 2005 between Nuveen and St. Xxxx Travelers.
"Significant Subsidiaries" has the meaning set forth in Section 2(d).
"St. Xxxx Travelers" has the meaning set forth in the preamble of
this Agreement.
"UCC" has the meaning set forth in Section 3(f).
"Underwriter" or "Underwriters" has the meaning set forth in the
preamble.
(b) Incorporation by Reference. As used herein:
(i) The terms "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include in each case the documents incorporated by
reference therein.
(ii) The terms "supplement" and "amendment" or "amend" as used
in this Agreement shall include, without limitation, all documents
deemed to be incorporated by reference in the relevant Prospectus
that are filed subsequent to the date of the Basic Prospectus by the
respective registrant with the Commission pursuant to the Exchange
Act.
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(c) All references in this Agreement to sections and subsections are
to sections and subsections in this Agreement unless otherwise specified.
2. Representations and Warranties of Nuveen. Nuveen represents and
warrants to and agrees with the Mandatory Issuer and each of the Underwriters
that:
(a) The Nuveen Registration Statement has been declared effective by
the Commission; no stop order suspending the effectiveness of the Nuveen
Registration Statement has been issued, and no notice has been received from
the Commission by Nuveen that any proceedings for such purpose are pending or,
to the knowledge of Nuveen, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Nuveen Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the Nuveen
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any 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, (iii) the
Nuveen Registration Statement and the Nuveen Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Nuveen Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions based upon (x)
information relating to any Underwriter (or any "Underwriter" as such term is
defined in the Common Stock Underwriting Agreement) furnished to Nuveen in
writing by such Underwriter (or any "Underwriter" as such term is defined in
the Common Stock Underwriting Agreement) expressly for use therein, or (y) the
Selling Stockholder Information.
(c) Nuveen has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Nuveen Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the financial
condition, earnings or results of operations of Nuveen and its subsidiaries,
taken as a whole (a "Material Adverse Effect").
(d) Each Investment Advisory Subsidiary (as defined below) and each
significant subsidiary (as that term is defined under Regulation S-X
promulgated under the Exchange Act) of Nuveen (together with the Investment
Advisory Subsidiaries, each, a "Significant Subsidiary", and collectively, the
"Significant Subsidiaries") has been duly incorporated or formed, is validly
existing in good standing under the laws of the jurisdiction of its
incorporation or formation, has the requisite power and authority to own its
property and to conduct its business as described in the Nuveen Prospectus and
is duly qualified to transact business and is
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in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a Material Adverse Effect; all of the issued shares of capital stock
or interests of each Significant Subsidiary of Nuveen have been duly and
validly authorized and issued, are fully paid and non-assessable, or the
substantive equivalent thereto, and (except for directors' qualifying shares)
are owned directly or indirectly by Nuveen, free and clear of all liens,
encumbrances, equities or claims, except in each case as would not cause a
Material Adverse Effect.
(e) This Agreement has been duly authorized, executed and delivered
by Nuveen.
(f) The Nuveen Repurchase Agreement has been duly authorized,
executed and delivered by Nuveen and is a valid and binding agreement of
Nuveen, enforceable against Nuveen in accordance with its terms except as (A)
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting
creditors' rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability and (C) may be
limited by an implied covenant of good faith and fair dealing;
(g) The Bridge Facility has been duly authorized, executed and
delivered by Nuveen and is a valid and binding agreement of Nuveen,
enforceable against Nuveen in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors'
rights generally, (B) the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;
(h) The Separation Agreement has been duly authorized, executed and
delivered by Nuveen and is a valid and binding agreement of Nuveen,
enforceable against Nuveen in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors'
rights generally, (B) the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;
(i) The authorized capital stock of Nuveen conforms as to legal
matters to the description thereof contained in the Nuveen Prospectus.
(j) The outstanding Nuveen Class B Shares held by the Selling
Stockholders to be converted into Nuveen Class A Shares and sold by the
Selling Stockholders under the Common Stock Underwriting Agreement and the
outstanding Nuveen Class B Shares held by St. Xxxx Travelers to be converted
into Nuveen Class A Shares and sold by St. Xxxx Travelers under the Selling
Stockholder Forward Agreements and the outstanding Nuveen Class B Shares to be
sold by St. Xxxx Travelers under the Nuveen Repurchase Agreement have been
duly authorized and are validly issued, fully paid and non-assessable.
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(k) Except as disclosed in the Nuveen Prospectus, the execution and
delivery by Nuveen of, and the performance by Nuveen of its obligations under,
this Agreement, the Common Stock Underwriting Agreement, the Nuveen Repurchase
Agreement, the Bridge Facility and the Separation Agreement will not
contravene (i) any provision of applicable law, (ii) the certificate of
incorporation or by-laws of Nuveen, (iii) any agreement or other instrument
binding upon Nuveen or any of its subsidiaries that is material to Nuveen and
its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of
any governmental body, agency or court having jurisdiction over Nuveen or any
subsidiary of Nuveen, except in the case of (i), (iii), and (iv) as would not
have a Material Adverse Effect, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required
for the performance by Nuveen of its obligations under this Agreement, the
Common Stock Underwriting Agreement, the Nuveen Repurchase Agreement, the
Bridge Facility and the Separation Agreement, except those which have been
obtained and made and except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Nuveen Class A Shares and except for those which the failure to obtain,
individually or in the aggregate, would not have a Material Adverse Effect.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the financial
condition or in the earnings, business or operations of Nuveen and its
subsidiaries, taken as a whole, from that set forth in the Nuveen Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement).
(m) There are no legal or governmental proceedings pending or, to the
knowledge of Nuveen, threatened to which Nuveen or any of its subsidiaries is
a party or to which any of the properties of Nuveen or any of its subsidiaries
is subject that are required to be described in the Nuveen Registration
Statement or the Nuveen Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Nuveen Registration Statement or the Nuveen Prospectus or to be filed as
exhibits to the Nuveen Registration Statement that are not described or filed
as required.
(n) Each preliminary prospectus filed as part of the Nuveen
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, complied as
to form when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(o) Except as disclosed in the Nuveen Prospectus, there are no
contracts, agreements or understandings between Nuveen and any person granting
such person the right to require Nuveen to file a registration statement under
the Securities Act with respect to any securities of Nuveen or to require
Nuveen to include such securities with the Nuveen Class A Shares registered
pursuant to the Nuveen Registration Statement.
(p) Neither Nuveen nor any of its subsidiaries is in violation of its
certificate of incorporation, by-laws or other constituent documents; neither
Nuveen nor any of its subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any agreement or other instrument binding upon Nuveen or any of its
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subsidiaries, except to the extent any such violation or default would not,
individually or in the aggregate, have a Material Adverse Effect.
(q) Subsequent to the respective dates as of which information is
given in the Nuveen Registration Statement and the Nuveen Prospectus, (i)
Nuveen and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction;
(ii) Nuveen has not purchased any of its outstanding capital stock (other than
open market repurchases pursuant to its open market repurchase program), nor
declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock other than ordinary and customary dividends; and (iii) there
has not been any material change in the capital stock or any increase in
short-term debt or long-term debt of Nuveen and its subsidiaries, except in
each case as described in the Nuveen Prospectus or as contemplated by the
offerings and transactions that are described therein.
(r) Nuveen and its Significant Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of Nuveen
and its subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Nuveen Prospectus or such as
do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by Nuveen and its
subsidiaries; and any real property and buildings held under lease by Nuveen
and its subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by Nuveen and
its subsidiaries, in each case except as described in the Nuveen Prospectus.
(s) Nuveen and its subsidiaries, either directly or through a
subsidiary or subsidiaries, own or possess, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names necessary for the conduct of the business now
operated by them, except where the failure to so own, possess or be able to
acquire on reasonable terms would not, individually or in the aggregate, have
a Material Adverse Effect, and neither Nuveen nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(t) No labor dispute with the employees of Nuveen or any of its
subsidiaries exists or, to the knowledge of Nuveen, is imminent, that would
have a Material Adverse Effect; and Nuveen is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that would have a Material
Adverse Effect.
(u) Nuveen and its subsidiaries possess all material certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither Nuveen nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the aggregate,
if the subject of an unfavorable
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decision, ruling or finding, would have a Material Adverse Effect, except as
described in the Nuveen Prospectus.
(v) Nuveen and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(w) The Nuveen Class A Shares to be sold pursuant to the ML Forward
Agreement have been authorized for listing on the New York Stock Exchange,
subject only to official notice of issuance and have been registered under the
Exchange Act.
(x) Except as described in the Nuveen Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
Nuveen has not sold, issued or distributed any shares of Nuveen Common Stock
during the six-month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulation D or S of, the Securities Act,
other than shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants.
(y) KPMG LLP, whose report is included in the Nuveen Prospectus, has
notified Nuveen that it is an independent registered public accounting firm
with respect to Nuveen and its combined subsidiaries within the meaning of the
Securities Act and the rules and regulations adopted by the Commission
thereunder. The financial statements of Nuveen and its combined subsidiaries
(including the related notes) included in the Nuveen Registration Statement
and the Nuveen Prospectus present fairly in all material respects the
financial condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods indicated and
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated and conform in all material respects with the rules and regulations
adopted by the Commission under the Securities Act.
(z) Nuveen and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, individually or in the aggregate, have a Material Adverse Effect.
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(aa) Nuveen is not, and after giving effect to the offering and sale
of the Nuveen Class A Shares pursuant to the ML Forward Agreement and the
application of the proceeds thereof as described in the Nuveen Prospectus will
not be, required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended (the "1940 Act").
(bb) Except in each case as would not reasonably be expected to have
a Material Adverse Effect: Each of Xxxxxxxxxxx Asset Management Inc., NWQ
Investment Management Company LLC, Symphony Asset Management Inc., Nuveen
Asset Management, Inc., Nuveen Investments Advisers and Nuveen Investments
Institutional Services Group LLC (together, the "Investment Advisory
Subsidiaries") is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act") and none of
the Investment Advisory Subsidiaries is prohibited by any provision of the
Advisers Act or the 1940 Act, or the respective rules and regulations
thereunder, from acting as an investment adviser. The Investment Advisory
Subsidiaries are the only direct or indirect subsidiaries of Nuveen required
to be registered as investment advisers under the Advisers Act. Each of the
Investment Advisory Subsidiaries is duly registered, licensed or qualified as
an investment adviser in each jurisdiction where the conduct of its business
requires such registration and is in compliance with all federal, state and
foreign laws requiring any such registration, licensing or qualification or is
subject to no material liability or disability by reason of the failure to be
so registered, licensed or qualified in any such jurisdiction or to be in such
compliance. None of Nuveen or its other direct or indirect subsidiaries is
required to be registered, licensed or qualified as an investment adviser
under the laws requiring any such registration, licensing or qualification in
any jurisdiction in which it or such other subsidiaries conduct business or is
subject to material liability or disability by reason of the failure to be so
registered, licensed or qualified.
(cc) Nuveen Investments, LLC (the "Broker-Dealer Subsidiary") is duly
registered, licensed or qualified as a broker-dealer under the Exchange Act,
and under the securities laws of each jurisdiction where the conduct of its
business requires such registration and is in compliance with all federal,
state and foreign laws requiring such registration, licensing or qualification
or is subject to no material liability or disability by reason of the failure
to be so registered, licensed or qualified in any such jurisdiction or to be
in such compliance. The Broker-Dealer Subsidiary is a member in good standing
of National Association of Securities Dealers, Inc. and each other self
regulatory organization where the conduct of its business requires such
membership. Neither Nuveen nor any of Nuveen's other direct or indirect
subsidiaries is required to be registered, licensed or qualified as a
broker-dealer under the laws requiring any such registration, licensing or
qualification in any jurisdiction in which it or such other subsidiaries
conduct business or is subject to any material liability or disability by
reason of the failure to be so registered, licensed or qualified except where
the failure to be so registered, licensed or qualified would not have a
Material Adverse Effect.
(dd) Each of the Investment Advisory Subsidiaries and the
Broker-Dealer Subsidiary is, has been and will upon consummation of the
transactions contemplated herein be, in compliance with, and each such entity
has received no notice of any kind of any violation of, (A) all laws,
regulations, ordinances and rules (including those of any non-governmental
self-regulatory agencies) applicable to it or its operations relating to
investment advisory or broker-dealer activities, as the case may be, and (B)
all other laws, regulations, ordinances and rules applicable to it and its
operations, except, in either case, where any failure to comply with any
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such law, regulation, ordinance or rule would not have, individually or in the
aggregate, a Material Adverse Effect.
(ee) Each investment advisory agreement between Nuveen and any
Investment Advisory Subsidiary on the one hand and any advisory client on the
other hand is a legal and valid obligation of Nuveen and, to the knowledge of
Nuveen, the other parties thereto, and neither Nuveen nor any Investment
Advisory Subsidiary is, to the knowledge of Nuveen, in breach or violation of
or in default under any such agreement which breach, violation or default
would individually or in the aggregate have a Material Adverse Effect.
3. Representations and Warranties of St. Xxxx Travelers. St. Xxxx
Travelers represents and warrants to and agrees with the Mandatory Issuer and
each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of St. Xxxx Travelers.
(b) The ML Forward Agreement has been duly authorized, executed and
delivered by St. Xxxx Travelers and is a valid and binding agreement of St.
Xxxx Travelers, enforceable against St. Xxxx Travelers in accordance with its
terms except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general applicability and
(C) may be limited by an implied covenant of good faith and fair dealing;
(c) The Nuveen Repurchase Agreement has been duly authorized,
executed and delivered by St. Xxxx Travelers and is a valid and binding
agreement of St. Xxxx Travelers, enforceable against St. Xxxx Travelers in
accordance with its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally, (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability and (C) may be limited by an implied covenant of good
faith and fair dealing;
(d) The Separation Agreement has been duly authorized, executed and
delivered by St. Xxxx Travelers and is a valid and binding agreement of St.
Xxxx Travelers, enforceable against St. Xxxx Travelers in accordance with its
terms except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general applicability and
(C) may be limited by an implied covenant of good faith and fair dealing;
(e) The execution and delivery by St. Xxxx Travelers of, and the
performance by St. Xxxx Travelers of its obligations under, this Agreement,
the ML Forward Agreement, the Nuveen Repurchase Agreement and the Separation
Agreement will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by-laws of St. Xxxx Travelers, (iii) any
agreement or other instrument binding upon St. Xxxx Travelers that is material
to St. Xxxx Travelers and its subsidiaries taken as a whole, or (iv) any
judgment, order or decree of any
11
governmental body, agency or court having jurisdiction over St. Xxxx
Travelers, except in the case of (i), (iii) and (iv) as would not have a
material adverse effect on St. Xxxx Travelers and its subsidiaries taken as a
whole, and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by St.
Xxxx Travelers of its obligations under this Agreement, the ML Forward
Agreement, the Nuveen Repurchase Agreement and the Separation Agreement,
except those which have been obtained and made, and as may be required by
rules of the National Association of Securities Dealers, Inc., or by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Nuveen Class A Shares, and except for those the failure of
which to obtain would not have a material adverse effect on St. Xxxx Travelers
and its subsidiaries taken as a whole.
(f) St. Xxxx Travelers has (with respect to the Nuveen Class B Shares
owned by St. Xxxx Travelers prior to the conversion of such Nuveen Class B
Shares to Nuveen Class A Shares), and on the Closing Date and on each date of
settlement under the ML Forward Agreement will have (with respect to the
Nuveen Common Stock) valid title to, or a valid "security entitlement" within
the meaning of Section 8-501 of the New York Uniform Commercial Code (the
"UCC") in respect of, the Nuveen Common Stock to be sold by St. Xxxx Travelers
pursuant to such ML Forward Agreement on such settlement date, free and clear
of all security interests, claims, liens, equities or other encumbrances
(other than any such encumbrances arising under the ML Forward Agreement) and
the legal right and power, and all authorization and approval required by law,
to enter into such ML Forward Agreement and to sell, transfer and deliver the
Nuveen Common Stock to be sold by St. Xxxx Travelers pursuant to such ML
Forward Agreement or a security entitlement in respect of such Nuveen Common
Stock.
(g) Upon payment for the Nuveen Class A Shares to be sold by St. Xxxx
Travelers pursuant to the ML Forward Agreement, delivery of such Nuveen Class
A Shares to the Forward Counterparty, registration of such Nuveen Class A
Shares in the name of the Forward Counterparty (assuming that the Forward
Counterparty does not have notice of any adverse claim (within the meaning of
Section 8-105 of the UCC) to such Nuveen Class A Shares), (A) the Forward
Counterparty shall be a "protected purchaser" of such Nuveen Class A Shares
within the meaning of Section 8-303 of the UCC and (B) no action based on any
"adverse claim", within the meaning of Section 8-102 of the UCC, to such
Nuveen Class A Shares may be validly asserted against the Forward
Counterparty; for purposes of this representation, St. Xxxx Travelers may
assume that when such payment, delivery and crediting occur, such Nuveen Class
A Shares will have been registered in the name of the Forward Counterparty on
Nuveen's share registry in accordance with its certificate of incorporation,
bylaws and applicable law.
(h) St. Xxxx Travelers is not prompted by any information concerning
Nuveen or its subsidiaries which is not set forth in the Nuveen Prospectus or
otherwise has been publicly disclosed by St. Xxxx Travelers to sell Nuveen
Class A Shares pursuant to the Selling Stockholder Forward Agreements.
(i) (i) The Nuveen Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not
contain any 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, and (ii) the Nuveen Prospectus does not contain and, as
12
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, provided that the representations and warranties set
forth in this paragraph 3(i) are limited to the Selling Stockholder
Information.
4. "Lock-Up" Agreement of Nuveen and St. Xxxx Travelers. Each of
Nuveen and St. Xxxx Travelers hereby agrees that, without the prior written
consent of the Underwriters, it will not, during the period ending 90 days
after the date of the Nuveen Prospectus, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Nuveen Common
Stock or any securities convertible into or exercisable or exchangeable for
Nuveen Common Stock; or enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Nuveen Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Nuveen Common Stock
or such other securities, in cash or otherwise; or (3) file any registration
statement with the Commission relating to the offering of any shares of Nuveen
Common Stock or any securities convertible into or exercisable or exchangeable
for Nuveen Common Stock.
The restrictions contained in the preceding paragraph shall not apply
to (a) the Nuveen Class A Shares to be sold under the Common Stock
Underwriting Agreement, (b) the sale of Nuveen Class A Shares by St. Xxxx
Travelers in connection with the Selling Stockholder Forward Agreements, (c)
the sale of Nuveen Class A Shares by St. Xxxx Travelers underlying the
Securities and underlying the 5.875% Mandatorily Exchangeable Securities due
October 15, 2008 of Xxxxxx Xxxxxxx, (d) the sale of shares of Nuveen Common
Stock by St. Xxxx Travelers pursuant to the Nuveen Repurchase Agreement, (e)
the issuance by Nuveen of shares of Nuveen Common Stock upon the exercise of
an option or warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing, (f) the grant
by Nuveen of stock options, restricted stock or other awards pursuant to
Nuveen's benefit plans in existence on the date hereof or proposed to be
approved by Nuveen's stockholders at their 2005 annual meeting; provided that
such options, restricted stock or awards do not become exercisable or vest
during such 90-day period, or (g) transactions by St. Xxxx Travelers relating
to shares of Nuveen Common Stock or other securities acquired in open market
transactions after the completion of the offering of the Securities, provided
that for purposes of this clause (g) no filing under Section 16(a) of the
Exchange Act shall be required or shall be voluntarily made in connection with
subsequent sales of Nuveen Common Stock or other securities acquired in such
open market transactions. In addition, St. Xxxx Travelers, agrees that,
without the prior written consent of the Underwriters, it will not, during the
period ending 90 days after the date of the Nuveen Prospectus, make any demand
for, or exercise any right with respect to, the registration of any shares of
Nuveen Common Stock or any security convertible into or exercisable or
exchangeable for Nuveen Common Stock. St. Xxxx Travelers consents to the entry
of stop transfer instructions with Nuveen's transfer agent and registrar
against the transfer of any shares of Nuveen Common Stock held by St. Xxxx
Travelers except in compliance with the foregoing restrictions.
5. Payment of Commission of Underwriters. Concurrent with the payment
by the Forward Counterparty to St. Xxxx Travelers of the purchase price
payable pursuant to the ML
13
Forward Agreement, St. Xxxx Travelers shall pay to the Underwriters, not later
than 10:00 a.m. on the Closing Date, a commission in the amount of $8,251,800
delivered in immediately available funds to account number 000-0-000000, ABA #
000000000 (care of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated);
Reference: ML&Co. Mandatorily Exchangeable Securities due October 15, 2007 for
Nuveen A/C 045-03014.
6. Conditions to the Mandatory Issuer's and the Underwriters'
Obligations. The several obligations of the Mandatory Issuer and the
Underwriters under the ML Securities Underwriting Agreement are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
the ML Securities Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
securities of Nuveen or any of its subsidiaries by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the financial
condition or in the earnings, business or operations of Nuveen and
its subsidiaries, taken as a whole, from that set forth in the
Nuveen Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Underwriters, is material and adverse and that makes
it, in the judgment of the Underwriters, impracticable to market the
Securities on the terms and in the manner contemplated in the
Securities Prospectus.
(b) The Mandatory Issuer, the Underwriters and the Forward
Counterparty shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of Nuveen, to the effect set
forth in Section 6(a)(i) above and to the effect that the representations and
warranties of Nuveen contained in this Agreement are true and correct as of
the Closing Date and that Nuveen has complied in all material respects with
all of the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Mandatory Issuer and the Underwriters shall have received on
the Closing Date a certificate, dated the Closing Date and signed by an
executive officer of St. Xxxx Travelers, to the effect that the
representations and warranties of St. Xxxx Travelers contained in this
Agreement are true and correct as of the Closing Date and that St. Xxxx
Travelers has complied in all material respects with all of the agreements and
satisfied in all material respects all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
14
(d) The Mandatory Issuer, the Underwriters and the Forward
Counterparty shall have received on the Closing Date an opinion of Wachtell,
Lipton, Xxxxx & Xxxx, special counsel for Nuveen, dated the Closing Date, to
the effect that:
(i) the authorized capital stock of Nuveen conforms as to legal
matters to the description under the caption "Capital Stock"
contained in the Nuveen Prospectus;
(ii) the shares of Nuveen Common Stock owned by St. Xxxx
Travelers have been duly authorized and are validly issued, fully
paid and non-assessable;
(iii) this Agreement has been duly authorized, executed and
delivered by Nuveen;
(iv) the Nuveen Repurchase Agreement has been duly authorized,
executed and delivered by Nuveen and is a valid and binding
agreement of Nuveen, enforceable in accordance with its terms except
as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally, (B) the
availability of equitable remedies may be limited by equitable
principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;
(v) the Bridge Facility has been duly authorized, executed and
delivered by Nuveen and is a valid and binding agreement of Nuveen,
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of general
applicability and (C) may be limited by an implied covenant of good
faith and fair dealing;
(vi) the Separation Agreement has been duly authorized,
executed and delivered by Nuveen and is a valid and binding
agreement of Nuveen, enforceable in accordance with its terms except
as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally, (B) the
availability of equitable remedies may be limited by equitable
principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;
(vii) Nuveen is not, and after giving effect to the offering
and sale of the Nuveen Class A Shares and the application of the
proceeds thereof as described in the Nuveen Prospectus will not be,
required to register as an "investment company" as such term is
defined in the 1940 Act; and
(viii) the Nuveen Registration Statement and the Nuveen
Prospectus (except for the financial statements and related notes
and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need not comment) appear on
their face to be responsive as to form in all material respects to
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder.
15
In the course of such counsel's participation in the preparation of
the Nuveen Registration Statement and Nuveen Prospectus and review and
discussion of the contents thereof, although such counsel has not
independently checked or verified, and is not passing upon and assumes no
responsibility for, the accuracy, completeness, or fairness thereof, or
otherwise verified the statements made therein, other than those mentioned in
subclause (i) above, as of the Closing Date no facts have come to the
attention of such counsel that cause such counsel to believe that (i) the
Nuveen Registration Statement or the Nuveen Prospectus included therein
(except for the financial statements and related notes and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need not comment) on the date the Nuveen Registration Statement became
effective and as of the date of this Agreement 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 (ii) the
Nuveen Prospectus (except for the financial statements and related notes and
other financial or statistical data included therein or omitted therefrom, as
to which such counsel need not comment) as of its date or as of the Closing
Date contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely, without independent
verification, as to matters of fact, to the extent they deem appropriate, on
the representations of Nuveen contained herein and on certificates of
responsible officers of Nuveen and public officials. Such opinion will be
limited to the laws of the State of New York, the federal laws of the United
States and the General Corporation Law of the State of Delaware, and such
counsel will express no opinion as to the effect on the matters covered by
such opinion of the laws of any other jurisdiction. Such opinion may also
state that such counsel acted as special counsel to Nuveen in connection with
the offering of the Nuveen Class A Shares contemplated hereby and did not act,
and has not acted, as Nuveen's regular outside counsel.
(e) The Mandatory Issuer, the Underwriters and the Forward
Counterparty shall have received on the Closing Date an opinion of Xxxx X.
Berkshire, Esq., General Counsel to Nuveen, dated the Closing Date, to the
effect that:
(i) Nuveen has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Nuveen Prospectus
and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect;
(ii) each Significant Subsidiary of Nuveen has been duly
incorporated or formed, is validly existing in good standing under
the laws of the jurisdiction of its incorporation or formation, has
the requisite corporate power and authority to own its property and
to conduct its business as described in the Nuveen Prospectus and is
duly qualified to transact such business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such
16
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect;
(iii) the Nuveen Class A Shares to be sold by the Selling
Stockholders have been duly authorized and are validly issued, fully
paid and non-assessable;
(iv) to such counsel's knowledge and other than as set forth in
the Nuveen Prospectus, there are no legal or governmental
proceedings pending or threatened to which Nuveen or any of its
subsidiaries is a party or to which any of the properties of Nuveen
or any of its subsidiaries is subject, which, if determined
adversely to Nuveen or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect;
(v) each of the Investment Advisory Subsidiaries is duly
registered as an investment adviser under the Advisers Act. To the
best of such counsel's knowledge, none of Nuveen or its subsidiaries
other than the Investment Advisory Subsidiaries is required to be
registered, licensed, or qualified as an investment adviser under
the Advisers Act and the rules and regulation of the Commission
promulgated thereunder or under applicable state laws, except where
any failure to be so registered, licensed, or qualified would not
have a Material Adverse Effect. To such counsel's knowledge, each of
the Investment Advisory Subsidiaries is in compliance with the
Advisers Act and applicable state laws, regulations, ordinances and
rules applicable to it or its operations relating to investment
advisory activities except where any failure by any such Investment
Advisory Subsidiary to comply with any such law, regulation,
ordinance or rule would not have a Material Adverse Effect;
(vi) to the knowledge of such counsel, neither Nuveen nor any
Investment Advisory Subsidiary is in breach or violation of or in
default under any investment advisory contract which would
individually or in the aggregate have a Material Adverse Effect;
(vii) the Broker-Dealer Subsidiary is duly registered, licensed
or qualified as a broker-dealer under the Exchange Act and in each
jurisdiction where the conduct of its business requires
registration, licensing or qualification, except to the extent that
the failure to be so registered, licensed or qualified would not
have a Material Adverse Effect. None of Nuveen or its subsidiaries,
other than the Broker-Dealer Subsidiary, is required to be
registered, licensed or qualified as a broker-dealer under the
Exchange Act and the rules and regulations of the Commission
promulgated thereunder or under the laws requiring any such
registration, licensing or qualification in any jurisdiction in
which it conducts business except where any failure to be so
registered, licensed or qualified would not have a Material Adverse
Effect. Each of Nuveen and the Broker-Dealer Subsidiary is in
compliance with all laws, regulations, ordinances and rules
(including those of any self regulatory organizations) as applicable
to it or its operations relating to broker-dealer activities except
where any failure to comply with any such law, regulation, ordinance
or rule would not have, individually or in the aggregate, a Material
Adverse Effect;
17
(viii) except as disclosed in the Nuveen Prospectus, the
execution and delivery by Nuveen of, and the performance by Nuveen
of its obligations under, this Agreement, the Common Stock
Underwriting Agreement, the Nuveen Repurchase Agreement, the Bridge
Facility and the Separation Agreement will not contravene (i) any
provision of applicable law or (ii) the certificate of incorporation
or by-laws of Nuveen or, (iii) to such counsel's knowledge, any
agreement or other instrument binding upon Nuveen or any of its
subsidiaries that is material to Nuveen and its subsidiaries, taken
as a whole, or, (iv) to such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over Nuveen or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any U.S.
federal, Illinois State or State of Delaware governmental body or
agency is required for the performance by Nuveen of its obligations
under this Agreement, the Common Stock Underwriting Agreement, the
Nuveen Repurchase Agreement, the Bridge Facility and the Separation
Agreement except those which have been obtained and made, and as may
be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Nuveen Class A Shares
(it being understood that this opinion is limited to those consents,
approvals, authorizations, orders, and qualifications that, in such
counsel's experience, are normally applicable to transactions of the
type contemplated by this Agreement and the Common Stock
Underwriting Agreement); and
(ix) the Nuveen Registration Statement and the Nuveen
Prospectus (except for the financial statements and related notes
and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need not comment) appear on
their face to be responsive as to form in all material respects to
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder.
In the course of such counsel's participation in the preparation of
the Nuveen Registration Statement and Nuveen Prospectus and review and
discussion of the contents thereof, although such counsel has not
independently checked or verified, and is not passing upon and assumes no
responsibility for, the accuracy, completeness, or fairness thereof, or
otherwise verified the statements made therein (it being understood that such
counsel has prepared and reviewed the disclosures incorporated by reference in
the Prospectus under the captions "Business--Regulatory," and "Legal
Proceedings"), as of the Closing Date no facts have come to the attention of
such counsel that cause such counsel to believe that (i) the Nuveen
Registration Statement or the prospectus included therein (except for the
financial statements and related notes and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need not
comment) on the date the Nuveen Registration Statement became effective and as
of the date of this Agreement 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 (ii) the Nuveen Prospectus
(except for the financial statements and related notes and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need not comment) as of its date or as of the Closing Date contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
18
In rendering such opinion, such counsel may rely, without independent
verification, (x) as to matters of fact, to the extent he deems appropriate,
on certificates of responsible officers of Nuveen and public officials, and
(y) as to matters involving the application of any jurisdiction other than the
State of Illinois, the federal laws of the United States and the General
Corporation Law of the State of Delaware, to the extent he deems appropriate
and specified in such opinion, upon the opinion of other counsel of good
standing whom he reasonably believes to be reliable and who are reasonably
satisfactory to counsel for the Mandatory Issuer, the Underwriters and the
Forward Counterparty.
(f) The Mandatory Issuer, the Underwriters and the Forward
Counterparty shall have received on the Closing Date an opinion of Wachtell,
Lipton, Xxxxx & Xxxx, counsel for St. Xxxx Travelers, dated the Closing Date,
to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of St. Xxxx Travelers;
(ii) the ML Forward Agreement has been duly authorized,
executed and delivered by St. Xxxx Travelers and is a valid and
binding agreement of St. Xxxx Travelers, enforceable in accordance
with its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors'
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability and (C) may
be limited by an implied covenant of good faith and fair dealing;
(iii) the Nuveen Repurchase Agreement has been duly authorized,
executed and delivered by St. Xxxx Travelers and is a valid and
binding agreement of St. Xxxx Travelers, enforceable against St.
Xxxx Travelers in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of general
applicability and (C) may be limited by an implied covenant of good
faith and fair dealing;
(iv) the Separation Agreement has been duly authorized,
executed and delivered by St. Xxxx Travelers and is a valid and
binding agreement of St. Xxxx Travelers, enforceable against St.
Xxxx Travelers in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of general
applicability and (C) may be limited by an implied covenant of good
faith and fair dealing;
(v) the execution and delivery by St. Xxxx Travelers of, and
the performance by St. Xxxx Travelers of its obligations under, this
Agreement, the ML Forward Agreement, the Nuveen Repurchase Agreement
and the Separation Agreement will not contravene any provision of
applicable law, or the certificate of incorporation or
19
by-laws of St. Xxxx Travelers, or, to such counsel's knowledge, any
agreement or other instrument binding upon St. Xxxx Travelers that
is material to St. Xxxx Travelers and its subsidiaries taken as a
whole, or, to such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over St. Xxxx Travelers, and no consent, approval, authorization or
order of, or qualification with, any U.S. federal, New York State or
State of Delaware governmental body or agency is required for the
performance by St. Xxxx Travelers of its obligations under this
Agreement, the Selling Stockholder Forward Agreements, the Nuveen
Repurchase Agreement and the Separation Agreement, except those
which have been obtained and made, and as may be required by the
securities or Blue Sky laws of the various states in connection with
offer and sale of the Nuveen Class A Shares (it being understood
that this opinion is limited to the consents, approvals,
authorizations, orders, and qualifications that, in such counsel's
experience, are normally applicable to transactions of the type
contemplated by this Agreement and the Common Stock Underwriting
Agreement); and
(vi) upon payment for the Nuveen Class A Shares to be sold by
St. Xxxx Travelers pursuant to the ML Forward Agreement, delivery of
such Nuveen Class A Shares to the Forward Counterparty, registration
of such Nuveen Class A Shares in the name of the Forward
Counterparty (assuming that the Forward Counterparty does not have
notice of any adverse claim (within the meaning of Section 8-105 of
the UCC) to such Nuveen Class A Shares), (A) the Forward
Counterparty shall be a "protected purchaser" of such Nuveen Class A
Shares within the meaning of Section 8-303 of the UCC, and (B) no
action based on any "adverse claim", within the meaning of Section
8-102 of the UCC, to such Nuveen Class A Shares may be validly
asserted against the Forward Counterparty; in giving this opinion,
counsel for St. Xxxx Travelers may assume that when such payment,
delivery and crediting occur, such Nuveen Class A Shares will have
been registered in the name of the Forward Counterparty on Nuveen's
share registry in accordance with its certificate of incorporation,
bylaws and applicable law.
In rendering such opinion, such counsel may rely, without independent
verification, (x) as to matters of fact, to the extent they deem appropriate,
upon the representations of each Selling Stockholder contained herein and in
other documents and instruments, provided that the Mandatory Issuer, the
Underwriters and the Forward Counterparty are provided copies of such other
documents and instruments and they are reasonably satisfactory to counsel for
the Mandatory Issuer, the Underwriters and the Forward Counterparty, and (y)
as to legal matters, to the extent they deem appropriate and specified in such
opinion, upon the opinion or opinions of other counsel of good standing whom
they reasonably believe to be reliable and who are reasonably satisfactory to
counsel for the Mandatory Issuer, the Underwriters and the Forward
Counterparty.
(g) The Mandatory Issuer, the Underwriters and the Forward
Counterparty shall have received on the Closing Date an opinion of Xxxxx Xxxx
& Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, covering the
matters referred to in Sections 6(d)(iii) and the penultimate paragraph of
Section 6(d) above, and further to the effect that the statements
20
relating to legal matters or documents included in the Nuveen Prospectus under
the caption "Underwriting" fairly summarize in all material respects such
matters or documents.
With respect to the penultimate paragraph in Section 6(d) above,
Xxxxx Xxxx & Xxxxxxxx may state that their opinions and beliefs are based upon
their participation in the preparation of the Nuveen Registration Statement
and the Nuveen Prospectus and any amendments or supplements thereto (other
than the documents incorporated by reference) and upon review and discussion
of the contents thereof (including documents incorporated by reference), but
are without independent check or verification, except as specified.
The opinions of Wachtell, Lipton, Xxxxx & Xxxx described in Sections
6(d) and 6(e) above (and any opinions of counsel for St. Xxxx Travelers
referred to in the immediately preceding paragraph) and the opinion of Xxxx X.
Berkshire in Section 6(e) above shall be rendered to the Mandatory Issuer and
the Underwriters at the request of Nuveen or St. Xxxx Travelers, as the case
may be, and shall so state therein.
(h) The Mandatory Issuer, the Underwriters and the Forward
Counterparty shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be,
in form and substance satisfactory to the Mandatory Issuer, the Underwriters
and the Forward Counterparty, from KPMG LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Nuveen Registration Statement and the Nuveen Prospectus;
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit A to the Common Stock Underwriting Agreement, between the Underwriters
under the Common Stock Underwriting Agreement and certain officers and
directors of Nuveen relating to sales and certain other dispositions of shares
of Nuveen Common Stock or certain other securities, copies of which shall have
been delivered to the Mandatory Issuer and the Underwriters on or before the
date hereof, shall be in full force and effect on the Closing Date.
(j) The Underwriters shall have received at or prior to 10:00 a.m.,
New York City time, on the Closing Date payment of the commission set forth in
Section 5 hereof.
7. Covenants of Nuveen. Nuveen covenants with the Mandatory Issuer,
the Underwriters and the Forward Counterparty as follows:
(a) Nuveen shall furnish to the Mandatory Issuer and each
Underwriter, without charge, three signed copies of the Nuveen Registration
Statement (including exhibits thereto and documents incorporated by reference)
and furnish to the Mandatory Issuer and each Underwriter in New York City,
without charge, prior to 10:00 a.m. New York City time on the business day
next succeeding the date of this Agreement and during the period mentioned in
Section 7(c) below, as many copies of the Nuveen Prospectus, any documents
incorporated therein by reference and any supplements and amendments thereto
or to the Nuveen Registration Statement as the Mandatory Issuer and the
Underwriters may reasonably request.
21
(b) Before amending or supplementing the Nuveen Registration
Statement or the Nuveen Prospectus, Nuveen shall furnish to the Mandatory
Issuer and the Underwriters a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
the Mandatory Issuer and the Underwriters reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters
the Nuveen Prospectus is required by law to be delivered in connection with
sales of Securities by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement
the Nuveen Prospectus in order to make the statements therein, in the light of
the circumstances when the Nuveen Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Mandatory Issuer and the
Underwriters, it is necessary to amend or supplement the Nuveen Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses the Mandatory Issuer and the Underwriters shall furnish to
Nuveen) to which Securities may have been sold by the Mandatory Issuer and the
Underwriters on behalf and to any other dealers upon request, either
amendments or supplements to the Nuveen Prospectus so that the statements in
the Nuveen Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Nuveen Prospectus is delivered to a purchaser, be
misleading or so that the Nuveen Prospectus, as amended or supplemented, will
comply with law.
(d) To use reasonable efforts to qualify the Nuveen Class A Shares
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Mandatory Issuer and the Underwriters shall reasonably request.
(e) To make generally available to Nuveen's security holders and to
the Mandatory Issuer and the Underwriters as soon as practicable an earning
statement covering the twelve-month period ending June 30, 2006 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in the ML
Securities Underwriting Agreement are consummated or the ML Securities
Underwriting Agreement and this Agreement are terminated, St. Xxxx Travelers
agrees to pay or cause to be paid all expenses incident to the performance of
its and Nuveen's obligations under this Agreement, including: (i) the fees,
disbursements and expenses of Nuveen's counsel, Nuveen's accountants and
counsel for the Selling Stockholders in connection with the registration and
delivery of the Nuveen Class A Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the Nuveen
Registration Statement, any Nuveen preliminary prospectus, the Nuveen
Prospectus and amendments and supplements to any of the foregoing, including
all printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) the cost of printing or producing any Blue Sky memorandum in
connection with the offer and sale of the Nuveen Class A Shares under state
securities laws and all expenses in connection with the qualification of the
Nuveen Class A Shares to be sold under the ML Forward Agreement for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable
22
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky memorandum, (iii) all costs
and expenses incident to listing the Nuveen Class A Shares on the New York
Stock Exchange, (iv) the cost of printing certificates representing the Nuveen
Class A Shares to be sold under the ML Forward Agreement, (v) the costs and
charges of any transfer agent, registrar or depositary, (vi) the costs and
expenses of Nuveen relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Securities,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of Nuveen,
travel and lodging expenses of the representatives (who, for the avoidance of
doubt, shall not include the Underwriters) and officers of Nuveen and any such
consultants, and the cost of any aircraft chartered in connection with the
road show, (vii) the document production charges and expenses associated with
printing this Agreement and (viii) all other costs and expenses incident to
the performance of the obligations of Nuveen and St. Xxxx Travelers hereunder
for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled
"Indemnity" and Section 10 entitled "Contribution", the Mandatory Issuer, the
Forward Counterparty and the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Nuveen Class A Shares by them and any
advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise
affect any agreement that Nuveen and St. Xxxx Travelers may otherwise have for
the allocation of such expenses among themselves.
9. Indemnity. (a) Nuveen agrees to indemnify and hold harmless the
Mandatory Issuer, each Underwriter, each person, if any, who controls the
Mandatory Issuer or any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act and each affiliate of the
Mandatory Issuer or any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim), as incurred, caused by any untrue statement or alleged
untrue statement of a material fact contained in the Nuveen Registration
Statement or any amendment thereof, any Nuveen preliminary prospectus or the
Nuveen Prospectus or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon (i) information relating to any Underwriter, the Mandatory Issuer
or the Forward Counterparty furnished to Nuveen in writing by such
Underwriter, Mandatory Issuer or Forward Counterparty expressly for use
therein, or (ii) the Selling Stockholder Information; provided, however, that
the foregoing indemnity agreement with respect to any Nuveen preliminary
prospectus shall not inure to the benefit of either Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities or Nuveen Class A Shares, or any person controlling such
Underwriter or affiliate of such Underwriter within the meaning of Rule 405 of
the Securities Act, if a copy of the Nuveen Prospectus (as then amended or
supplemented if Nuveen shall have furnished any amendments or supplements
thereto) was not sent or given by or
23
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Securities or Nuveen Class A Shares to such person, and if the Nuveen
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is
the result of noncompliance by Nuveen with Section 7(a) hereof.
(b) St. Xxxx Travelers agrees to indemnify and hold harmless the
Mandatory Issuer, each Underwriter, each person, if any, who controls the
Mandatory Issuer or any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act and each affiliate of the
Mandatory Issuer or any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim), as incurred, caused by any untrue statement or alleged
untrue statement of a material fact contained in the Nuveen Registration
Statement or any amendment thereof, any Nuveen preliminary prospectus or the
Nuveen Prospectus or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to the Selling Stockholder Information; provided, however,
that the foregoing indemnity agreement shall not cover any such losses,
claims, damages or liabilities as are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter, the Mandatory Issuer or Forward Counterparty
furnished to Nuveen in writing by such Underwriter, the Mandatory Issuer or
Forward Counterparty expressly for use therein; and provided further, however,
that the foregoing indemnity agreement with respect to any Nuveen preliminary
prospectus shall not inure to the benefit of either Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities or Nuveen Class A Shares, or any person controlling such
Underwriter or affiliate of such Underwriter within the meaning of Rule 405 of
the Securities Act, if a copy of the Nuveen Prospectus (as then amended or
supplemented if Nuveen shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities or Nuveen Class A Shares to
such person, and if the Nuveen Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by Nuveen with
Section 7(a) hereof. The liability of St. Xxxx Travelers under the indemnity
agreement contained in this paragraph shall be limited to an amount equal to
the aggregate purchase price received or to be received by St. Xxxx Travelers
under the ML Forward Agreement less any commissions paid or payable under this
Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Mandatory Issuer, Nuveen, St. Xxxx Travelers, the
directors of Nuveen, the officers of Nuveen who sign the Nuveen Registration
Statement, and each person, if any, who controls the Mandatory Issuer, Nuveen
or St. Xxxx Travelers within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Nuveen
Registration Statement or any amendment thereof, any Nuveen preliminary
prospectus or the
24
Nuveen Prospectus (as amended or supplemented if Nuveen shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to Nuveen in
writing by such Underwriter expressly for use in the Nuveen Registration
Statement, any Nuveen preliminary prospectus, the Nuveen Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c) hereof, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act or who are affiliates of any Underwriter within the meaning of
Rule 405 under the Securities Act, (ii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Mandatory Issuer, its
directors, and each person, if any, who controls the Mandatory Issuer within
the meaning of either such Section or who are affiliates of the Mandatory
Issuer within the meaning of Rule 405 under the Securities Act, (iii) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for Nuveen, its directors, its officers who sign the Nuveen Registration
Statement and each person, if any, who controls Nuveen within the meaning of
either such Section and (iv) the fees and expenses of more than one separate
firm (in addition to any local counsel) for St. Xxxx Travelers and all
persons, if any, who control St. Xxxx Travelers within the meaning of either
such Section, and that all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the Mandatory Issuer
and such control persons and affiliates of the Mandatory Issuer, such firm
shall be designated in writing by the Mandatory Issuer. In the case of any
such separate firm for the Underwriters and such control persons and
affiliates of any Underwriters, such firm shall be designated in writing by
the Underwriters. In the case of any such separate firm for Nuveen, and such
directors, officers and control persons of Nuveen, such firm shall be
designated in writing by Nuveen. In the case of any such separate firm for St.
Xxxx Travelers and such control persons of St. Xxxx Travelers, such firm shall
be designated in writing by St. Xxxx Travelers. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying
25
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
10. Contribution. (a) To the extent the indemnification provided for
in Section 9 hereof is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the relative
benefits received by Nuveen, St. Xxxx Travelers, the Mandatory Issuer and the
Underwriters, respectively, as set forth in Section 10(b) below, or (ii) if
the allocation provided by clause (a)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (a)(i) above but also the relative fault of
Nuveen, St. Xxxx Travelers, the Mandatory Issuer and the Underwriters,
respectively, in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations.
(b) For purposes of determining the relative benefits of Nuveen, St.
Xxxx Travelers, the Mandatory Issuer and the Underwriters, respectively, the
net proceeds from the offering of the Securities (before deducting expenses)
shall be deemed to have been received by Nuveen and St. Xxxx Travelers, and
the relative benefits of Nuveen and St. Xxxx Travelers on the one hand and the
Underwriters on the other hand, shall be in the same respective proportions as
the net proceeds from the offering of the Securities (before deducting
expenses) deemed received by Nuveen and St. Xxxx Travelers and the total
underwriting discounts and commissions received by the Underwriters (including
pursuant to this Agreement), in each case as set forth in the table on the
cover of the Securities Prospectus Supplement (replacing Nuveen and St. Xxxx
Travelers for the Mandatory Issuer) and including any discounts received by
affiliates of the Underwriters under the Selling Stockholder Forward
Agreements, bear to the aggregate Public Offering Price of the Securities, and
the Mandatory Issuer shall be deemed not to have received any benefits.
(c) The relative fault of Nuveen, St. Xxxx Travelers, the Mandatory
Issuer, the Underwriters and the Forward Counterparty, respectively, 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 Nuveen, St. Xxxx
Travelers, the Mandatory Issuer, the Underwriters or the Forward Counterparty
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Underwriters' respective obligations to contribute pursuant
to this Section 10 are several in proportion to the aggregate principal amount
of Securities they have purchased under the ML Securities Underwriting
Agreement, and not joint.
26
(e) The liability of St. Xxxx Travelers under the contribution
agreement contained in this Section 10 shall be limited to an amount equal to
the aggregate purchase price received or to be received by St. Xxxx Travelers
under the ML Forward Agreement less any commissions paid or payable under this
Agreement; provided that the liability of the Mandatory Issuer, the
Underwriters and the Forward Counterparty, collectively, under the
contribution agreement contained in this Section 10 shall not be increased as
a result of this limitation on the liability of St. Xxxx Travelers.
(f) Nuveen, St. Xxxx Travelers, the Mandatory Issuer and the
Underwriters agree that it would not be just or equitable if contribution
pursuant to this Section 10 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in this Section 10. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10, the Mandatory Issuer and the Underwriters,
collectively, shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that the Mandatory Issuer and the Underwriters, collectively, have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(g) The remedies provided for in Section 9 and this Section 10 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
11. Survival. The indemnity provisions contained in Section 9, the
contribution provisions contained in Section 10, and the representations,
warranties and other statements of Nuveen and St. Xxxx Travelers contained in
this Agreement shall remain operative and in full force and effect regardless
of (a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter, any person controlling any Underwriter or any
affiliate of any Underwriter, the Mandatory Issuer, any person controlling the
Mandatory Issuer or any affiliate of the Mandatory Issuer, the Forward
Counterparty, any person controlling the Forward Counterparty or any affiliate
of the Forward Counterparty, St. Xxxx Travelers or any person controlling St.
Xxxx Travelers, or Nuveen, its officers or directors or any person controlling
Nuveen and (c) acceptance of and payment for any of the Securities.
12. Termination. This Agreement shall terminate, if after the
execution and delivery of this Agreement and prior to the Closing Date the ML
Securities Underwriting Agreement shall have terminated in accordance with the
termination provisions contained therein prior to the Closing Date.
13. Effectiveness. This Agreement shall become effective upon the
effectiveness of the ML Securities Underwriting Agreement.
27
14. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
17. Notices. All communications hereunder shall be in writing and
effective only upon receipt and if to the Mandatory Issuer shall be delivered,
mailed or sent to Xxxxxxx Xxxxx & Co., Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Treasurer's Office; if to the Underwriters shall be
delivered, mailed or sent to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, 4 World Financial Center, New York, New York, 10080, Attention:
Global Origination Counsel, and Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Desk; if to the
Forward Counterparty shall be delivered, mailed or sent to Xxxxxxx Xxxxx &
Co., Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000; if to Nuveen shall be
delivered, mailed or sent to Nuveen Investments, Inc., 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxx X. Berkshire, Esq.; and if to St. Xxxx
Travelers shall be delivered, mailed or sent to The St. Xxxx Travelers
Companies, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, XX 00000, Attention:
Xxxxxxx X. Xxxxxx, III.
28
IN WITNESS WHEREOF, each of the Mandatory Issuer, Nuveen, St. Xxxx
Travelers, each Underwriter and the Forward Counterparty has caused this
Agreement to be duly executed on its behalf as of the date hereof.
XXXXXXX XXXXX & CO., INC.
By: \s\ Xxxx Xxxxxxx
---------------------------------------
Name:
Title:
NUVEEN INVESTMENTS, INC.
By: \s\ Xxxx X. Berkshire
---------------------------------------
Name:
Title:
THE ST. XXXX TRAVELERS COMPANIES, INC.
By: \s\ Xxxxxx X. Xxxx
---------------------------------------
Name:
Title:
29
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: \s\ Xxxxxxx X. XxXxxxxx
---------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By: \s\ Xxxx X. Xxxx
---------------------------------------
Name:
Title:
XXXXXXX XXXXX INTERNATIONAL
By: \s\ Xxxxxxx Xxxxx
---------------------------------------
Name:
Title:
30