Exhibit 10.1
EXECUTION COPY
REPURCHASE AGREEMENT
This Repurchase Agreement (this "Agreement") is made as of March 29,
2005, by and between Nuveen Investments, Inc., a Delaware corporation (the
"Company"), and The St. Xxxx Travelers Companies, Inc., a Minnesota corporation
(the "Selling Stockholder").
BACKGROUND
A. The Company has filed a Registration Statement on Form S-3 with the
Securities and Exchange Commission (as amended, the "Registration Statement")
with respect to the sale of certain shares of Class A common stock of the
Company (the "Class A Common Stock") by the Selling Stockholder, which
Registration Statement was subsequently declared effective by the Securities and
Exchange Commission.
B. The Company has filed preliminary prospectus supplements relating
to (1) an underwritten offering of shares of Class A Common Stock by the Selling
Stockholder (the "Stock Offering"), and (2) an offering of shares of Class A
Common Stock underlying certain mandatorily exchangeable securities (the
"Mandatorily Exchangeable Offering").
C. Selling Stockholder is the record and beneficial owner of
60,999,414 shares of Class B common stock of the Company (the "Class B Common
Stock").
D. Simultaneous with, and contingent upon, the closing of the Stock
Offering as set forth in Section 2(a)(ii) below, the receipt of financing
necessary to enable the Company to satisfy its obligations hereunder, on
substantially the terms contained in the executed commitment letter attached as
Annex A hereto (the "Financing Condition"), and further contingent upon the
other terms and conditions contained in this Agreement, the Selling Stockholder
desires to sell, and the Company desires to repurchase, such number of shares of
Class B Common Stock as is equal to $200 million (the "Closing Consideration")
divided by the lesser of (i) the net offer proceeds per share to be received by
the Selling Stockholder from the underwriters in the Stock Offering as set forth
on the cover of the related prospectus (such per share amount, the "Net Offer
Proceeds") and (ii) $40.00, rounded (if necessary) to the nearest whole share
(such number, the "Closing Repurchase Shares") upon the terms and subject to the
conditions of this Agreement (the "Closing Repurchase").
E. On a forward basis, contingent upon the closing of the Stock
Offering as set forth in Section 2(a)(ii) below, the Financing Condition and the
other terms and conditions contained in this Agreement, Selling Stockholder
desires to sell, and the Company desires to repurchase, the Forward Repurchase
Shares (as defined below) upon the terms and subject to the conditions of this
Agreement (the "Forward Repurchase").
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein, and for good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. TRANSFER RESTRICTIONS. During the term of this Agreement, Selling
Stockholder shall not convey, give, assign, pledge, sell, distribute, dispose or
otherwise transfer any Repurchase Shares (as defined below) or any option,
warrant or any other interest herein, except as provided herein.
2. CLOSING REPURCHASE. Upon the terms and subject to the conditions
contained in this Agreement, the Company shall have the obligation at the
Closing (as defined below) to repurchase all of the Closing Repurchase Shares
from Selling Stockholder upon delivery therefrom, and Selling Stockholder shall
have the obligation at the Closing to sell all of the Closing Repurchase Shares
to the Company, as follows:
(a) The obligations of the parties to affect the closing of the
Closing Repurchase (the "Closing") are contingent upon the following:
(i) MUTUAL CONDITIONS.
(A) satisfaction of the Financing Condition; and
(B) the Company's capital shall not be impaired within
the meaning of Section 160 of the Delaware General Corporation Law at the
time of the Closing, nor shall the Closing Repurchase cause any such
impairment of the capital of the Company;
(ii) CONDITIONS ON THE OBLIGATIONS OF THE COMPANY.
(A) the closing of the Stock Offering either (I) for
not less than 33,655,354 shares of Class A Common Stock, or (II) at an
aggregate offering size of not less than $1 billion;
(B) the representations and warranties of Selling
Stockholder contained in Section 5 shall have been true and correct in all
material respects as of the date of this Agreement and as of the Closing;
and
(C) the covenants required to have been performed or
complied with by Selling Stockholder prior to the Closing shall have been
performed or complied with in all material respects.
(iii) CONDITIONS ON THE OBLIGATIONS OF SELLING STOCKHOLDER.
(A) the closing of the Stock Offering;
(B) the representations and warranties of the Company
contained in Section 6 shall have been true and correct in all material
respects as of the date of this Agreement and as of the Closing; and
(C) the covenants required to have been performed or
complied with by the Company prior to the Closing shall have been performed
or complied with in all material respects.
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(b) Subject to Section 2(a) above, at the Closing and
simultaneously with the closing of the Stock Offering:
(i) Selling Stockholder shall deliver to the Company one or
more certificates representing the Closing Repurchase Shares, duly endorsed for
transfer, with appropriate stock powers attached, properly signed and with any
necessary documentary or transfer tax stamps duly affixed and cancelled, free
and clear of any claims, liens, security interests, restrictions, pledges and
encumbrances of any kind (except for such restrictions on transfer as may exist
generally under applicable federal and state securities laws); and
(ii) the Company shall deliver to Selling Stockholder via
wire-transfer in immediately available funds, to an account designed by Selling
Stockholder in writing on or before the second business day prior to the
Closing, $200 million.
3. FORWARD REPURCHASE. Upon the terms and subject to the conditions
contained in this Agreement, the Company shall have the obligation on the
Settlement Date (as defined below) to repurchase all of the Forward Repurchase
Shares (collectively with the Closing Repurchase Shares, the "Repurchase
Shares," with the Closing Repurchase and the Forward Repurchase, collectively,
the "Repurchase") from Selling Stockholder upon delivery therefrom, and Selling
Stockholder shall have the obligation on the Settlement Date to sell all of the
Forward Repurchase Shares to the Company, as follows:
(a) The obligations of the parties to effect the closing of the
Forward Repurchase are contingent upon the following:
(i) MUTUAL CONDITIONS.
(A) the Closing Repurchase shall have occurred; and
(B) the Company's capital shall not be impaired within
the meaning of Section 160 of the Delaware General Corporation Law at the
time of the Settlement Date, nor shall the Forward Repurchase cause any
such impairment of the capital of the Company;
(ii) CONDITIONS ON THE OBLIGATIONS OF THE COMPANY.
(A) the representations and warranties of Selling
Stockholder contained in Section 5 shall have been true and correct in all
material respects as of the date of this Agreement and as of the Settlement
Date; and
(B) the covenants required to have been performed or
complied with by Selling Stockholder prior to the Settlement Date shall
have been performed or complied with in all material respects; and
(iii) CONDITIONS ON THE OBLIGATIONS OF SELLING STOCKHOLDER.
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(A) the representations and warranties of the Company
contained in Section 6 shall have been true and correct in all material
respects as of the date of this Agreement and as of the Settlement Date;
and
(B) the covenants required to have been performed or
complied with by the Company prior to the Settlement Date shall have been
performed or complied with in all material respects.
(b) Subject to Section 3(a) above, on the Settlement Date:
(i) Selling Stockholder shall deliver to the Company one or
more certificates representing the Forward Repurchase Shares, duly endorsed for
transfer, with appropriate stock powers attached, properly signed and with any
necessary documentary or transfer tax stamps duly affixed and cancelled (or in
the event that Section 7(c) below becomes applicable, Selling Stockholder may in
the alternative deliver the Forward Repurchase Shares via book-entry transfer in
customary form and according to customary procedures), free and clear of any
claims, liens, security interests, restrictions, pledges and encumbrances of any
kind (except for such restrictions on transfer as may exist generally under
applicable federal and state securities laws); and
(ii) the Company shall deliver to Selling Stockholder via
wire-transfer in immediately available funds, to an account designated by
Selling Stockholder in writing on or before the second business day prior to the
Settlement Date, the Forward Consideration.
(c) For purposes of this Agreement:
(i) "Consent Condition" shall mean receipt by the Company or
its applicable subsidiaries of Consents (as defined below) from clients
representing at least the Threshold Percentage of the Company's aggregate assets
under management in investment companies (or series thereof) registered under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
for which the Company or its subsidiaries provides investment management or
advisory services pursuant to an investment advisory agreement (a "Fund") as of
the record date for the meeting of the shareholders of each such Fund held to
vote on the Consent, as defined in the next sentence. As used herein, "Consent"
shall mean the necessary approval of the board and shareholders of the
applicable Fund pursuant to the provisions of Section 15 of the Investment
Company Act of a new investment advisory agreement for such Fund having
substantially the same terms as the agreement in effect immediately prior to the
effectiveness of the new agreement. For purposes of determining whether the
Consent Condition has been met, the calculation of the percentage of Consents
received shall be made without regard to any change in the assets under
management referred to in the first sentence of this definition resulting from
changes in market value from and after the record date for the meeting of the
shareholders of each Fund held to vote on the Consent.
(ii) "Forward Consideration" shall mean the sum of $400
million, plus (x) interest accrued on such amount at an annual rate of 3.5% from
the date hereof through the Settlement Date, less (y) the aggregate amount of
any dividends actually paid and received
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(or to be received in respect of a dividend record date occurring on or before
the Settlement Date) by the Selling Stockholder in respect of the Forward
Repurchase Shares from the date hereof through the Settlement Date. Interest
shall be calculated on the basis of a 360-day year comprised of twelve 30-day
months.
(iii) "Forward Repurchase Shares" shall mean such number of
shares of Class A Common Stock or Class B Common Stock that is equal to $400
million divided by the lesser of (x) the Net Offer Proceeds, and (y) $40.00,
rounded (if necessary) to the nearest whole share; provided, that, if the
Consent Condition is not met on or prior to December 23, 2005, the Forward
Repurchase Shares shall mean an equal number of shares of Class A Common Stock
(which Selling Stockholder, in accordance with Section 7(c) hereof, shall hereby
be required to acquire in open market purchases or borrow on or prior to the
Settlement Date). An appropriate adjustment shall be made to the values set
forth in clauses (x) and (y) of the preceding sentence in the event of any stock
dividend, stock split, combination or similar event.
(iv) "Settlement Date" shall mean December 23, 2005, or such
earlier date that is the date as soon as practicable but in no event more than
five business days following the date on which the Consent Condition is met as
agreed between the parties.
(v) "Threshold Percentage" shall mean (A) before August 25,
2005, 90%, and (B) on and after August 25, 2005, 80%.
4. RIGHTS AS A STOCKHOLDER. Prior to the Closing Repurchase, and
except as set forth in Section 1 hereof, Selling Stockholder shall retain all
rights as a stockholder of the Company with respect to the Closing Repurchase
Shares, including, without limitation, the right to vote the Closing Repurchase
Shares and the right to receive and retain any dividends thereon. Prior to the
Forward Repurchase, and except as set forth in Section 1 hereof, Selling
Stockholder shall retain all rights as a stockholder of the Company with respect
to the Forward Repurchase Shares, including, without limitation, the right to
vote the Forward Repurchase Shares and the right to receive and retain any
dividends thereon (subject, in the case of dividends, to the definition of
Forward Consideration).
5. REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDER. Selling
Stockholder hereby represents and warrants to the Company as follows:
(a) ORGANIZATION. Selling Stockholder is duly organized, validly
existing and in good standing under the laws of the State of Minnesota.
(b) GOOD AND VALID TITLE. Selling Stockholder is the sole record
owner of, and has and will have good and valid title to, all Repurchase Shares
being sold pursuant to this Agreement, free and clear of all liens,
encumbrances, security interests and claims whatsoever; and upon sale and
delivery of, and payment for, such Repurchase Shares, as provided herein, at the
Closing, Selling Stockholder will convey to the Company good and valid title to
such Repurchase Shares, free and clear of all liens, encumbrances and security
interests.
(c) AUTHORITY; AUTHORIZATION OF AGREEMENT. Selling Stockholder
has the requisite power and authority, including corporate authority, to enter
into this Agreement and to perform the transactions contemplated hereby. This
Agreement has been duly authorized,
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executed and delivered by Selling Stockholder, and assuming the due
authorization, execution and delivery hereof by the Company, constitutes a valid
and legally binding agreement of Selling Stockholder, enforceable against
Selling Stockholder in accordance with its terms, except as such enforcement may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally, and (ii) general equitable principles.
(d) ABSENCE OF VIOLATIONS; NO CONFLICTS. The execution and
delivery of this Agreement by or on behalf of the Selling Stockholder, the sale
of the Repurchase Shares by Selling Stockholder, the consummation of any of the
other transactions contemplated herein, and the fulfillment of the terms hereof,
has not violated and will not violate the organizational documents of Selling
Stockholder, any provision of law or regulation or any material contract to
which Selling Stockholder is subject, or any order, judgment or decree of any
governmental authority to which Selling Stockholder is subject.
(e) ACCURACY OF INFORMATION REGARDING SELLING STOCKHOLDER.
Selling Stockholder has reviewed the Registration Statement and the
Prospectuses, and such parts of the Registration Statement and the Prospectuses
comprising information which specifically relates to Selling Stockholder did
not, at the date the Registration Statement became effective, contain any untrue
statement of a material fact regarding the Selling Stockholder or omit to state
a material fact regarding the Selling Stockholder required to be stated therein
or necessary to make the statements therein not misleading and, at the date of
the Prospectuses, did not contain any untrue statement of a material fact
regarding the Selling Stockholder or omit to state any material fact regarding
the Selling Stockholder required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
(f) ABSENCE OF PROCEEDINGS. No actions, suits or proceedings
before or by any court or governmental agency, body or authority, or arbitrator
are pending or, to the best of Selling Stockholder's knowledge, threatened or
contemplated, seeking to prevent the sale of the Repurchase Shares or the
consummation of the transactions contemplated by this Agreement.
(g) ABSENCE OF MANIPULATION. Selling Stockholder has not taken
and will not take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result, under the
Securities Exchange Act of 1934 or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Repurchase Shares.
(h) INFORMATION. Selling Stockholder confirms that the Company
has made available to Selling Stockholder and its representatives the
opportunity to ask questions of the officers and management employees of the
Company and to acquire such additional information about the business and
financial condition of the Company as Selling Stockholder has requested, and all
such information has been received.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Selling Stockholder as follows:
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(a) ORGANIZATION. The Company is duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) AUTHORITY; Authorization of Agreement. The Company has the
requisite power and authority, including corporate authority, to enter into this
Agreement and to perform the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Company, and assuming
the due authorization, execution and delivery hereof by Selling Stockholder,
constitutes a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as such enforcement may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally, and (ii) general equitable principles.
(c) ABSENCE OF VIOLATIONS; NO CONFLICTS. The execution and
delivery of this Agreement by or on behalf of the Company, the purchase of the
Repurchase Shares by the Company, the consummation of any of the other
transactions contemplated herein, or the fulfillment of the terms hereof, has
not violated and will not violate the organizational documents of the Company,
any provision of law or regulation or any material contract to which the Company
is subject, or any order, judgment or decree of any governmental authority to
which the Company or its subsidiaries or their property and assets is subject.
(d) COMMON STOCK REPURCHASE. The Repurchase has been approved by
a committee of the Board of Directors of the Company comprised solely of
directors that do not have a relationship which, in the opinion of the Board of
Directors of the Company, would interfere with the exercise of the independent
judgment by such person in carrying out his responsibilities as a director of
the Company with respect to the Repurchase.
7. ADDITIONAL COVENANTS.
(a) The Company agrees to use its reasonable best efforts to
satisfy the Consent Condition by August 1, 2005, and agrees to continue to use
its reasonable best efforts to satisfy the Consent Condition following such date
to the extent the Consent Condition is not satisfied as of such date, and shall
advise the Selling Stockholder upon request regarding the status of its efforts
to gain the consents contemplated by the Consent Condition. In addition, the
Company shall discuss on not less than a weekly basis with the Selling
Stockholder any issuance(s) of shares of common stock of the Company as a result
of which the total outstanding shares of common stock of the Company would
exceed 95,000,000, 96,000,000 or 97,000,000, with the intention to provide the
Selling Stockholder with sufficient advance notice with respect to any such
issuances.
(b) Selling Stockholder agrees that it shall promptly reimburse
the Company for all reasonable expenses incurred by the Company in furtherance
of its obligations to use reasonable best efforts to satisfy the Consent
Condition as set forth under Section 7(a) above.
(c) Selling Stockholder agrees that it shall, until the
occurrence of the Settlement Date, retain at all times, and not transfer,
ownership of a sufficient number of shares
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of Class B Common Stock (including those shares subject to the forward
agreements entered into in connection with the Mandatorily Exchangeable
Offering) such that it will hold at all such times in excess of 25% of the
voting securities of the Company.
(d) If the Consent Condition is not met on or prior December 1,
2005, Selling Stockholder covenants and agrees that following such date it shall
take the necessary and appropriate actions such that until December 27, 2005, it
shall have retained, and not transferred, ownership of the shares of Class B
Common Stock that, in accordance with the definition of Forward Repurchase
Shares, had the Consent Condition been met, would have been Forward Repurchase
Shares, and shall instead have undertaken open market purchases of, or borrowed,
a sufficient number of shares of Class A Common Stock in order to deliver such
Forward Repurchase Shares on the Settlement Date. Any purchases or borrowings by
the Selling Stockholder of Class A Common Stock shall comply in all respects
with applicable securities laws.
(e) Selling Stockholder agrees that it shall, pursuant to
Sections 6.5(a)(i) and 6.5(a)(ii) of the Restated Certificate of Incorporation
of the Company (the "Certificate"), cause all shares of Class B Common Stock
held of record or beneficially by Selling Stockholder or any of its affiliates
to be converted into shares of Class A Common Stock immediately following the
occurrence of the earlier of: (i) the Consent Condition having been satisfied
and the Settlement Date having occurred, and (ii) Selling Stockholder having
ceased to hold at least 25% of the outstanding voting securities of the Company.
Selling Stockholder further agrees that immediately prior to such conversion it
shall cause the Class B Directors (as defined in the Certificate) to resign or
be removed from the Board of Directors of the Company.
8. TERMINATION. This Agreement may be terminated by mutual agreement
of the Company and Selling Stockholder.
9. SPECIFIC PERFORMANCE. The parties acknowledge and agree that in the
event of any breach of this Agreement, the parties would be irreparably harmed.
It is accordingly agreed that each of the Company and Selling Stockholder, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to request specific performance of the transactions
contemplated by this Agreement.
10. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire and final
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject matter
hereof which are of no further force or effect.
12. AMENDMENTS; WAIVER. No amendment, modification or waiver of this
Agreement shall be effective unless set forth in writing and, in the case of an
amendment or modification, signed by the parties hereto, and in the case of a
waiver, signed by the party against which the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
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exercise or waiver thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. PUBLIC ANNOUNCEMENTS. The Company and the Selling Stockholder
agree that any press release regarding this Agreement or the Company Repurchase
shall be mutually acceptable.
15. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their heirs, legal representatives,
successors and assigns; provided, however, that the Company may not assign its
rights or delegate its obligations under this Agreement without the express
prior written consent of the Selling Stockholder, and the Selling Stockholder
may not assign its rights or delegate its obligations under this Agreement
without the express prior written consent of the Company.
16. HEADINGS. Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
17. SURVIVAL. All representations, warranties and covenants shall
survive the closing of the Repurchase.
18. NOTICES. All notices hereunder shall be sufficiently given for all
purposes hereunder if in writing and delivered personally, sent by documented
overnight delivery service or, to the extent receipt is confirmed, telecopy or
other electronic transmission service to the appropriate address or number as
set forth below.
Notices to the Selling Stockholder shall be addressed to:
The St. Xxxx Travelers Companies, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: General counsel
Fax: (000) 000-0000
or at such other address and to the attention of such other person as Selling
Stockholder may designate by written notice to the Company.
Notices to the Company shall be addressed to:
Nuveen Investments, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General counsel
Fax: (000) 000-0000
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with a copy to:
Jenner & Block LLP
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxx
Fax: (000) 000-0000
or at such other address and to the attention of such other persons the Company
may designate by written notice to Selling Stockholder.
19. SEVERABILITY. If at any time subsequent to the date hereof any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void or unenforceable, such provision shall be of no force and
effect, but shall not affect the legality or enforceability of any other
provision of this Agreement.
20. FURTHER ASSURANCES. From time to time on and after the date of
this Agreement, each of the parties hereto shall take or cause to be taken all
action, and do or cause to be done all things necessary, proper and advisable,
to consummate and make effective as promptly as reasonably practicable, the
transactions contemplated hereby in accordance with the terms hereof.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement as of the
date first above written.
THE COMPANY
NUVEEN INVESTMENTS, INC.
By: /s/ Xxxx X. Berkshire
----------------------------
Name: Xxxx X. Berkshire
Title: Senior Vice President
SELLING STOCKHOLDER
THE ST. XXXX TRAVELERS
COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
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