S&C Draft of October 28, 2001
THE SAINT XXXX COMPANIES, INC.
[ ]% TRUST PREFERRED SECURITIES ("TRUPS")
($[ ] STATED LIQUIDATION AMOUNT PER TRUPS)
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UNDERWRITING AGREEMENT
[ ], 20001
Xxxxxxx Xxxxx Xxxxxx
As representatives of the several Underwriters
named in Schedule 1 hereto,
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The St. Xxxx Companies, Inc. (the "Company"), a Minnesota
corporation, and St. Xxxx Capital Trust I (the "Trust"), a statutory business
trust created under the Business Trust Act of the State of Delaware (the
"Delaware Business Trust Act") propose that the Trust issue and sell to the
firms named in SCHEDULE 1 hereto (such firms constituting the "Underwriters")
its [ ]% Trust Preferred Securities, "TRUPS" (the "Firm Securities"),
representing undivided preferred beneficial interests in the assets of the
Trust, which will be guaranteed by the Company (the "Guarantee") as to the
payment of distributions, and as to payments on liquidation or redemption, to
the extent that the Trust has funds on hand legally available therefor, as set
forth in a Preferred Securities Guarantee Agreement (the "Guarantee Agreement")
between the Company and The Chase Manhattan Bank, as trustee (the "Guarantee
Trustee"). In addition, subject to the terms and conditions herein, the Company
and the Trust propose to grant the Underwriters
an option to purchase up to [ ] additional TRUPS (the "Optional Securities").
The Firm Securities and the Optional Securities are herein called the
"Securities".
The proceeds of the sale of the Securities and the common
securities of the Trust (the "Common Trust Securities" and, together with the
TRUPS, the "Trust Securities") to be sold by the Trust to the Company are to be
invested in [ ]% Junior Subordinated Debentures Due 2050 (the "Debentures") of
the Company to be issued pursuant to an Indenture (the "Indenture") between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"). The Trust
Securities will be issued pursuant to, and governed by the Amended and Restated
Declaration of Trust, dated as of [ ], 2001 (the "Declaration") among the
Company, Chase Manhattan Bank USA, National Association, as the Delaware Trustee
(the "Delaware Trustee") and the institutional trustee and the regular trustees
named therein. The Declaration, the Indenture and the Guarantee Agreement will
be qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
1. The Company and the Trust, jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-[ ](the
"Initial Registration Statement") in respect of the Securities, the Debentures
and the Guarantee has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus included in the latest registration statement, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which
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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 Statements or filed with the
Commission pursuant to Rule 424(a) under the Securities Act of 1933, as amended
(the "Act"), is hereinafter called a "Preliminary Prospectus"); the various
parts of the Initial Registration Statements, any post-effective amendment
thereto, and the Rule 462(b) Registration Statements, if any, including all
exhibits thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement, at the time such part of the
Initial Registration Statements became effective but excluding Form T-l, each as
amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, are hereinafter called the "Registration
Statement"; the prospectus relating to the Securities, in the form in which it
has most recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by
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reference in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statements shall be
deemed to refer to and include any annual report of the Company filed pursuant
to Sections 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as amended
or supplemented in relation to the applicable Designated Securities to be sold
pursuant to this Agreement, in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance with Section
5(a) hereof (including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to the Securities;
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(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to the Securities;
(d) Neither the Trust, the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any direct loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, which is material to the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
or long-term debt of the Trust or the Company and its subsidiaries taken as a
whole (other than any decrease in the capital stock resulting from purchases by
the Company under its Stock Repurchase Program and any increase resulting from
the exercise of stock options or the issuance of restricted shares under the
Company's stock incentive and employee compensation plans, or the conversion of
Series B Convertible Preferred Stock and Series C Convertible Preferred Stock)
or any material adverse change, or any development involving a prospective
material adverse change, in or
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affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Trust and the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus;
(e) The Trust has been duly formed and is validly existing as
a statutory business trust in good standing under the Delaware Business Trust
Act with the power and authority (trust and other) to enter into this Agreement,
to own property and to conduct its business as described in the Prospectus, and
has conducted and will conduct no business other than the transactions
contemplated by this Agreement and the Declaration and as described in the
Prospectus, as amended or supplemented; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Declaration, and the
agreements and instruments contemplated by the Declaration and described in the
Prospectus as amended or supplemented; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated by
this Agreement and the Declaration and described in the Prospectus as amended or
supplemented; based on expected operations and current law, the Trust is not and
will not be classified as an association taxable as a corporation for United
States federal income tax purposes; the Trust is not a party to or subject to
any action, suit or proceeding of any nature;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Minnesota, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, and is not subject to any material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and each of
the Company's principal subsidiaries (hereinafter called "Principal
Subsidiaries"), namely St. Xxxx Fire and Marine Insurance Company, United States
Fidelity and Guaranty Company and The Xxxx Xxxxxx Company, has been
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duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; all of the issued shares of capital stock of each of St. Xxxx
Fire and Marine Insurance Company, United States Fidelity and Guaranty Company
and The Xxxx Xxxxxx Company held directly or indirectly by the Company have been
duly authorized and validly issued, are fully paid and non- assessable; (except
as disclosed in the Registration Statement) all shares of the capital stock of
such subsidiaries are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims; and all of the outstanding
beneficial interests in the assets of the Trust have been duly authorized and
issued, are fully-paid and non-assessable and conform to the description thereof
contained in the Prospectus;
(h) The Securities have been duly and validly authorized by
the Trust, and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will conform to
the description thereof contained in the Prospectus; the issuance of the
Securities is not subject to preemptive or other similar rights; the Securities
will have the rights set forth in the Declaration; the holders of the Securities
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware;
(i) The Common Trust Securities have been duly and validly
authorized by the Company and upon delivery
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at each Time of Delivery (as defined herein) by the Trust to the Company against
payment therefor as described in the Prospectus, will be duly and validly issued
and fully paid and non-assessable undivided beneficial interests in the assets
of the Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Trust Securities is not subject to
preemptive or other similar rights; at each Time of Delivery, all of the issued
and outstanding Common Trust Securities of the Trust will be directly owned by
the Company free and clear of all liens, encumbrances, security interests,
equities or claims; the Common Trust Securities will have the rights set forth
in the Declaration; and the Trust Securities are the only interests authorized
to be issued by the Trust;
(j) The Debentures have been duly authorized by the
Company, and, when the Debentures are issued and delivered pursuant to this
Agreement, they will be duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration Statement;
the Indenture has been duly authorized and, when validly executed and
delivered by the Company and the Trustee, and when duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery for the
Firm Securities (as defined in Section 3 hereof), will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; the Guarantee Agreement and the
Declaration have each been duly authorized and each, when validly executed
and delivered by the Company and (i) in the case of the Guarantee Agreement,
by the Guarantee Trustee and (ii) in the case of the Declaration, by the
Institutional Trustee and the Delaware Trustee, will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the
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Indenture, the Guarantee Agreement and the Declaration conform, and the
Debentures will conform, to the descriptions thereof contained in the
Prospectus;
(k) The issue and sale of the Debentures underlying the Trust
Securities by the Company, the compliance by the Company with all of the
provisions of this Agreement, the Guarantee Agreement, its Declaration and the
Indenture, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Restated Articles of Incorporation, as
amended, or the By-laws, as amended, of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Debentures underlying the Trust
Securities by the Company, or the consummation by the Company of the
transactions contemplated by this Agreement, the Indenture, the Guarantee
Agreement and the Declaration, except such as have been, or will have been prior
to the Time of Delivery, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(l) The issue and sale of the Securities by the Trust, the
purchase of the Debentures underlying the Trust Securities by the Trust, the
compliance by Trust with all of the provisions of this Agreement and the
Declaration, and the consummation of the transactions herein and therein
contemplated will not conflict with or
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result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trust is a party or by
which the Trust is bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of the provisions of
the Declaration or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Trust Securities by the Trust, the
purchase of the Debentures underlying such Trust Securities by the Trust or the
consummation by the Trust of the transactions contemplated by this Agreement and
the Declaration, except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(m) The Trust is not in violation of the Declaration, and as
of each Time of Delivery, will not be in violation of the Declaration; neither
the Company nor any of its subsidiaries is in violation of its organizational
documents; and neither the Trust nor the Company or any of its subsidiaries is
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties is or may be bound;
(n) The statements set forth in the Prospectus
under the captions "Description of the Preferred Securities", "Description of
the Junior Subordinated Debentures" and "Description of the Guarantee", insofar
as they purport to constitute a summary of the terms of the securities therein
described, and, subject to the limitations set forth therein, under the caption
"Certain
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Federal Income Tax Consequences", and under the caption "Underwriting" insofar
as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(o) Other than as set forth in the Prospectus, and other than
litigation (none of which is reasonably likely to be material) incidental to the
kinds of business conducted by the Company and its subsidiaries, there are no
legal or governmental proceedings pending to which the Trust, the Company or any
of its subsidiaries is a party, or of which any property of the Trust, the
Company or any of its subsidiaries is the subject, which, if determined
adversely to the Trust, the Company or any of its subsidiaries, would
individually or in the aggregate (after giving effect to any applicable
insurance, reinsurance or reserves therefor) have a material adverse effect on
the current or future consolidated financial position, shareholders' equity or
results of operations of the Trust or the Company and its subsidiaries, taken as
a whole; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(p) Neither the Company nor the Trust is and, after giving
effect to each offering and sale of the Securities neither the Company nor the
Trust will be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(q) Immediately after any sale of Securities by the Trust
hereunder, the aggregate amount of Securities which shall have been issued and
sold by the Trust hereunder that shall have been issued and sold pursuant to the
Registration Statement will not exceed the aggregate stated liquidation amount
of trust securities registered under the Registration Statement; and
(r) (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
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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.
2. Subject to the terms and conditions herein set forth, (a) the
Company and the Trust agree that the Trust will sell to each of the
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Trust, at a purchase price of $[ ] per Firm Security, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule 1 hereto, and (b) in the event and to the extent that the Underwriters
shall exercise their election to purchase Optional Securities as provided in the
paragraph below, the Company and the Trust agree that the Trust will sell to
each of the Underwriters and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust at the purchase price set forth in clause
(a) of this paragraph, a number of Optional Securities (to be adjusted by you to
eliminate fractional TRUPS) determined by multiplying such number of Optional
Securities by a fraction, the numerator of which is the maximum number of
Optional Securities set forth opposite the name of such Underwriter in SCHEDULE
1 hereto and the denominator of which is the maximum number of Optional
Securities set forth in total opposite the names of all such Underwriters in
SCHEDULE 1 hereto.
The Company and the Trust, as and to the extent indicated in
SCHEDULE 1 hereto, hereby grant, severally and not jointly, to the Underwriters
the right to purchase at their election up to [ ] Optional Securities, at
the purchase price per TRUPS set forth in clause (a) of the paragraph above, for
the sole purpose of covering overallotments in the sale of Firm Securities. Any
such election to purchase Optional Shares may be exercised only by written
notice from Xxxxxxx Xxxxx Xxxxxx to the Company and the Trust, given within a
period of 30 calendar days after the date of this Agreement and setting forth
the aggregate number of Optional Securities to be purchased and the date on
which such Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier
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than the First Time of Delivery (as defined in Section 4 hereof) or, unless
Xxxxxxx Xxxxx Xxxxxx and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
As compensation to the Underwriters for their commitments
hereunder, the Company and the Trust agree that the Trust shall at each Time of
Delivery (as defined in Section 4 hereof) will pay to Xxxxxxx Xxxxx Xxxxxx, for
the accounts of the several Underwriters, an amount equal to $ per TRUPS
for the Securities to be delivered by the Trust hereunder at such Time of
Delivery.
3. Upon the authorization by the Representatives of the release
of the Firm Securities, the several Underwriters propose to offer such Firm
Securities for sale upon the terms and conditions set forth in the Prospectus.
4. The Securities to be purchased by each Underwriter
hereunder shall be delivered by or on behalf of the Trust to Xxxxxxx Xxxxx
Xxxxxx, through the facilities of The Depository Trust Company ("DTC") or its
designated custodian for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Trust.
The Trust will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (defined below) with respect thereto at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery shall be, for the Firm Shares [ ], 2001, 9:30 a.m. New York
City time or such other time that Xxxxxxx Xxxxx Xxxxxx and the Company may
agree upon in writing, and with respect to the Optional Shares, [ ],
2001, 9:30 a.m. New York City time, on the date specified by Xxxxxxx Xxxxx
Xxxxxx in the written notice given by Xxxxxxx Xxxxx Xxxxxx of the
Underwriters' election to purchase such Optional Securities, or such other
time and date as Xxxxxxx Xxxxx Xxxxxx, the Company and the Trust may agree
upon in writing. Such time and date for delivery of the Firm Shares is herein
called the "First
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Time of Delivery", such time and date for the delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
At each Time of Delivery, the Trust or the Company will pay,
or cause to be paid, the commission payable at such Time of Delivery to the
Underwriters under Section 2 hereof by wire transfer of Federal (same-day) funds
to the account specified by Xxxxxxx Xxxxx Xxxxxx.
5. The Company and the Trust, jointly and severally,
agree with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3); to make no further amendment
or any supplement to the Registration Statement or Prospectus prior to the last
Time of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension
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of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for offering
and sale under the securities 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 Securities, provided that in connection
therewith neither the Company nor the Trust shall be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each Underwriter
and to any
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dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders 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); and
(e) During the period beginning from the date of this
Agreement and continuing to and including the date six months after the date of
the Prospectus, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any TRUPS or junior subordinated debentures, or
securities of the Company or the Trust or a trust similar to the Trust that are
substantially similar to the Securities or the Debentures, without the prior
written consent of the Representatives;
(f) If the Company and the Trust elect to rely upon Rule
462(b), the Company and the Trust shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act;
(g) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(h) To use their best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange (the "Exchange"); and
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(i) Not to invest, reinvest or otherwise use the proceeds
received by the Trust and the Company in such a manner, or take any action, or
omit to take any action, that would cause the Company or the Trust to become an
"investment company" as that term is defined in the Investment Company Act.
6. The Company and the Trust, jointly and severally, covenant and
agree with the several Underwriters that the Company or the Trust will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents (including compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) all fees and expenses in connection with listing any of the
Securities on the Exchange and the cost of registering the Securities under the
Act(vii) the cost of preparing the Securities and the Debentures; (viii) the
fees and expenses of the Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with the Indenture and
the Securities; (ix) the cost and charges of any transfer agent or registrar;
(x) the cost
-17-
and charges of DTC; and (xi) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder as to the
Securities to be delivered at each Time of Delivery shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company and the Trust herein are, at and
as of such Time of Delivery, true and correct, the condition that the Company
and the Trust shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company and the Trust have elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
the Securities, with respect to the incorporation of the Company, the validity
of the Indenture, the Securities, the Debentures, the Registration Statement,
the Prospectus and other related matters as the Representatives may reasonably
request,
-18-
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; provided that in
respect of certain matters of Delaware law, such counsel shall be entitled to
rely upon an opinion or opinions of Xxxxxxxx, Xxxxxx & Xxxxxx, Wilmington,
Delaware; provided further that in respect of certain matters of Minnesota law,
such counsel shall be entitled to rely upon an opinion or opinions of Xxxxx X.
Xxxxxxxx, Esq.;
(c) Xxxxx X. Xxxxxxxx, Esq., Senior Vice President for the
Company, or other counsel for the Company and the Trust acceptable to the
Representatives, shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for the Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Minnesota, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized share capital as
set forth in the Prospectus and all of the issued shares of
capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in which, in
such counsel's opinion, the Company is required to be so
qualified or if the Company is not so qualified in any such
state or jurisdiction, the failure to so qualify would not,
considering all cases in the aggregate, involve a material
risk to the business, properties, financial position or
results of operation of the Company and its subsidiaries,
taken as a whole;
-19-
(iv) Each of the Principal Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
all of the issued shares of capital stock of each of St. Xxxx
Fire and Marine Insurance Company, United States Fidelity and
Guaranty Company and The Xxxx Xxxxxx 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 (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions
of local counsel and in respect of matters of fact upon
certificates of officers of the Company or the Principal
Subsidiaries, provided that such counsel shall state that he
believes that both the Representatives and he are justified in
relying upon such opinions and certificates);
(v) To such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Trust, the
Company or any of its subsidiaries is a party or of which any
property of the Trust, the Company or any of its subsidiaries
is the subject, other than as set forth in the Prospectus, as
amended or supplemented and other than litigation or
proceedings (none of which is reasonably likely to be
material) incident to the kinds of business conducted by the
Trust, the Company and its subsidiaries, which, if determined
adversely to the Trust, the Company or any of its
subsidiaries, would individually or in the aggregate (after
giving effect to any applicable insurance, reinsurance or
reserves therefor) have a material adverse effect on the
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries,
taken as a whole; and, to
-20-
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and the Trust;
(vii) To such counsel's knowledge, the Trust is not a
party to or bound by any agreement or instrument other than
this Agreement, the Declaration, and the agreements and
instruments contemplated by the Declaration and described in
the Prospectus as amended or supplemented; to such counsel's
knowledge, the Trust has no liabilities or obligations other
than those arising out of the transactions contemplated by
this Agreement and the Declaration and described in the
Prospectus as amended or supplemented; to the best of such
counsel's knowledge, there are no legal or governmental
proceedings pending to which the Trust is a party or of which
any property of the Trust is the subject and no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; based on expected
operations and current law, the Trust is not and will not be
classified as an association taxable as a corporation for
United States federal income tax purposes;
(viii) The Common Trust Securities conform to the
description thereof contained in the Prospectus as amended or
supplemented; and to such counsel's knowledge, all of the
issued and outstanding Common Trust Securities of the Trust
are directly owned by the Company free and clear of all liens,
encumbrances, security interests, equities or claims;
(ix) Each of the Guarantee Agreement, the Indenture
and the Debentures has been duly authorized and constitutes a
valid and legally binding obligation of the Company,
enforceable
-21-
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles (whether such principles are
considered in a proceeding in equity or in law); the
Declaration, the Indenture and the Guarantee Agreement have
been duly qualified under the Trust Indenture Act; the
Debentures are entitled to the benefits of the Indenture; and
the Guarantee Agreement, the Declaration, the Indenture and
the Debentures conform to the descriptions thereof in the
Prospectus, as amended or supplemented;
(x) The issue and sale of the Securities and the
Common Trust Securities by the Trust, the issue and sale of
the Debentures underlying such Trust Securities by the
Company, the compliance by the Company and the Trust, as
applicable, with all of the provisions of this Agreement, the
Guarantee Agreement, the Declaration and the Indenture and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the
Restated Articles of Incorporation or by-laws of the Company
or the articles of incorporation or by-laws of any of its
subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court, insurance regulatory
authority or other governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
-22-
any of their properties; no consent of or with any court or
governmental agency or body is required for the issue and sale
of the Securities and the Common Trust Securities by the
Trust, the issue and sale of the Debentures underlying such
Trust Securities by the Company, the compliance by the Company
and the Trust, as applicable, with all of the provisions of
this Agreement, the Guarantee Agreement, the Declaration or
the Indenture or the consummation of the transactions herein
or therein contemplated, except for (A) the registration under
the Act of the Securities, the Debentures and the Guarantee,
(B) the approval and registration of the Securities with the
Exchange, which has been obtained, (C) such as have been
obtained under the Trust Indenture Act and (D) such consents
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters;
(xi) The issue and sale of the Securities by the
Trust, the purchase of the Debentures underlying the Trust
Securities by the Trust, the compliance by the Trust with all
of the provisions of the Declaration and this Agreement, and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Trust is a party or by which the Trust is
bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of
the provisions of the Declaration or any statute or any order,
rule or regulation known to such counsel of any court,
insurance regulatory authority, if applicable, or other
governmental agency or body having jurisdiction over the Trust
or any of its properties; and no consent of or with any such
court, insurance regulatory authority or other
-23-
governmental agency or body is required for the issue and sale
of the Securities and the Common Trust Securities by the
Trust, the purchase of the Debentures underlying such Trust
Securities by the Trust or the consummation by the Trust of
the transactions contemplated by this Agreement or the
Declaration, except (A) the registration under the Act of the
Securities, the Debentures and the Guarantee, (B) the approval
and registration of the Securities with the Exchange, which
has been obtained, (C) such as have been obtained under the
Trust Indenture Act and (D) such consents as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(xii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(xiii) 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;
(xiv) The statements set forth in the Prospectus
under the captions "Description of the Preferred Securities",
"Description of the
-24-
Junior Subordinated Debentures" and "Description of the
Guarantee", insofar as they purport to constitute a summary of
the terms of the securities therein described, and, subject to
the limitations set forth therein, under the caption "Certain
Federal Income Tax Consequences", and under the caption
"Underwriting" insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xv) Neither the Company nor the Trust is and, after
giving effect to each offering and sale of the Securities will
be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xvi) The documents incorporated by reference in the
Prospectus(other than the financial statements and related
schedules therein and Form T-1, 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
-25-
which they were made when such documents were so filed, not
misleading; and
(xvii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company and the Trust prior to the date of such opinion for
the Securities (other than the financial statements and
related schedules therein and Form T-1, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder;
such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company and the Trust prior to
the date of such opinion (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company
and the Trust prior to the date of such opinion (other than
the financial statements and related schedules therein and
Form T-1, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading or that, as of the date of such opinion,
either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company
and the Trust prior to the date of such opinion (other than
the financial statements and related schedules therein and
Form T-1, 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
-26-
circumstances in which they were made, not misleading; and
such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
PROVIDED that in lieu of the delivery of the opinion set forth
in paragraph (iv) of this Section 7(c) as to The Xxxx Xxxxxx
Company, such counsel may cause [XXXX X. BERKSHIRE, VICE
PRESIDENT AND GENERAL COUNSEL] to The Xxxx Xxxxxx Company, to
deliver an opinion as to such matters, dated the Time of
Delivery for such Securities.
(d) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the
Trust, shall have furnished to the Representatives their written opinion, dated
such Time of Delivery, in form and substance satisfactory to you to the effect
that:
(i) The Trust has been duly formed and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act.
(ii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees parties thereto
(the "Declaration Trustees"), enforceable against the Company
and the Declaration Trustees in accordance with its terms, and
the terms of the Trust Securities, to the extent they are
obligations of the Trust, are valid and binding obligations of
the Trust in accordance with the terms of the Declaration,
subject to the effect of (A) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws
-27-
relating to or affecting the rights and remedies of creditors
generally, (B) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at a law), and (C)
applicable public policy with respect to provisions relating
to indemnification or contribution.
(iii) Under the Delaware Business Trust Act and the
Declaration, (A) the Trust has the requisite trust power and
authority (x) to own its properties and conduct its business,
all as described under the captions "St. Xxxx Capital Trust I"
in the Prospectus, (y) to issue and perform its obligations
under the Securities, and (z) to execute and deliver, and
perform its obligations under this Agreement, and (B) the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations hereunder, have
been duly authorized by all requisite trust action on the part
of the Trust. This Agreement has been duly executed and
delivered by the Trust.
(iv) The Securities have been duly authorized by the
Declaration and are duly and validly issued and, subject to
the qualifications set forth in this paragraph (iv), fully
paid and nonassessable undivided beneficial interests in the
assets of the Trust. The holders of the Securities as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may
note that the holders of the Securities may be obligated,
pursuant to the Declaration, to make payments and provide
indemnity and security as set forth in the Declaration.
(v) The Common Trust Securities have been duly
authorized by the Declaration and are
-28-
validly issued and represent undivided beneficial interests in
the assets of the Trust.
(vi) Under the Declaration and the Delaware Business
Trust Act, (A) the issuance of the Securities is not subject
to preemptive rights to subscribe for additional Securities or
Common Trust Securities, and (B) the Securities are the only
interests in the assets of the Trust authorized to be issued
by the Trust.
(vii) The issuance and sale by the Trust of the
Securities in accordance with the Declaration, the execution,
delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated by
the Declaration, the Securities and this Agreement, and the
compliance by the Trust with its obligations hereunder and
thereunder are not prohibited by (A) the Trust's certificate
of trust or the Declaration, or (B) any applicable Delaware
statute or administrative regulation.
(viii) No authorization, approval, consent or order
of any Delaware governmental authority or Delaware agency is
required to be obtained, and no filing or registration with
any Delaware governmental authority or Delaware agency is
required to be made, by the Trust solely in connection with
the issuance and sale by the Trust of the Securities.
(e) Xxxxxxxx & Xxxxxxxx, special tax counsel for the Company
and the Underwriters, shall have furnished to the Representatives their written
opinion, dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that the discussion set forth in the Prospectus under the heading
"Certain Federal Income Tax Consequences", insofar as it relates to matters of
United States federal income tax law, is accurate in all material respects.
(f) On the date of this Agreement and at the Time of Delivery
for such the Securities, the independent
-29-
accountants of the Company who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a letter,
dated the effective date of the Registration Statement or the date of the most
recent report filed with the Commission containing financial statements and
incorporated by reference in the Registration Statement, if the date of such
report is later than such effective date, and a letter dated such Time of
Delivery, respectively, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives;
(g) (i) Neither the Trust, the Company nor any of its
Principal Subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in
the capital stock or long-term debt of the Trust, the Company and its
subsidiaries taken as a whole (other than any decrease in the capital stock
resulting from purchases under the Company's Stock Repurchase Program and any
increase in the capital stock resulting from the exercise of stock options or
the issuance of restricted shares under the Company's stock incentive and
employee compensation plans, or the conversion of Series B Convertible Preferred
Stock and Series C Convertible Preferred Stock) or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented prior to such Time
of Delivery, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it
-30-
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus
as amended or supplemented;
(h) On or after the date of this Agreement (i) no downgrading
shall have occurred in the rating accorded the Company's debt securities or the
Company's financial strength or claims paying ability by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such
organization shall have publicly announced or otherwise given notice to the
Company that it has under surveillance, review or watch, with possible negative
implications, its rating of any of the Company's debt securities or the
Company's financial strength or claims paying ability, or of any review for a
possible change therein that does not indicate the direction of the possible
change;
(i) On or after the date of this Agreement there shall not
have occurred any of the following: (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 or the Trust'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 (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war if the effect of any such event specified in this clause (iv)
in the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus as amended or supplemented;
(j) The Company and the Trust shall have each furnished or
caused to be furnished to the Representatives at the Time of Delivery for the
Securities a certificate or certificates of officers of the Company and the
Trust satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company and the Trust, as the case may be,
herein at and as of such Time of Delivery, as to the performance by the Company
and the Trust, as the case
-31-
may be, of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (g) of this
Section and as to such other matters as the Representatives may reasonably
request; and
(k) The Securities shall have been duly listed, subject to
notice of issuance of the Exchange.
8. (a) Each of the Company and the Trust, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the Securities,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that
neither the Company nor the Trust shall be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Prospectus relating to such Securities; and PROVIDED, FURTHER, that neither the
Company nor the Trust shall be liable to any Underwriter
-32-
under the indemnity agreement in this subsection (a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was corrected in the Prospectus (or the Prospectus
as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or liabilities to
which the Company and the Trust may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and the Trust for any legal or other expenses reasonably
incurred by the Company or the
-33-
Trust in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified 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.
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(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Trust on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Trust on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company and the Trust bear
to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Trust and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose)
-35-
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company and the Trust under this
Section 8 shall be in addition to any liability which the Company and the Trust
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company and the Trust
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase under this Agreement,
the Representatives may in their discretion arrange for themselves or another
-36-
party or other parties to purchase such Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Securities for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company and the Trust agree to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Securities which such
Underwriter agreed to purchase under this Agreement and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Securities which such Underwriter agreed to purchase under
the Agreement) of the Securities of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
-37-
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligation of
the Underwriters to purchase and Company and the Trust to sell the Optional
Securities) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Company or the Trust, except for the expenses to
be borne by the Company, the Trust and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Trust and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, the Company or the Trust, or any officer or director or controlling
person of the Company or the Trust, and shall survive delivery of and payment
for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Trust shall then be under any liability to
any Underwriter with respect to the Securities covered by this Agreement except
as provided in Section 6 and Section 8 hereof; but, if for any other reason
Securities are not delivered by or on behalf of the Company and the Trust as
provided herein, the Company and the Trust, jointly and severally, will
reimburse the Underwriters through the
-38-
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Securities, but neither the Company nor the Trust shall then be
under further liability to any Underwriter with respect to such Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters shall act on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be designated for such
purpose in this Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives in
care of Xxxxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
and if to the Company or the Trust shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Xxxxx X. Xxxxxxxx, Esq., Senior Vice
President; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company and the Trust by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Trust and, to the extent provided
in Section 8 and Section 10 hereof, the officers and directors of the Company
and each person who controls the Company, the Trust or any Underwriter, and
their respective heirs,
-39-
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 Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of 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.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
-40-
If the foregoing is in accordance with your understanding,
please sign and return to us eight counterparts hereof.
Very truly yours,
THE ST. XXXX COMPANIES, INC.
By:_______________________________
Name:
Title:
ST. XXXX CAPITAL TRUST I
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
XXXXXXX XXXXX XXXXXX
XXXXXXX XXXXX & CO.
XXXXXX XXXXXXX XXXX XXXXXX
XXXXXXX, XXXXX & CO.
UBS WARBURG
PRUDENTIAL SECURITIES INC
XXXXXX BROTHERS INC.
BY: XXXXXXX XXXXX XXXXXX
By:_______________________________
Name:
Title:
On behalf of each of the Underwriters
SCHEDULE 1
STATED
LIQUIDATION
AMOUNT OF
STATED OPTIONAL
LIQUIDATION SECURITIES TO
AMOUNT OF FIRM BE PURCHASED
SECURITIES TO IF MAXIMUM
UNDERWRITER BE PURCHASED EXERCISED
----------- ------------ ---------
Xxxxxxx Xxxxx Xxxxxx $
Total.................... ------------
$
=============
1-1
