3,471,010 SHARES
NUVEEN INVESTMENTS, INC.
CLASS A COMMON STOCK (PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
August 4, 2005
August 4, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The St. Xxxx Travelers Companies, Inc., a Minnesota corporation ("ST. XXXX
TRAVELERS"), and its wholly-owned subsidiary, United States Fidelity and
Guaranty Company, a Minnesota corporation, as the selling stockholders (the
"SELLING STOCKHOLDERS"), propose to sell to Xxxxxx Xxxxxxx & Co. Incorporated
(the "UNDERWRITER") an aggregate of 3,471,010 shares of the Class A common
stock, par value $0.01 per share (the "SHARES") of Nuveen Investments, Inc., a
Delaware corporation (the "COMPANY"), each Selling Stockholder to sell the
amount of Shares set forth opposite such Selling Stockholder's name in Schedule
I hereto.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares 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 "PROSPECTUS SUPPLEMENT") specifically relating to the Shares
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the registration
statement on Form S-3, including the exhibits thereto, as amended to the date of
this Agreement. The Company has also filed an abbreviated registration statement
to register additional shares of common stock pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), and any reference herein
to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement. The term "BASIC PROSPECTUS" means the prospectus
included in the Registration Statement. The term "PROSPECTUS" means the Basic
Prospectus together with the Prospectus Supplement. The term "PRELIMINARY
PROSPECTUS" means a preliminary prospectus supplement specifically relating to
the Shares, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents incorporated by reference therein. The terms "SUPPLEMENT" and
"AMENDMENT" or "AMEND" as used in this Agreement shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to and agrees with the Underwriter that:
(a) The Registration Statement has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no notice has been received from the Commission
by the Company that any proceedings for such purpose are pending or, to the
knowledge of the Company, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the 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 Registration Statement,
when it became effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
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 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 the Underwriter furnished to the Company in writing
by the Underwriter expressly for use therein, or (y) the Selling Stockholder
Information.
(c) The Company 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 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 the Company and its subsidiaries, taken as a whole (a "MATERIAL
ADVERSE EFFECT").
(d) Each Investment Advisory Subsidiary (as defined below) and each
Significant Subsidiary of the Company (as that term is defined under Regulation
S-X promulgated under the Exchange Act) (together with the Investment Advisory
Subsidiaries, 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 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
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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 the Company 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 the Company, free and clear of all liens, encumbrances, equities
or claims, except in each case as would not cause a Material Adverse Effect.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The outstanding shares of Class B common stock held by the Selling
Stockholders to be converted into Class A common stock and sold by the Selling
Stockholders under this Agreement have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) Except as disclosed in the Prospectus, the execution and delivery by
the Company of, and the performance by the Company of its obligations under,
this Agreement will not contravene (i) any provision of applicable law or (ii)
the certificate of incorporation or by-laws of the Company or (iii) any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or (iv) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, 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 the Company of
its obligations under this Agreement, except those which have been obtained or
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 Shares and
except those for which the failure to obtain, individually or in the aggregate,
would not have a Material Adverse Effect.
(i) 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 the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of
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its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(k) Each preliminary prospectus filed as part of the 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.
(l) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company or to require
the Company to include such securities with the Shares registered pursuant to
the Registration Statement.
(m) Neither the Company nor any of its subsidiaries is in violation of its
certificate of incorporation, by-laws or other constituent documents; neither
the Company 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 the Company or any of its
subsidiaries, except to the extent any such default would not, individually or
in the aggregate, have a Material Adverse Effect.
(n) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction; (ii) the Company 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 the Company and its subsidiaries, except in each case as
described in the Prospectus or as contemplated by the offerings and transactions
that are described therein.
(o) The Company 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 the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in the 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 the Company and its
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subsidiaries; and any real property and buildings held under lease by the
Company 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 the
Company and its subsidiaries, in each case except as described in the
Prospectus.
(p) The Company 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 the Company 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.
(q) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent, that would
have a Material Adverse Effect; and the Company 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.
(r) The Company 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 the Company 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 Prospectus.
(s) The Company and each of its subsidiaries maintains 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.
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(t) The Shares 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.
(u) Except as described in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), the Company has
not sold, issued or distributed any shares of 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.
(v) KPMG LLP, whose report is included in the Prospectus, has notified us
that it is an independent registered public accounting firm with respect to the
Company 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 the Company and its combined subsidiaries (including the
related notes) incorporated in the Registration Statement and the Prospectus
present fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the
dates and for the periods indicated and have been prepared in accordance with
United States generally accepted accounting principles applied on a consistent
basis throughout the periods indicated and conform in all material respects with
the rules and regulations adopted by the Commission under the Securities Act.
(w) The Company 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.
(x) The Company is not, and after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
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").
(y) Except in each case as would not reasonably be expected to have a
Material Adverse Effect: Each of Xxxxxxxxxxx Asset Management Inc., NWQ
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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 the Company 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 the
Company or its other direct or indirect subsidiaries is required to be
registered, licensed or qualified as an investment adviser under the laws
requiring any such registration, licensing or qualification in any jurisdiction
in which it or such other subsidiaries conduct business or is subject to
material liability or disability by reason of the failure to be so registered,
licensed or qualified.
(z) 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 NASD
and each other self regulatory organization where the conduct of its business
requires such membership. Neither the Company nor any of the Company'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.
(aa) 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
7
comply with any such law, regulation, ordinance or rule would not have,
individually or in the aggregate, a Material Adverse Effect.
(bb) Each investment advisory agreement between the Company and any
Investment Advisory Subsidiary on the one hand and any advisory client or
private client on the other is a legal and valid obligation of the Company and,
to the knowledge of the Company, the other parties thereto, and neither the
Company nor any Investment Advisory Subsidiary is, to the knowledge of the
Company, 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.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder, to the extent applicable, represents and warrants to and agrees
with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, this
Agreement, will not contravene (i) any provision of applicable law or (ii) the
certificate of incorporation or by-laws of such Selling Stockholder or (iii) any
agreement or other instrument binding upon such Selling Stockholder that is
material to such Selling Stockholder and its subsidiaries taken as a whole, or
(iv) any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, except in the case of (i),
(iii) and (iv) as would not have a material adverse effect on such Selling
Stockholder 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 such Selling Stockholder of its
obligations under this Agreement, except those which have been obtained or 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 Shares, and except for those the
failure of which to obtain would not have a material adverse effect on such
Selling Stockholder and its subsidiaries taken as a whole.
(c) Such Selling Stockholder has (with respect to the Class B common stock
owned by such Selling Stockholder prior to the conversion of such Class B common
stock to Class A common stock), and on the Closing Date will have (with respect
to the Shares), 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 Shares to be sold by such Selling Stockholder free and clear of
all security interests, claims, liens, equities or other encumbrances and the
legal right and power, and all authorization and approval required by law, to
enter into this Agreement and to sell, transfer and deliver the Shares to be
sold by such Selling Stockholder or a security entitlement in respect of such
Shares.
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(d) Upon payment for the Shares to be sold by such Selling Stockholder
pursuant to this Agreement, delivery of such Shares, as directed by the
Underwriter, to Cede & Co. ("CEDE") or such other nominee as may be designated
by the Depository Trust Company ("DTC"), registration of such Shares in the name
of Cede or such other nominee and the crediting of such Shares on the books of
DTC to securities accounts of the Underwriter (assuming that neither DTC nor the
Underwriter has notice of any adverse claim (within the meaning of Section 8-105
of the UCC to such Shares), (A) DTC shall be a "protected purchaser" of such
Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501
of the UCC, the Underwriter will acquire a valid security entitlement in respect
of such Shares and (C) no action based on any "adverse claim", within the
meaning of Section 8-102 of the UCC, to such Shares may be validly asserted
against the Underwriter with respect to such security entitlement; for purposes
of this representation, such Selling Stockholder may assume that when such
payment, delivery and crediting occur, (x) such Shares will have been registered
in the name of Cede or another nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of incorporation,
bylaws and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC and (z) appropriate
entries to the accounts of the Underwriter on the records of DTC will have been
made pursuant to the UCC.
(e) Such Selling Stockholder is not prompted by any information concerning
the Company or its subsidiaries which is not set forth in the Prospectus or
otherwise has been publicly disclosed by such Selling Stockholder to sell its
Shares pursuant to this Agreement.
(f) The 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 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, PROVIDED that the
representations and warranties set forth in this paragraph 2(j) are limited to
statements or omissions based upon information relating to such Selling
Stockholder furnished to the Company in writing by such Selling Stockholder
expressly for use in the Registration Statement, the Prospectus or any
amendments or supplements thereto (such information collectively, the "SELLING
STOCKHOLDER INFORMATION").
3. AGREEMENTS TO SELL AND PURCHASE. The Selling Stockholders hereby agree
to sell to the Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Selling Stockholders at $38.03 a
share (the "PURCHASE PRICE") the Shares.
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The Company hereby agrees that, without the prior written consent of the
Underwriter, it will not, during the period ending 90 days after the date of the
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 Common Stock or any securities convertible into or
exercisable or exchangeable for 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 Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of 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 Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to
(a) the Shares to be sold hereunder, (b) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriter has been
advised in writing, or (c) the grant by the Company of stock options, restricted
stock or other awards pursuant to the Company's benefit plans in existence on
the date hereof or proposed to be approved by the Company'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.
4. TERMS OF PUBLIC OFFERING. The Company and the Selling Stockholders are
advised by you that the Underwriter proposes to make a public offering of the
Shares as soon after this Agreement has been executed as in your judgment is
advisable. The Company and the Selling Stockholders are further advised by you
that the Shares are to be offered to the public initially at $38.15 a share (the
"PUBLIC OFFERING PRICE").
5. PAYMENT AND DELIVERY. Payment for the Shares to be sold by each Selling
Stockholder shall be made to such Selling Stockholder in Federal or other funds
immediately available in New York City against delivery of such Shares for the
account of the Underwriter at 10:00 a.m., New York City time, on August 10,
2005, or at such other time on the same or such other date, not later than
August 17, 2005, as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "CLOSING DATE."
The Shares shall be registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date. The Shares shall be delivered to you on the Closing Date, with any
transfer taxes payable in connection with the transfer of the Shares to you duly
paid, against payment of the Purchase Price therefor.
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6. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this 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 the
Company 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 the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above, to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied in all material respects with all of the agreements
and satisfied in all material respects all of the conditions on its part to
be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriter 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 the Selling
Stockholders contained in this Agreement are true and correct as of the Closing
Date and that the Selling Stockholders have complied in all material respects
with all of the agreements and satisfied in all material respects all of the
conditions on their part to be performed or satisfied hereunder on or before the
Closing Date.
(d) The Underwriter shall have received on the Closing Date an opinion of
Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Company, dated the
Closing Date, to the effect that:
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(i) the authorized capital stock of the Company conforms as to legal
matters to the description under the caption "Capital Stock" contained in
the Prospectus;
(ii) the shares of Common Stock owned by the Selling Stockholders have
been duly authorized and are validly issued, fully paid and non-assessable;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the 1940 Act; and
(v) the Registration Statement and the 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
Registration Statement and 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 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 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 Prospectus (except for
the financial statements and related notes and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need not
comment) as of its date or as of the Closing Date contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, without independent
verification, as to matters of fact, to the extent they deem appropriate, on the
representations of the Company contained herein and on certificates of
responsible officers of the Company and public officials. Such opinion will be
12
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 the Company in connection with the
offering of the Shares contemplated hereby and did not act, and has not acted,
as the Company's regular outside counsel.
(e) The Underwriter shall have received on the Closing Date an opinion of
Xxxx X. Berkshire, Esq., General Counsel to the Company, dated the Closing Date,
to the effect that:
(i) the Company 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 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 the Company 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 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 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
Prospectus, there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject, which, if determined adversely to the Company 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 Advisors Act. To such counsel's knowledge,
none of the Company 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
13
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 the Company 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 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 the Company 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 the Company
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 Prospectus, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or, to such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company 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 the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
U.S. federal, State of Illinois or State of Delaware governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, except those which
14
have been obtained or 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 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);
(ix) the Registration Statement and the 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; and
In the course of such counsel's participation in the preparation of the
Registration Statement and 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" in the Company's Annual Report
on Form 10-K for the year ended December 31, 2004 and under the caption "Legal
Proceedings" in the Company's Quarterly Report on Form 10-Q for the three-month
period ended March 31, 2005), as of the Closing Date no facts have come to the
attention of such counsel that cause such counsel to believe that (i) the
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 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 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 the Company 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
15
believes to be reliable and who are reasonably satisfactory to counsel for the
Underwriter.
(f) The Underwriter shall have received on the Closing Date an opinion of
Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Selling Stockholders, dated the
Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by
or on behalf of each of the Selling Stockholders;
(ii) the execution and delivery by the applicable Selling Stockholder
of, and the performance by such Selling Stockholder of its obligations
under, this Agreement will not contravene any provision of applicable law,
or the certificate of incorporation or by-laws of such Selling Stockholder,
or, to such counsel's knowledge, any agreement or other instrument binding
upon such Selling Stockholder that is material to such Selling Stockholder
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 such Selling Stockholder, 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 such Selling Stockholder of its obligations under this
Agreement, except those which have been obtained or made, and as may be
required by NASD or by the securities or Blue Sky laws of the various
states in connection with offer and sale of the 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
(iii) upon payment for the Shares to be sold by the Selling
Stockholders pursuant to this Agreement, delivery of such Shares, as
directed by the Underwriter, to Cede or such other nominee as may be
designated by DTC, registration of such Shares in the name of Cede or such
other nominee and the crediting of such Shares on the books of DTC to
securities accounts of the Underwriter (assuming that neither DTC nor the
Underwriter has notice of any adverse claim within the meaning of Section
8-105 of the UCC to such Shares), (A) DTC shall be a "protected purchaser"
of such Shares within the meaning of Section 8-303 of the UCC, (B) under
Section 8-501 of the UCC, the Underwriter will acquire a valid security
entitlement in respect of such Shares and (C) no action based on any
"adverse claim" (within the meaning of Section 8-102 of the UCC) to such
Shares may be validly asserted against the Underwriter with respect to such
security entitlement; in giving this opinion, counsel for the Selling
Stockholders may assume that when such payment, delivery and crediting
occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the
16
Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC and
(z) appropriate entries to the accounts of the Underwriter on the records
of DTC will have been made pursuant to the UCC.
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 you are provided copies of such
other documents and instruments and they are reasonably satisfactory to your
counsel, 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 Underwriter.
(g) The Underwriter shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriter, dated the Closing Date,
covering the matters referred to in Section 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 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 Registration Statement and 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(f) above (and any opinions of counsel for the Selling Stockholders
referred to in the immediately preceding paragraph) and the opinion of Xxxx X.
Berkshire in Section 6(e) above shall be rendered to the Underwriter at the
request of the Company or the Selling Stockholders, as the case may be, and
shall so state therein.
(h) The Underwriter 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 Underwriter, from KPMG LLP,
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus;
17
PROVIDED that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
7. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriter herein contained, the Company covenants with the Underwriter as
follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto and documents incorporated by
reference) and to furnish to you 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 Prospectus, any documents incorporated therein by reference and
any supplements and amendments thereto or to the Registration Statement as you
may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
you 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 Shares as in the opinion of counsel for the Underwriter the Prospectus is
required by law to be delivered in connection with sales by the Underwriter or
any dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the Underwriter,
it is necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriter and to the dealers (whose names and addresses you
will furnish to the Company) to which Shares may have been sold by you on behalf
of the Underwriter and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with law.
(d) To use reasonable efforts to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders and to
you as soon as practicable an earning statement covering the twelve-month
18
period ending September 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 this Agreement
are consummated or this Agreement is terminated, St. Xxxx Travelers agrees to
pay or cause to be paid all expenses incident to the performance of the Selling
Stockholders' and the Company's obligations under this Agreement, including: (i)
the fees, disbursements and expenses of the Company's counsel, the Company's
accountants and counsel for the Selling Stockholders in connection with the
registration and delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the 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
Underwriter and dealers, in the quantities hereinabove specified, (ii) all costs
and expenses related to the transfer and delivery of the Shares to the
Underwriter, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares 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 Underwriter in
connection with such qualification and in connection with the Blue Sky
memorandum, (iv) all costs and expenses incident to listing the Shares on the
New York Stock Exchange, (v) the cost of printing certificates representing the
Shares, (vi) the costs and charges of any transfer agent, registrar or
depositary, (vii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, 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 the Company, travel and lodging expenses of the
representatives (who, for the avoidance of doubt, shall not include the
Underwriter) and officers of the Company and any such consultants, and the cost
of any aircraft chartered in connection with the road show, (viii) the document
production charges and expenses associated with printing this Agreement and (ix)
all other costs and expenses incident to the performance of the obligations of
the Company and the Selling Stockholders 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 Contribution" and
the last paragraph of Section 11 below, the Underwriter will pay all of its
costs and expenses, including fees and disbursements of its counsel, stock
transfer taxes payable on resale of any of the Shares by it and any advertising
expenses connected with any offers it may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Company and the Selling Stockholders may otherwise have for
the allocation of such expenses among themselves.
19
9. INDEMNITY AND CONTRIBUTION. The Company agrees to indemnify and hold
harmless the Underwriter, each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and each affiliate of the 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) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the 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 the
Underwriter furnished to the Company in writing by the Underwriter expressly for
use therein, or (ii) the Selling Stockholder Information; PROVIDED, HOWEVER,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriter, or any person
controlling the Underwriter or any affiliate of the Underwriter within the
meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriter to
the person asserting any such losses, claims, damages or liabilities who
purchased Shares from the Underwriter, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Shares to
such person, and if the 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 the Company with Section
7(a) hereof.
(b) Each Selling Stockholder agrees to indemnify and hold harmless the
Underwriter, each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act and each affiliate of the 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) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the 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 the Underwriter furnished to the Company in writing by
20
the Underwriter expressly for use therein; and PROVIDED FURTHER, HOWEVER, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of the Underwriter, or any person controlling the
Underwriter or any affiliate of the Underwriter within the meaning of Rule 405
of the Securities Act, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to the person
asserting any such losses, claims, damages or liabilities who purchased Shares
from the Underwriter, if required by law so to have been delivered, at or prior
to the written confirmation of the sale of the Shares to such person, and if the
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 the Company with Section 7(a) hereof. The liability
of each Selling Stockholder under the indemnity agreement contained in this
paragraph shall be limited to an amount equal to the net proceeds received by
such Selling Stockholder from the Underwriter in respect of the Shares sold by
such Selling Stockholder under this Agreement.
(c) The Underwriter agrees to indemnify and hold harmless the Company, the
Selling Stockholders, the directors of the Company, the officers of the Company
who sign the Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder 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 Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company 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 the Underwriter furnished to the Company in writing by the
Underwriter expressly for use in the Registration Statement, any preliminary
prospectus, the 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), 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
21
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 the Underwriter and all persons, if any, who
control the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of the
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 Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Selling Stockholders and all
persons, if any, who control the Selling Stockholders 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 Underwriter and
such control persons and affiliates of the Underwriter, such firm shall be
designated in writing by the Underwriter. In the case of any such separate firm
for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Stockholders and such control persons of
the Selling Stockholders, such firm shall be designated in writing by the
Selling Stockholders. 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.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or
9(c) 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 the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by
applicable law, in such proportion as is
22
appropriate to reflect not only the relative benefits referred to in clause
9(e)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriter on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Selling Stockholders and the total
underwriting discounts and commissions received by the Underwriter, in each case
as set forth in the table on the cover of the Prospectus Supplement, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Company
or the Selling Stockholders on the one hand and the Underwriter on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The liability of each Selling Stockholder under the
contribution agreement contained in this paragraph shall be limited to an amount
equal to the net proceeds received by such Selling Stockholder from the
Underwriter in respect of the Shares sold by such Selling Stockholder under this
Agreement.
(f) The Company, the Selling Stockholders and the Underwriter agree that it
would not be just or equitable if contribution pursuant to this Section 9 were
determined by PRO RATA allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in Section 9(e).
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 9, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that the Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 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.
(g) The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the
23
Company and the Selling Stockholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Underwriter, any
person controlling the Underwriter or any affiliate of the Underwriter, either
Selling Stockholder or any person controlling such Selling Stockholder, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
10. TERMINATION. The Underwriter may terminate this Agreement by notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on, or by, as the case may be, either the New York Stock
Exchange or the Nasdaq National Market (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New York
State authorities or there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets, or any calamity or crisis that,
in your judgment, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus.
11. EFFECTIVENESS. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of any the Company or the Selling Stockholders to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or the Selling Stockholders shall be unable to
perform its obligations under this Agreement, the Company or the Selling
Stockholders, as the case may be, will reimburse the Underwriter for all
out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
12. 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.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. 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.
24
15. NOTICES. All communications hereunder shall be in writing and effective
only upon receipt and if to the Underwriter shall be delivered, mailed or sent
to you in care of Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Global Capital Markets; if to the Company 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 the Selling
Stockholders 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.
[SIGNATURES FOLLOW]
Very truly yours,
NUVEEN INVESTMENTS, INC.
By: /s/ Xxxx X. Berkshire
--------------------------
Name: Xxxx X. Berkshire, Esq.
Title: Senior Vice President and
General Counsel
THE ST. XXXX TRAVELERS
COMPANIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
UNITED STATES FIDELITY AND
GUARANTY COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
SCHEDULE I
NUMBER OF SHARES TO
SELLING STOCKHOLDER BE SOLD
----------------------------------------------- -------------------
The St. Xxxx Travelers Companies, Inc. 3,389,500
United States Fidelity and Guaranty Company 81,510
---------
Total:.............................. 3,471,010
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