Exhibit 1.5
THE ST. XXXX COMPANIES, INC.
ST. XXXX CAPITAL TRUST II
____% [PREFERRED SECURITIES]
($__ STATED LIQUIDATION AMOUNT)
------------
Underwriting Agreement
[Date]
[UNDERWRITERS]
[As representatives of the several Underwriters
named in Schedule 1 hereto,]
[c/o NAME]
[ADDRESS]
Ladies and Gentlemen:
The St. Xxxx Companies, Inc. (the "Company"), a Minnesota
corporation, and St. Xxxx Capital Trust II (the "Trust"), a statutory business
trust created under the Business Trust Act of the State of Delaware (the
"Delaware Business Trust Act") propose that the Trust issue and sell to the
firms named in Schedule I hereto (such firms constituting the "Underwriters")
its [ ]% Trust Preferred Securities (the "Firm Securities"), representing
undivided preferred beneficial interests in the assets of the Trust, which will
be guaranteed by the Company (the "Guarantee") as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
that the Trust has funds on hand legally available therefor, as set forth in a
Preferred Securities Guarantee Agreement (the "Guarantee Agreement") between the
Company and JPMorgan Chase Bank, as trustee (the "Guarantee Trustee"). In
addition, subject to the terms and conditions herein, the Company and the Trust
propose to grant the Underwriters an option to purchase up to [ ] additional
[ ]% Trust Preferred Securities (the "Optional Securities"). The Firm Securities
and the Optional Securities are herein called the "Securities".
The proceeds of the sale of the Securities and the common
securities of the Trust (the "Common Trust Securities" and, together with the
Securities, the "Trust Securities") to be sold by the Trust to the Company are
to be invested in [ ]% Junior Subordinated Debentures due [ ], 200[ ](the
"Debentures") of the Company to be issued pursuant to an Indenture (the
"Indenture") between the Company and JPMorgan Chase Bank, as trustee (the
"Trustee"). The Trust Securities will be issued pursuant to, and governed by the
Amended and Restated Declaration of Trust, dated as of [ ], 200[ ] (the
"Declaration") among the Company, Chase Manhattan Bank USA, National
Association, as the Delaware Trustee (the "Delaware Trustee"), JPMorgan Chase
Bank, as the institutional trustee, and the administrative trustees named
therein. The Declaration, the Indenture and the Guarantee Agreement will be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
1. The Company and the Trust, jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3, as amended (File No.
[o]), the "Initial Registration Statement") in respect of the Securities, the
Debentures and the Guarantee has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated by reference in
the prospectus included in the latest registration statement, to the
Representatives for each of the other Underwriters, have been declared effective
by the Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became effective upon filing, no other document with respect to
the Initial Registration Statement or documents incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission
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under the Act, each in the form heretofore delivered to the Representatives);
and no stop order suspending the effectiveness of any Initial Registration
Statement, any post-effective amendment thereto, or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus included
in the Initial Registration Statements or filed with the Commission pursuant to
Rule 424(a) under the Securities Act of 1933, as amended (the "Act"), is
hereinafter called a "Preliminary Prospectus"); the various parts of the Initial
Registration Statements, any post-effective amendment thereto, and the Rule
462(b) Registration Statements, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the Initial
Registration Statement, at the time such part of the Initial Registration
Statements became effective but excluding Form T-l, each as amended at the time
such part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter called the "Registration Statement"; the prospectus
relating to the Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Initial Registration Statements shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or
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supplemented in relation to the applicable Securities to be sold pursuant to
this Agreement, in the form filed or transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act and in accordance with Section 5(a) hereof
(including any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to the Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
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fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to the Securities;
(d) Neither the Trust, the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any direct loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, which is material to the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
or long-term debt of the Trust or the Company and its subsidiaries taken as a
whole (other than any decrease in the capital stock resulting from purchases by
the Company under its Stock Repurchase Program and any increase resulting from
the exercise of stock options or the issuance of restricted shares under the
Company's stock incentive and employee compensation plans, or the conversion of
Series B Convertible Preferred Stock) or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Trust or the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented;
(e) The Trust has been duly formed and is validly existing as a
statutory business trust in good standing under the Delaware Business Trust Act
with the power and authority (trust and other) to enter into this Agreement, to
own property and to conduct its business as described in the Prospectus, and has
conducted and will conduct no business other than the transactions contemplated
by this Agreement and the Declaration and as
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described in the Prospectus, as amended or supplemented; the Trust is not a
party to or bound by any agreement or instrument other than this Agreement, the
Declaration, and the agreements and instruments contemplated by the Declaration
and described in the Prospectus as amended or supplemented; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described in the
Prospectus as amended or supplemented; based on expected operations and current
law, the Trust is not and will not be classified as an association taxable as a
corporation for United States federal income tax purposes; the Trust is not a
party to or subject to any action, suit or proceeding of any nature;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, and is not
subject to any material liability or disability by reason of the failure to be
so qualified in any such jurisdiction; and each of the Company's principal
subsidiaries (hereinafter called "Principal Subsidiaries"), namely St. Xxxx Fire
and Marine Insurance Company, United States Fidelity and Guaranty Company and
The Xxxx Nuveen Company, has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to require
such qualification;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable;
all of the issued shares of capital stock of each of St. Xxxx Fire and Marine
Insurance Company, United States Fidelity and Guaranty Company and The Xxxx
Nuveen
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Company held directly or indirectly by the Company have been duly authorized and
validly issued, are fully paid and non-assessable; (except as disclosed in the
Registration Statement) all shares of the capital stock of such subsidiaries are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the outstanding beneficial
interests in the assets of the Trust have been duly authorized and issued, are
fully-paid and non-assessable and conform to the description thereof contained
in the Prospectus;
(h) The Securities have been duly and validly authorized by the Trust,
and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the Securities
is not subject to preemptive or other similar rights; the Securities will have
the rights set forth in the Declaration; the holders of the Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware;
(i) The Common Trust Securities have been duly and validly authorized
by the Company and upon delivery at each Time of Delivery (as defined herein) by
the Trust to the Company against payment therefor as described in the
Prospectus, will be duly and validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will conform to
the description thereof contained in the Prospectus; the issuance of the Common
Trust Securities is not subject to preemptive or other similar rights; at each
Time of Delivery, all of the issued and outstanding Common Trust Securities of
the Trust will be directly owned by the Company free and clear of all liens,
encumbrances, security interests, equities or claims; the Common Trust
Securities will have the rights set forth in the Declaration; and the Trust
Securities are the only interests authorized to be issued by the Trust;
(j) The Debentures have been duly authorized by the Company, and, when
the Debentures are issued and delivered pursuant to this Agreement, they will be
duly
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executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized and, when validly executed
and delivered by the Company and the Trustee, and when duly qualified under the
Trust Indenture Act, at the Time of Delivery for the Firm Securities (as defined
in Section 3 hereof), will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; the
Guarantee Agreement and the Declaration have each been duly authorized and each,
when validly executed and delivered by the Company and (i) in the case of the
Guarantee Agreement, by the Guarantee Trustee and (ii) in the case of the
Declaration, by the Institutional Trustee and the Delaware Trustee, will
constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture, the
Guarantee Agreement and the Declaration conform, and the Debentures will
conform, to the descriptions thereof contained in the Prospectus as amended or
supplemented;
(k) The issue and sale of the Debentures underlying the Trust
Securities by the Company, the compliance by the Company with all of the
provisions of this Agreement, the Guarantee Agreement, the Declaration and the
Indenture, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Restated Articles of Incorporation, as
amended, or the By-laws, as amended, of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the
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Company or any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Debentures underlying the Trust Securities by the Company, or the
consummation by the Company of the transactions contemplated by this Agreement,
the Indenture, the Guarantee Agreement and the Declaration, except such as have
been, or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(l) The issue and sale of the Securities by the Trust, the purchase of
the Debentures underlying the Trust Securities by the Trust, the compliance by
the Trust with all of the provisions of this Agreement and the Declaration, and
the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Trust is a
party or by which the Trust is bound or to which any of the property or assets
of the Trust is subject, nor will such action result in any violation of the
provisions of the Declaration or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Trust or
any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Trust Securities by the Trust,
the purchase of the Debentures underlying such Trust Securities by the Trust or
the consummation by the Trust of the transactions contemplated by this Agreement
and the Declaration, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
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(m) The Trust is not in violation of the Declaration, and as of each
Time of Delivery, will not be in violation of the Declaration; neither the
Company nor any of its subsidiaries is in violation of its organizational
documents; and neither the Trust nor the Company or any of its subsidiaries is
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties is or may be bound;
(n) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of the Preferred Securities that
the Trust May Offer" and "Description of the Trust Guarantee", insofar as they
purport to constitute a summary of the terms of the securities therein
described, and, subject to the limitations set forth therein, under the caption
"Certain Federal Income Tax Consequences", and under the caption "Underwriting"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(o) Other than as set forth in the Prospectus as amended or
supplemented, and other than litigation (none of which is reasonably likely to
be material) incidental to the kinds of business conducted by the Company and
its subsidiaries, there are no legal or governmental proceedings pending to
which the Trust, the Company or any of its subsidiaries is a party, or of which
any property of the Trust, the Company or any of its subsidiaries is the
subject, which, if determined adversely to the Trust, the Company or any of its
subsidiaries, would individually or in the aggregate (after giving effect to any
applicable insurance, reinsurance or reserves therefor) have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Trust or the Company and its
subsidiaries, taken as a whole; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) Neither the Company nor the Trust is and, after giving effect to
the sale of the Securities
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hereunder, neither the Company nor the Trust will be, an "investment company" or
an entity "controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act");
(q) Immediately after any sale of Securities by the Trust hereunder,
the aggregate amount of Securities which shall have been issued and sold by the
Trust hereunder that shall have been issued and sold pursuant to the
Registration Statement will not exceed the aggregate stated liquidation amount
of trust securities registered under the Registration Statement; and
(r) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Company
and the Trust agree that the Trust will sell to each of the Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Trust, at a purchase price of $[ ] per Firm Security, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule 1 hereto,
and (b) in the event and to the extent that the Underwriters shall exercise
their election to purchase Optional Securities as provided in the paragraph
below, the Company and the Trust agree that the Trust will sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust at the purchase price set forth in clause (a) of this
paragraph, a number of Optional Securities (to be adjusted by you to eliminate
fractional Securities) determined by multiplying such number of Optional
Securities by a fraction, the numerator of which is the maximum number of
Optional Securities set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the maximum number of Optional
Securities set forth in total opposite the names of all such Underwriters in
Schedule I hereto.
The Company and the Trust, as and to the extent indicated in Schedule I
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to [ ] Optional Securities, at the
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purchase price per Security set forth in clause (a) of the paragraph above, for
the sole purpose of covering overallotments in the sale of Firm Securities. Any
such election to purchase Optional Securities may be exercised only by written
notice from the Representatives to the Company and the Trust, given within a
period of 15 calendar days after the date of this Agreement and setting forth
the aggregate number of Optional Securities to be purchased and the date on
which such Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by the Representatives of the release of the Firm
Securities, the several Underwriters propose to offer such Firm Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. The Securities to be purchased by each Underwriter hereunder shall be
delivered by or on behalf of the Trust to the Representatives, on behalf of the
Underwriters, through the facilities of The Depository Trust Company ("DTC") or
its designated custodian for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefore by wire
transfer of Federal (same-day) funds to the account specified by the Trust. The
Trust will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (defined below) with respect thereto at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery shall be, for the Firm Shares, [ ], 200[ ], at 9:30 a.m. New York
City time or such other time that the Representatives and the Company may agree
upon in writing, and with respect to the Optional Shares, at 9:30 a.m. New York
City time, on the date specified by the Representatives in the written notice
given by the Representatives of the Underwriters' election to purchase such
purchase such Optional Securities, or such other time and date as the
Representatives, the Company and the Trust may agree upon in writing. Such time
and date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for the delivery of the
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Optional Shares, if not the First Time of Delivery, is herein called the "Second
Time of Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
At each Time of Delivery, the Trust or the Company will pay, or cause
to be paid, the commission payable at such Time of Delivery to the Underwriters
under Section 2 hereof by wire transfer of Federal (same-day) funds to the
account specified by the Representatives.
5. The Company and the Trust, jointly and severally, agree with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3); to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the last Time of
Delivery for such Securities which shall be disapproved by the Representatives
for such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or
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Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions within the
United States as the Representatives may request and to continue such
qualifications in effect for so long as required to complete the distribution of
such Securities, provided that in connection therewith neither the Company nor
the Trust shall be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Representatives with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later
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than eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section 11(a) of the
Act and the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158);
(e) If the Company and the Trust elect to rely upon Rule 462(b), the
Company and the Trust shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act;
(f) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(g) To use their best efforts to list, subject to notice of issuance,
the Securities on the New York Stock Exchange (the "Exchange"); and
(h) Not to invest, reinvest or otherwise use the proceeds received by
the Trust and the Company in such a manner, or take any action, or omit to take
any action, that would cause the Company or the Trust to become an "investment
company" as that term is defined in the Investment Company Act.
6. The Company and the Trust, jointly and severally, covenant and agree
with the several Underwriters that the Company or the Trust will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Securities
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers in the United
States; (ii) the cost of printing or producing any
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Agreement among Underwriters, this Agreement, the Indenture, any Blue Sky and
Legal Investment Memoranda, closing documents (including compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) all fees and
expenses in connection with listing any of the Securities on the Exchange and
the cost of registering the Securities under the Act (vii) the cost of preparing
the Securities and the Debentures; (viii) the fees and expenses of each of the
Institutional Trustee, the Delaware Trustee, the Guarantee Trustees, and the
trustee under the Indenture and any agent of any such trustee and the fees and
disbursements of counsel for any such trustee in connection with the Indenture
and the Securities; (ix) the cost and charges of any transfer agent or
registrar; (x) the cost and charges of DTC; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder as to the Securities to be
delivered at each Time of Delivery shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company and the Trust herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Trust
shall have performed all of its and their obligations hereunder theretofore to
be performed, and the following additional conditions:
-16-
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company and the Trust have elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx shall have furnished to the Representatives
such written opinion or opinions, dated the Time of Delivery for the Securities,
with respect to the incorporation of the Company, the validity of the Debentures
and the Guarantee, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters; provided that in respect of certain
matters of Minnesota law, such counsel shall be entitled to rely upon an opinion
or opinions of Xxxxx X. Xxxxxxxx, Esq.;
(c) Xxxxx X. Xxxxxxxx, Esq., Senior Vice President for the Company, or
other counsel for the Company and the Trust acceptable to the Representatives,
shall have furnished to the Representatives his written opinion, dated the Time
of Delivery for the Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented;
-17-
(ii) The Company has an authorized share capital as set forth
in the Prospectus and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which, in such counsel's
opinion, the Company is required to be so qualified or if the Company
is not so qualified in any such state or jurisdiction, the failure to
so qualify would not, considering all cases in the aggregate, involve a
material risk to the business, properties, financial position or
results of operation of the Company and its subsidiaries, taken as a
whole;
(iv) Each of the Principal Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; all of the issued
shares of capital stock of each of St. Xxxx Fire and Marine Insurance
Company, United States Fidelity and Guaranty Company and approximately
78% of the issued shares of capital stock of The Xxxx Nuveen Company
have been duly authorized and validly issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or the Principal Subsidiaries,
provided that such counsel shall state that he believes that both the
Representatives and he are justified in relying upon such opinions and
certificates);
(v) To such counsel's knowledge, there are no legal or
governmental proceedings pending to
-18-
which the Trust, the Company or any of its subsidiaries is a party or
of which any property of the Trust, the Company or any of its
subsidiaries is the subject, other than as set forth in the Prospectus,
as amended or supplemented and other than litigation or proceedings
(none of which is reasonably likely to be material) incident to the
kinds of business conducted by the Company and its subsidiaries, which,
if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate (after giving effect to any
applicable insurance, reinsurance or reserves therefor) have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust;
(vii) To such counsel's knowledge, the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Declaration, and the agreements and instruments contemplated by the
Declaration and described in the Prospectus as amended or supplemented;
to such counsel's knowledge, the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described in the
Prospectus as amended or supplemented; to the best of such counsel's
knowledge, there are no legal or governmental proceedings pending to
which the Trust is a party or of which any property of the Trust is the
subject and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(viii) The Common Trust Securities conform to the description
thereof contained in the Prospectus as amended or supplemented; and to
-19-
such counsel's knowledge, all of the issued and outstanding Common
Trust Securities of the Trust are directly owned by the Company free
and clear of all liens, encumbrances, security interests, equities or
claims;
(ix) Each of the Guarantee Agreement, the Indenture and the
Debentures has been duly authorized and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, fraudulent transfer, fraudulent conveyance, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (whether such
principles are considered in a proceeding in equity or in law); the
Declaration, the Indenture and the Guarantee Agreement have been duly
qualified under the Trust Indenture Act; the Debentures are entitled to
the benefits of the Indenture; and the Guarantee Agreement, the
Declaration, the Indenture and the Debentures conform to the
descriptions thereof in the Prospectus, as amended or supplemented;
(x) The issue and sale of the Securities and the Common Trust
Securities by the Trust, the issue and sale of the Debentures
underlying such Trust Securities by the Company, the compliance by the
Company and the Trust, as applicable, with all of the provisions of
this Agreement, the Guarantee Agreement, the Declaration and the
Indenture and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions
-20-
result in any violation of the provisions of the Restated Articles of
Incorporation or by-laws of the Company or the articles of
incorporation or by-laws (or similar documents) of any of its
subsidiaries or any statute or any order, rule or regulation known to
such counsel of any court, insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; no consent of or with
any court or governmental agency or body is required for the issue and
sale of the Securities and the Common Trust Securities by the Trust,
the issue and sale of the Debentures underlying such Trust Securities
by the Company, the compliance by the Company and the Trust, as
applicable, with all of the provisions of this Agreement, the Guarantee
Agreement, the Declaration or the Indenture or the consummation of the
transactions herein or therein contemplated, except for (A) the
registration under the Act of the Securities, the Debentures and the
Guarantee, (B) the approval and registration of the Securities with the
Exchange, which has been obtained, (C) such as have been obtained under
the Trust Indenture Act and (D) such consents as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(xi) The issue and sale of the Securities by the Trust, the
purchase of the Debentures underlying the Trust Securities by the
Trust, the compliance by the Trust with all of the provisions of the
Declaration and this Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Trust is a party or by which the Trust is bound or to
which any of the property or assets of the Trust is subject, nor will
such action result in any violation of the provisions of the
Declaration or
-21-
any statute or any order, rule or regulation known to such counsel of
any court, insurance regulatory authority, if applicable, or other
governmental agency or body having jurisdiction over the Trust or any
of its properties; and no consent of or filing with any such court,
insurance regulatory authority or other governmental agency or body is
required for the issue and sale of the Securities and the Common Trust
Securities by the Trust, the purchase of the Debentures underlying such
Trust Securities by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement or the Declaration, except
(A) the registration under the Act of the Securities, the Debentures
and the Guarantee, (B) the approval and registration of the Securities
with the Exchange, which has been obtained, (C) such as have been
obtained under the Trust Indenture Act and (D) such consents as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(xii) Neither the Company nor any of its subsidiaries is in
violation of its organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties is or may be bound,
except where any such default does not have or would not reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(xiv) The statements set forth in the Prospectus under the
captions "Description of the Preferred Securities that the Trust May
Offer", and "Description of the Trust Guarantee", insofar as they
purport to constitute a summary of the terms of the securities therein
described, and, subject to the limitations set forth therein, under the
caption "Underwriting" insofar as they
-22-
purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(xv) Neither the Company nor the Trust is and, after giving
effect to each offering and sale of the Securities will be, an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act;
(xvi) The documents incorporated by reference in the
Prospectus(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in the case
of the registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xvii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company and the
Trust prior to the date of such opinion for the Securities (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture
-23-
Act and the rules and regulations thereunder; such counsel has no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company and the
Trust prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus or any further amendment or supplement thereto
made by the Company and the Trust prior to the date of such opinion
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading or that, as of the date of such
opinion, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company and the
Trust prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
provided that in lieu of the delivery of the opinion set forth in
paragraph (iv) of this Section 7(c) as to The Xxxx Nuveen Company, such
-24-
counsel may cause Xxxx X. Berkshire, Vice President and General Counsel
to The Xxxx Nuveen Company, to deliver an opinion as to such matters,
dated the Time of Delivery for such Securities.
(d) Xxxxxxxx, Xxxxxx & Finger P.A., special Delaware counsel to the
Trust, shall have furnished to the Representatives their written opinion, dated
such Time of Delivery, in form and substance satisfactory to you to the effect
that:
(i) The Trust has been duly formed and is validly existing in
good standing as a business trust under the Delaware Business Trust
Act.
(ii) The Declaration constitutes a valid and binding
obligation of the Company and the trustees parties thereto (the
"Declaration Trustees"), enforceable against the Company and the
Declaration Trustees in accordance with its terms, and the terms of the
Trust Securities, to the extent they are obligations of the Trust, are
valid and binding obligations of the Trust in accordance with the terms
of the Declaration, subject to the effect of (A) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (B)
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at a law), and (C) applicable public policy with respect to
provisions relating to indemnification or contribution.
(iii) Under the Delaware Business Trust Act and the
Declaration, (A) the Trust has the requisite trust power and authority
(x) to own its properties and conduct its business, all as described
under the captions "St. Xxxx Capital Trust I" in the Prospectus, (y) to
issue and perform its obligations under the Securities, and (z) to
execute and deliver, and perform its
-25-
obligations under this Agreement, and (B) the execution and delivery by
the Trust of this Agreement, and the performance by the Trust of its
obligations hereunder, have been duly authorized by all requisite trust
action on the part of the Trust. This Agreement has been duly executed
and delivered by the Trust.
(iv) The Securities have been duly authorized by the
Declaration and duly and validly issued and, subject to the
qualifications set forth in this paragraph (iv), fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust. The holders of the Securities, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. Such
counsel may note that the holders of the Securities may be obligated,
pursuant to the Declaration, to make payments and provide indemnity and
security as set forth in the Declaration.
(v) The Common Trust Securities have been duly authorized by
the Declaration and validly issued and represent undivided beneficial
interests in the assets of the Trust.
(vi) Under the Declaration and the Delaware Business Trust
Act, (A) the issuance of the Securities is not subject to preemptive
rights to subscribe for additional Securities or Common Trust
Securities, and (B) the Securities are the only interests in the assets
of the Trust authorized to be issued by the Trust.
(vii) The issuance and sale by the Trust of the Securities in
accordance with the Declaration, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the
Trust of the transactions contemplated by the Declaration, the
Securities and this Agreement, and the compliance by the Trust with its
obligations hereunder and
-26-
thereunder are not prohibited by (A) the Trust's certificate of trust
or the Declaration, or (B) any applicable Delaware statute or
administrative regulation.
(viii) No authorization, approval, consent or order of any
Delaware governmental authority or Delaware agency is required to be
obtained, and no filing or registration with any Delaware governmental
authority or Delaware agency is required to be made, by the Trust
solely in connection with the issuance and sale by the Trust of the
Securities.
(e) Xxxxxxxx & Xxxxxxxx, special tax counsel for the Company and the
Trust, shall have furnished to the Representatives their written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, to the effect
that the discussion set forth in the Prospectus under the heading "Certain
Federal Income Tax Consequences", insofar as it relates to matters of United
States federal income tax law, is accurate in all material respects;
(f) On the date of this Agreement and at the Time of Delivery for such
Securities, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively and, with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance satisfactory to
the Representatives;
(g) (i) Neither the Trust, the Company nor any of its Principal
Subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss or
interference with its business from fire,
-27-
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and since the respective
dates as of which information is given in the Prospectus there shall not have
been any change in the capital stock or long-term debt of the Trust, the Company
and its subsidiaries taken as a whole (other than any decrease in the capital
stock resulting from purchases under the Company's Stock Repurchase Program and
any increase in the capital stock resulting from the exercise of stock options
or the issuance of restricted shares under the Company's stock incentive and
employee compensation plans, or the conversion of Series B Convertible Preferred
Stock) or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus as amended
or supplemented prior to such Time of Delivery, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
(h) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or the
Company's financial strength or claims paying ability by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and (ii) other than as
disclosed in the Prospectus, no such organization shall have publicly announced
or otherwise given notice to the Company that it has under surveillance, review
or watch, with possible negative implications, its rating of any of the
Company's debt securities or the Company's financial strength or claims paying
ability, or of any review for a possible change therein that does not indicate
the direction of the possible change;
(i) On or after the date of this Agreement there shall not have
occurred any of the following: a suspension
-28-
or material limitation in trading in securities generally on the New York Stock
Exchange; a suspension or material limitation in trading the Company's or the
Trust's securities on the New York Stock Exchange; a general moratorium on
commercial banking activities in New York declared by either Federal or New York
State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; or the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or the occurrence of any other
calamity or crisis or change in financial, political or economic conditions in
the United States or elsewhere if the effect of any such event specified in this
clause (iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
(j) The Company and the Trust shall have each furnished or caused to be
furnished to the Representatives at the Time of Delivery for the Securities a
certificate or certificates of officers of the Company and the Trust
satisfactory to the Representatives as to the accuracy of the representations
and warranties of the Company and the Trust, as the case may be, herein at and
as of such Time of Delivery, as to the performance by the Company and the Trust,
as the case may be, of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in subsections (a)
and (g) of this Section and as to such other matters as the Representatives may
reasonably request; and
(k) The Securities shall have been duly listed, subject to notice of
issuance of the Exchange.
8. (a) Each of the Company and the Trust, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary
-29-
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor the Trust shall be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Prospectus relating to such
Securities; and provided, further, that neither the Company nor the Trust shall
be liable to any Underwriter under the indemnity agreement in this subsection
(a) with respect to any Preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Act if the Company has previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company and
the Trust against any losses, claims, damages or liabilities to which the
Company and the Trust may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or
-30-
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company and the Trust for any legal or other
expenses reasonably incurred by the Company or the Trust in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified
-31-
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Trust on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Trust on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion
-32-
as the total net proceeds from such offering (before deducting expenses)
received by the Company and the Trust bear to the total underwriting discounts
and commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Trust and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company and the Trust under this Section 8
shall be in addition to any liability which the Company and the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the
-33-
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company and the Trust within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase under this Agreement, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Securities for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company and the Trust agree to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of such Securities which remains unpurchased does not exceed one-tenth of
the aggregate principal amount of the Securities, then the Company shall
-34-
have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities which such Underwriter agreed to purchase under
this Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Securities which
such Underwriter agreed to purchase under the Agreement) of the Securities of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Securities, as referred to in subsection (b)
above, or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement (or, with respect to
the Second Time of Delivery, the obligation of the Underwriters to purchase and
Company and the Trust to sell the Optional Securities) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter, the
Company or the Trust, except for the expenses to be borne by the Company, the
Trust and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Trust and the several Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, the Company or
the Trust, or any officer or director or controlling person of the Company or
the Trust, and shall survive delivery of and payment for the Securities.
-35-
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Trust shall then be under any liability to any
Underwriter with respect to the Securities covered by this Agreement except as
provided in Section 6 and Section 8 hereof; but, if for any other reason
Securities are not delivered by or on behalf of the Company and the Trust as
provided herein, the Company and the Trust, jointly and severally, will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Securities, but neither
the Company nor the Trust shall then be under further liability to any
Underwriter with respect to such Securities except as provided in Section 6 and
Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
shall act on behalf of each of such Underwriters, and the parties hereto shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives jointly or by
such of the Representatives, if any, as may be designated for such purpose in
this Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives in care of
[ ] and if to the Company or the Trust shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement: Attention: Xxxxx X. Xxxxxxxx, Esq., Senior Vice
President; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company and the Trust by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
-36-
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, the Trust and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors of the Company and
each person who controls the Company, the Trust or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall together constitute one
and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof.
Very truly yours,
THE ST. XXXX COMPANIES, INC.
By:
-----------------------------
Name:
Title:
-37-
Accepted as of the date hereof:
[UNDERWRITERS]
BY: [ ]
By:
---------------------------------
Name:
Title:
On behalf of each of the Underwriters
-38-
SCHEDULE I
STATED
LIQUIDATION
AMOUNT OF
STATED OPTIONAL
LIQUIDATION SECURITIES TO
AMOUNT OF FIRM BE PURCHASED
SECURITIES TO IF MAXIMUM
UNDERWRITER BE PURCHASED EXERCISED
----------- -------------- -------------
$ $
Total...........................
------------- -------------
$[ ] $[ ]
============= =============
