Exhibit 1.2
THE ST. ▇▇▇▇ COMPANIES, INC.
[DEPOSITARY SHARES
EACH REPRESENTING ____ SHARES OF]
PREFERRED STOCK
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Underwriting Agreement
[Date]
[UNDERWRITERS]
[As representatives of the several Underwriters
named in Schedule 1 hereto,]
[c/o NAME]
[ADDRESS]
Ladies and Gentlemen:
From time to time The St. ▇▇▇▇ Companies, Inc., a Minnesota corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares of its preferred stock, (liquidation
preference $[ ]) (the "Shares"), which may be represented by depositary shares
(the "Depositary Shares")* deposited against delivery of Depositary Receipts
(the "Depositary Receipts") evidencing the Depositary Shares which are to be
issued by the depositary specified in Schedule II to such Pricing Agreement (the
"Depositary"), under a deposit agreement, dated the date specified in Schedule
II to such Pricing Agreement, among the Company, the Depositary and the holders
from time to time of the Depositary Receipts issued thereunder. Each Depositary
Share will represent beneficial ownership of the fraction of a share of
Preferred Stock, as specified in Schedule II to such
* As an alternative to this formulation, if depositary shares are not being
offered and sold, all references to depositary shares could be deleted.
Pricing Agreement. The shares of Preferred Stock or the Depositary Shares
representing such shares specified in such Pricing Agreement, as the case may
be, are referred to as the "Firm Shares" with respect to such Pricing Agreement
and the shares of Preferred Stock represented by such Pricing Agreement are
referred to as the shares of "Designated Preferred Stock" with respect to such
Pricing Agreement.
If specified in such Pricing Agreement, the Company may grant the
Underwriters the right to purchase at their election an additional number of
shares of Preferred Stock or Depositary Shares, as the case may be, specified as
provided in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively referred to as the "Designated Shares". The Designated Preferred
Stock may be convertible into shares of common stock, without par value, of the
Company (the "Stock"), as specified in Schedule II to such Pricing Agreement.
The securities so specified, if any, are referred to in such Pricing Agreement
as the Designated Shares with respect to such Pricing Agreement.
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time
to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the Shares
or as an obligation of any of the Underwriters to purchase the Shares. The
obligation of the Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be evidenced by
the Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing
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Agreement shall specify the aggregate principal amount of such Designated
Shares, the maximum number of Optional Shares, if any, the initial public
offering price of such Firm and Optional Shares, [the manner of determining such
price, the terms of the Designated Shares, including the terms on which and
terms of the securities into which the Designated Shares will be convertible or
exchangeable, whether the Designated Shares will be represented by Depositary
Shares, the name of the Depositary and the date of the Deposit Agreement,] the
purchase price to the Underwriters of such Designated Shares, the names of the
Underwriters of such Designated Shares, the names of the Representatives of such
Underwriters and the principal amount of such Designated Shares to be purchased
by each Underwriter and shall set forth the date, time and manner of delivery of
such Firm and Optional Shares and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. o) (the "Initial
Registration Statement") in respect of the Shares 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,
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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 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
Statement 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
Statement, any post-effective amendment thereto, and the Rule 462(b)
Registration Statement, 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 Statements 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 Shares, 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
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Initial Registration Statement 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 supplemented in relation to the applicable
Designated Shares 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 of Designated Shares
through the Representatives expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Shares;
(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
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of the Act and the Trust Indenture Act of 1939, as amended (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 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 of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or supplemented
to relate to a particular issuance of Shares;
(d) Neither 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 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 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 Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
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(e) 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. ▇▇▇▇ Fire
and Marine Insurance Company, United States Fidelity and Guaranty Company and
The ▇▇▇▇ 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;
(f) 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;
the shares of Stock initially issuable upon conversion of the Shares have been
duly and validly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Shares, will be duly and
validly issued, fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus; all of the issued shares
of capital stock of each of St. ▇▇▇▇ Fire and Marine Insurance Company, United
States Fidelity and Guaranty Company and The ▇▇▇▇ Nuveen Company held directly
or indirectly by the Company have been duly authorized and validly issued, are
fully paid and non-assessable and (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;
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(g) The Shares and the Depositary Shares have been duly authorized by
the Company, and, when Firm Shares are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated Shares and,
in the case of any Optional Shares, pursuant to the Overallotment Options (as
defined in Section 3 hereof)with respect to such Shares, such Designated Shares
will be duly 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 duly
qualified under the Trust Indenture Act and, at the Time of Delivery for such
Designated Shares (as defined in Section 4 hereof), the Indenture 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 conforms,
and the Designated Shares will conform, to the descriptions thereof contained in
the Prospectus as amended or supplemented with respect to such Designated
Shares;
(h) The issue and sale of the Shares and the Depositary Shares and the
compliance by the Company with all of the provisions of the Shares, this
Agreement, any Pricing Agreement, each Overallotment Option and the Deposit
Agreement, if any, 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 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 Shares or the
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consummation by the Company of the transactions contemplated by this Agreement
or any Pricing Agreement or any Overallotment Option, or the Deposit Agreement,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act with respect to the Shares and the shares of Stock
issuable upon conversion of Shares, 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 Shares by the Underwriters;
(i) 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 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;
(j) The statements set forth in the Prospectus under the captions
"Description of Preferred Stock We May Offer" and the "Description of Depositary
Shares We May Offer", insofar as they purport to constitute a summary of the
terms of the Shares therein described, and, subject to the limitations set forth
therein, under the caption "United States Taxation", and under the captions
"Plan of Distribution" and "Underwriting" insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(k) Other than as set forth in the Prospectus, 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 Company or any of its
subsidiaries is a party, or of which any property of the Company or any of its
subsidiaries is the subject, 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 current or future consolidated financial
position, shareholders' equity or results of operations of 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;
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(l) The Company is not and, after giving effect to each offering and
sale of the Shares will not 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");
(m) Immediately after any sale of Shares by the Company hereunder or
under any Pricing Agreement, the aggregate amount of Shares which shall have
been issued and sold by the Company hereunder or under any Pricing Agreement and
of any debt securities of the Company (other than such securities) that shall
have been issued and sold pursuant to the registration statement will not exceed
the amount of debt securities registered under the registration statement; and
(n) (A) 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; and (B)
Ernst & Young LLP, who have certified certain financial statements of former
USF&G Corporation and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented. The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing
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Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares 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 or later than the respective number of
business days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to be
purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. The Firm Shares and the Optional Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form to the extent practicable, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least forty-eight
hours in advance; (i) with respect to Firm Shares, all in the manner and at the
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "First Time of Delivery" and
(ii) with respect to the
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Optional Shares, if any, in the manner and at the time and date as the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Designated Shares 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 the Pricing Agreement relating to the applicable
Designated Shares or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Shares and prior to the Time of Delivery for such
Shares which shall be disapproved by the Representatives for such Shares
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 Shares, 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 Shares, of the suspension of the qualification of such Shares or the shares
of Stock, if any, issuable upon conversion of the Shares, for offering
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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 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
Shares 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 Shares or the shares of
Stock, if any, issuable upon conversion of the Shares, for offering and sale
under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Shares, provided that in connection therewith
the Company shall not 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 Shares or the shares of
Stock, if any, issuable upon conversion of the Shares, 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
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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 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) During the period beginning from the date of the Pricing Agreement
for such Designated Shares and continuing to and including the earlier of (i)
the termination of trading restrictions for such Designated Shares, as notified
to the Company by the Representatives and (ii) the Time of Delivery for such
Designated Shares, not to offer, sell, contract to sell or otherwise dispose of
any securities of the Company [that are substantially similar to the Designated
Shares, including but not limited to any securities that are convertible into
exchangeable for, or that represent the right to receive Stock or any such
substantially similar securities,] without the prior written consent of the
Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company 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.
6. The Company covenants and agrees with the several Underwriters that
the Company 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 Shares or the shares of Stock, if any,
issuable upon conversion of the Shares, under the Act and all other expenses in
connection with the preparation, printing and filing of the
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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; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, the Deposit Agreement, 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 Shares; (iii)
all expenses in connection with the qualification of the Shares or the shares of
Stock issuable upon conversion of the Shares, 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 Shares; (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 Shares; (vi) the
cost of preparing the Shares; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with listing the Shares and the Stock; (viii) [the cost of
preparing certificates for the Shares; and (ix) the cost and charges of any
transfer agent or registrar or dividend disbursing agent and] (x) 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
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement relating to such Designated Shares shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Company in or incorporated by
reference in the Pricing Agreement relating to such Designated Shares are, at
and as
-15-
of the Time of Delivery for such Designated Shares, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Shares 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 has 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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the Representatives
such written opinion or opinions, dated the Time of Delivery for such Designated
Shares, with respect to the incorporation of the Company, the validity of the
Designated Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus as amended or supplemented 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;
(c) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior Vice President for the Company, or
other counsel for the Company acceptable to the Representatives, shall have
furnished to the Representatives his written opinion, dated the Time of Delivery
for such Designated Shares, 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;
-16-
(ii) The Company has an authorized share capital as set forth
in the Prospectus as amended or supplemented 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. ▇▇▇▇ Fire and Marine Insurance
Company, United States Fidelity and Guaranty Company and approximately
78% of the issued shares of the capital stock of The ▇▇▇▇ Nuveen
Company have been duly authorized and validly issued, are fully paid
and non-assessable, and (except as disclosed in the Registration
Statement) 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);
-17-
(v) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus 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 and the Pricing Agreement with respect to
the Designated Shares have been duly authorized, executed and delivered
by the Company;
(vii) The issue and sale of the Designated Shares being
delivered at such Time of Delivery, the compliance by the Company with
all of the provisions of the Designated Shares, this Agreement, the
Deposit Agreement and the Pricing Agreement with respect to the
Designated Shares 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, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any of
its subsidiaries pursuant to the terms of, 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
-18-
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the Restated Articles of Incorporation, as
amended, or By-laws, as amended, of the Company or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties;
(viii) 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 Designated
Shares being delivered at such Time of Delivery or the consummation by
the Company of the transactions contemplated by this Agreement, the
Deposit Agreement or any applicable Pricing Agreement, except such as
have been obtained under the 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 Designated Shares or the shares of Stock
issuable upon conversion of the Shares by the Underwriters;
(ix) 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;
(x) The statements set forth in the Prospectus under the
captions "Description of Preferred Stock We May Offer" and the
"Description of Depositary Shares We May Offer", insofar as they
purport to constitute a summary of the terms of the Shares therein
described, and, subject to the limitations set forth therein, under the
caption "United States Taxation", and under the captions "Plan of
Distribution" and "Underwriting" insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xi) The Company is not and, after giving effect to each
offering and sale of the Designated Shares will not be, an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
-19-
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (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
(xiii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the date of such opinion for the
Designated Shares (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 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 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 as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no
-20-
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 as amended or supplemented or any further amendment
or supplement thereto made by the Company 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 as
amended or supplemented 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 ▇▇▇▇ Nuveen Company, such
counsel may cause ▇▇▇▇ ▇. Berkshire, Vice President and General Counsel
to The ▇▇▇▇ Nuveen Company, to deliver an opinion as to such matters,
dated the Time of Delivery for such Designated Shares.
-21-
(d) On the date of the Pricing Agreement for such Designated Shares and
at the Time of Delivery for such Designated Shares, 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;
(e) (i) Neither 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 as amended prior to the
date of the Pricing Agreement relating to the Designated Shares any 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, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Shares, and (ii) since the respective dates
as of which information is given in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Shares there shall not have
been any change in the capital stock or long-term debt of 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
-22-
amended or supplemented prior to the date of the Pricing Agreement relative to
the Designated Shares, 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 Designated Shares on the terms and in the manner
contemplated in the Prospectus as first amended relating to the Designated
Shares;
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (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 as amended or
supplemented, 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;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or a material disruption in the commercial banking or
securities settlement or clearance services in the United States; or (iv) 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
-23-
offering or the delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to the
Designated Shares;
(h) [The Shares at each Time of Delivery shall have been duly listed,
subject to notice of issuance, on the [New York] Stock Exchange; and]
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Shares a certificate
or certificates of officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company herein
at and as of such Time of Delivery, as to the performance by the Company 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 (f) of this Section
and as to such other matters as the Representatives may reasonably request.
8. (a) The Company 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
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, 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 the Company shall
not 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
-24-
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Shares
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares; and provided, further, that the Company
shall not 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 Shares 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
against any losses, claims, damages or liabilities to which the Company 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 prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares, 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
-25-
to the Shares, 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 for any legal or other expenses reasonably incurred by the Company 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 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.
-26-
(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
of the Designated Shares on the other from the offering of the Designated Shares
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 on the one hand and the Underwriters
of the Designated Shares 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 on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company 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 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
-27-
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 Designated Shares 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 Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the 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 within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase under the
Pricing Agreement relating to such Designated Shares, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Firm Shares or Optional Shares, as the case may be, on the terms
contained herein. If within thirty-six hours after such default by any
-28-
Underwriter the Representatives do not arrange for the purchase of such
Designated Shares, 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 Designated Shares 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 Designated Shares, or the Company notifies the Representatives that it
has so arranged for the purchase of such Designated Shares, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Shares 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 agrees 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 the Pricing
Agreement with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Designated Shares which
remains unpurchased does not exceed one-tenth of the aggregate principal amount
of the Designated Shares, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated Shares
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Shares and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Designated Shares which such Underwriter agreed to purchase under such Pricing
Agreement) of the Designated Shares 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.
-29-
(c) If, after giving effect to any arrangements for the purchase of
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Designated Shares which
remains unpurchased exceeds one-tenth of the aggregate principal amount of the
Designated Shares, 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 Designated Shares of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Shares shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company 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 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, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Firm Shares or Optional Shares covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason such Designated Shares are not delivered by or on behalf of the
Company as provided herein, the Company 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 Designated Shares, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Shares
except as provided in Section 6 and Section 8 hereof.
-30-
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Shares 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 the Pricing 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 as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 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 by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company 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 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 or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
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15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing 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 four counterparts hereof.
Very truly yours,
THE ST. ▇▇▇▇ COMPANIES, INC.
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
[UNDERWRITERS]
BY: [REPRESENTATIVE]
By:
-----------------------------
Name:
Title:
On behalf of each of the Underwriters
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ANNEX I
PRICING AGREEMENT
[UNDERWRITERS]
As Representatives of the several
Underwriters named in Schedule I hereto,
[ADDRESS]
[DATE]
Ladies and Gentlemen:
The St. ▇▇▇▇ Companies, Inc., a Minnesota corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated [ ], 200[ ] (the "Underwriting Agreement"),
between the Company on the one hand and [UNDERWRITERS] on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares") consisting of Firm Shares and any Optional Shares the Underwriters may
elect to purchase, [which are represented by depositary shares (the "Depositary
Shares") deposited against delivery of Depositary Receipts (the "Depositary
Receipts") evidencing the Depositary Shares which are to be issued by the
depositary (the "Depositary"), under the Deposit Agreement, dated the date
specified in Schedule II to this Agreement, among the Company, the Depositary
and the holders from time to time of the Depositary Receipts issued hereunder.
Each Depositary Share represents beneficial ownership of the fraction of a share
of Preferred Stock, as specified in this Agreement]. Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the
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Prospectus as amended or supplemented relating to the Designated Shares which
are the subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Shares pursuant to Section
12 of the Underwriting Agreement and the address of the Representatives referred
to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto and,[(b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Shares, as provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Shares as to which
such election shall have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering overallotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company
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given within a period of 30 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
the Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof [(one for the issuer and each of the
Representatives plus one for each Counsel)], and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
THE ST. ▇▇▇▇ COMPANIES, INC.
By:
-----------------------------
Name:
Title:
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Accepted as of the date hereof:
[UNDERWRITERS]
BY:
By:
---------------------------------
Name:
Title:
On behalf of each of the Underwriters
-4-
SCHEDULE I
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
FIRM OPTIONAL
SHARES SHARES
TO BE TO BE
UNDERWRITER PURCHASED PURCHASED
----------- --------- ---------
[UNDERWRITER] .......................... $ $
[UNDERWRITER] ..........................
[UNDERWRITER] ..........................
Total .......................
--------- ---------
$ $
========= =========
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SCHEDULE II
TITLE OF DESIGNATED SHARES:
[DEPOSITARY SHARES]
[Depositary] Deposit Agreement, dated [ ], 200[ ] Each Depositary
Share represents [ ]shares of [Title of Securities] Convertible
into [ ] shares of Stock
NUMBER OF DESIGNATED SHARES:
NUMBER OF FIRM SHARES:
MAXIMUM NUMBER OF OPTIONAL SHARES:
INITIAL OFFERING PRICE TO PUBLIC:
[$[ ] per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$[ ] per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$[ ] per Share in [specify same form of funds as in Specified Funds
below]]
FORM OF DESIGNATED SHARES:
[Definitive form, to be made available for checking [and packaging] at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
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SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal (same day)] funds
[Describe any blackout provisions with respect to the Designated
Shares]
TIME OF DELIVERY:
[ ] a.m. (
New York City time),[ ], 200[ ]
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
DESIGNATED REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[Other Terms]
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