Exhibit 1
XXXXXX XXXXXXX MANDATORILY EXCHANGEABLE INDEMNITY AGREEMENT
among
XXXXXX XXXXXXX,
as Issuer of 5.875% Mandatorily Exchangeable Securities due October 15, 2008,
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,
XXXXXX XXXXXXX & CO. INCORPORATED
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
as Underwriters,
and
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED,
as Forward Counterparty
dated as of April 6, 2005
XXXXXX XXXXXXX MANDATORILY EXCHANGEABLE INDEMNITY AGREEMENT
Xxxxxx Xxxxxxx Mandatorily Exchangeable Indemnity Agreement (this
"Agreement"), dated as of April 6, 2005, among Xxxxxx Xxxxxxx, 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"), Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (each, an "Underwriter" and
together, the "Underwriters"), and Xxxxxx Xxxxxxx & Co. International Limited
(the "Forward Counterparty").
WHEREAS, the Mandatory Issuer has entered into an underwriting
agreement (the "MS 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 5.875% Mandatorily Exchangeable Securities due
October 15, 2008 (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 November 1, 2004, 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 November 10, 2004 (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 6,067,500
Nuveen Class A Shares (subject to St. Xxxx Travelers' right to cash settle such
transaction) (the "MS 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 MS Forward Agreement;
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WHEREAS, the Mandatory Issuer and the Underwriters are willing to carry
out the transactions contemplated by the MS Securities Underwriting Agreement,
and the Forward Counterparty is willing to enter into the MS 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 MS 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).
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"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.
"Material Adverse Effect" has the meaning set forth in Section 2(d).
"ML Forward Agreement" means the prepaid forward sale transaction
entered into between St. Xxxx Travelers and Xxxxxxx Xxxxx International,
pursuant to which St. Xxxx Travelers will deliver to Xxxxxxx Xxxxx International
5,824,800 Nuveen Class A Shares (subject to St. Xxxx Travelers' right to cash
settle such transaction).
"MS Forward Agreement" has the meaning set forth in the recitals of
this Agreement.
"MS Securities Underwriting Agreement" has the meaning set forth in the
recitals of this Agreement.
"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 MS Forward Agreement, together with the Nuveen Basic Prospectus.
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"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.
"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
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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.
(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
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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 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.
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(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.
(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
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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
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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 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.
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(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 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 MS 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
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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.
(aa) Nuveen is not, and after giving effect to the offering and sale of
the Nuveen Class A Shares pursuant to the MS 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
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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 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.
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(b) The MS 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
MS 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 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
MS 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
14
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 MS 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 MS 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 MS Forward Agreement) and the legal
right and power, and all authorization and approval required by law, to enter
into such MS Forward Agreement and to sell, transfer and deliver the Nuveen
Common Stock to be sold by St. Xxxx Travelers pursuant to such MS 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 MS 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) 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 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
15
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 6.75% Mandatorily Exchangeable Securities due October 15, 2007 of
Xxxxxxx Xxxxx & Co., Inc., (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
16
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 MS 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
00000000, ABA # 000000000 (care of Xxxxxx Xxxxxxx & Co. Incorporated);
Reference: Syndicate Operations, Account#: 000-00000-0.
6. Conditions to the Mandatory Issuer's and the Underwriters'
Obligations. The several obligations of the Mandatory Issuer and Underwriters
under the MS Securities Underwriting Agreement are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and the
MS 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
17
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.
(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
18
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.
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
19
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 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
20
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;
(viii) except as disclosed in the Nuveen Prospectus, the
execution and delivery by Nuveen of, and the performance by Nuveen of
its
21
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
22
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, (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 MS 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;
23
(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 MS Forward Agreement, the Nuveen Repurchase Agreement
and the Separation Agreement will not contravene any provision of
applicable law, or the certificate of incorporation or 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 MS 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
24
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 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'
25
"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.
(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
26
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 MS
Securities Underwriting Agreement are consummated or the MS 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 MS Forward Agreement for offer and sale under state securities
laws as provided in Section 7(d) hereof, including filing fees and the
reasonable 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 MS Forward Agreement, (v) the costs
27
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. 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
28
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.
(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)
29
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 MS
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 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
30
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 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. 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 (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above
31
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 MS Securities Underwriting Agreement,
and not joint.
(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 MS 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
32
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 MS 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 MS Securities Underwriting Agreement.
32
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 Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasury; 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 Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 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.
34
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.
XXXXXX XXXXXXX
By: /s/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
NUVEEN INVESTMENTS, INC.
By: /s/ Xxxx X. Berkshire
--------------------------------
Name: Xxxx X. Berkshire
Title: Sr. Vice President
THE ST. XXXX TRAVELERS
COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive VP
35
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By: /s/ Xx, Xxx-Xxxxx Xxxxxxxx
--------------------------------
Name: Xx, Xxx-Xxxxx Xxxxxxxx
Title: Managing Director
36