EXHIBIT 1.1
Nuveen Investments, Inc.
$550,000,000
$250,000,000 aggregate principal amount of 5.00% Senior Notes due 2010
$300,000,000 aggregate principal amount of 5.50% Senior Notes due 2015
Underwriting Agreement
New York, New York
September 7, 2005
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Nuveen Investments, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount of its securities identified
in Schedule I hereto (the "Securities"), to be issued under an indenture to be
dated as of September 12, 2005, as supplemented by a supplemental indenture to
be dated as of September 12, 2005 (the "Indenture") between the Company and The
Bank of New York Trust Company, N.A., as trustee (the "Trustee"). Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
2
(a) The Registration Statement has been filed with the Commission and
has been declared effective under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement has been issued,
and no notice has been received from the Commission by the Company that any
proceedings for such purpose are pending or, to the knowledge of the
Company, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Final Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Final Prospectus comply and, as amended
or supplemented, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission thereunder
and (iv) the Final Prospectus does not contain and, as amended or
supplemented, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements or omissions based upon information relating to
the Underwriters furnished to the Company in writing by the Underwriters
expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Final Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the financial condition, earnings or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(d) Each Investment Advisory Subsidiary (as defined below) and each
Significant Subsidiary of the Company (as that term is defined under
Regulation S-X promulgated under the Exchange Act) (together with the
Investment Advisory Subsidiaries, the "Significant Subsidiaries") has been
duly incorporated or formed, is validly existing in good standing under the
laws of the jurisdiction of its incorporation or formation, has the
requisite power and authority to own its property and to conduct its
business as described in the Final Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
3
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect;
all of the issued shares of capital stock or interests of each Significant
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, or the substantive equivalent thereto,
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except in each case as would not cause a Material
Adverse Effect.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly authorized and on the Closing Date
will have been duly executed and delivered, will have been duly qualified
under the Trust Indenture Act, and will constitute a legal, valid and
binding instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(g) On the Closing Date, the Securities will have been duly authorized
by the Company and, when executed, authenticated and issued in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law).
(h) Except as disclosed in the Final Prospectus, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and the Securities will
not contravene (i) any provision of applicable law or (ii) the certificate
of incorporation or by laws of the Company or (iii) any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or (iv) any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, except in the case of (i),
(iii), and (iv) as would not have a Material Adverse Effect, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture and the Securities,
except those which have been obtained or made, and except such as may be
required by
4
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares and except those for which the failure to
obtain, individually or in the aggregate, would not have a Material Adverse
Effect.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
financial condition or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Final Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Final Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Final Prospectus or to
be filed as exhibits to the Registration Statement that are not described
or filed as required.
(k) Each Preliminary Final Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, complied
as to form when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(l) Except as disclosed in the Final Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Securities registered pursuant to the Registration
Statement.
(m) Neither the Company nor any of its subsidiaries is in violation of
its certificate of incorporation, by-laws or other constituent documents;
neither the Company nor any of its subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or other instrument binding upon the
Company or any of its subsidiaries, except to the extent any such default
would not, individually or in the aggregate, have a Material Adverse
Effect.
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, (i) the
Company and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction; (ii) the Company has not purchased any of its outstanding
capital stock (other than open market
5
repurchases pursuant to its open market repurchase program), nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii) there
has not been any material change in the capital stock or any increase in
short term debt or long term debt of the Company and its subsidiaries,
except in each case as described in the Final Prospectus or as contemplated
by the offerings and transactions that are described therein.
(o) The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Final Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its subsidiaries,
in each case except as described in the Final Prospectus.
(p) The Company and its subsidiaries, either directly or through a
subsidiary or subsidiaries, own or possess, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names necessary for the
conduct of the business now operated by them, except where the failure to
so own, possess or be able to acquire on reasonable terms would not,
individually or in the aggregate, have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(q) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent, that
would have a Material Adverse Effect; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any
of its principal suppliers, manufacturers or contractors that would have a
Material Adverse Effect.
(r) The Company and its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any of its subsidiaries
has received any notice of proceedings
6
relating to the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as described in the Final Prospectus.
(s) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(t) Except as described in the Final Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any securities
of the same or similar class as the Securities during the six-month period
preceding the date hereof, including any sales pursuant to Rule 144A under,
or Regulation D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants.
(u) KPMG LLP, whose report is incorporated by reference in the Final
Prospectus, has notified us that it is an independent registered public
accounting firm with respect to the Company and its combined subsidiaries
within the meaning of the Securities Act and the rules and regulations
adopted by the Commission thereunder. The financial statements of the
Company and its combined subsidiaries (including the related notes)
incorporated in the Registration Statement and the Final Prospectus present
fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at
the dates and for the periods indicated and have been prepared in
accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods indicated and conform
in all material respects with the rules and regulations adopted by the
Commission under the Securities Act.
(v) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or
7
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, individually or in the aggregate, have a Material Adverse
Effect.
(w) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended (the "1940 Act").
(x) Except in each case as would not reasonably be expected to have a
Material Adverse Effect: Each of Rittenhouse Asset Management Inc., NWQ
Investment Management Company LLC, Symphony Asset Management Inc., Nuveen
Asset Management, Inc., Nuveen Investments Advisers and Nuveen Investments
Institutional Services Group, LLC (together, the "Investment Advisory
Subsidiaries") is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act") and none
of the Investment Advisory Subsidiaries is prohibited by any provision of
the Advisers Act or the 1940 Act, or the respective rules and regulations
thereunder, from acting as an investment adviser. The Investment Advisory
Subsidiaries are the only direct or indirect subsidiaries of the Company
required to be registered as investment advisers under the Advisers Act.
Each of the Investment Advisory Subsidiaries is duly registered, licensed
or qualified as an investment adviser in each jurisdiction where the
conduct of its business requires such registration and is in compliance
with all federal, state and foreign laws requiring any such registration,
licensing or qualification or is subject to no material liability or
disability by reason of the failure to be so registered, licensed or
qualified in any such jurisdiction or to be in such compliance. None of the
Company or its other direct or indirect subsidiaries is required to be
registered, licensed or qualified as an investment adviser under the laws
requiring any such registration, licensing or qualification in any
jurisdiction in which it or such other subsidiaries conduct business or is
subject to material liability or disability by reason of the failure to be
so registered, licensed or qualified.
(y) Nuveen Investments, LLC (the "Broker-Dealer Subsidiary") is duly
registered, licensed or qualified as a broker-dealer under the Exchange
Act, and under the securities laws of each jurisdiction where the conduct
of its business requires such registration and is in compliance with all
federal, state and foreign laws requiring such registration, licensing or
qualification or is subject to no material liability or disability by
reason of the failure to be so registered, licensed or qualified in any
such jurisdiction or to be in such compliance. The Broker-Dealer Subsidiary
is a member in good standing of NASD and each other self regulatory
organization where the conduct of its business requires such membership.
Neither the Company nor any of the Company's other direct or
8
indirect subsidiaries is required to be registered, licensed or qualified
as a broker-dealer under the laws requiring any such registration,
licensing or qualification in any jurisdiction in which it or such other
subsidiaries conduct business or is subject to any material liability or
disability by reason of the failure to be so registered, licensed or
qualified except where the failure to be so registered, licensed or
qualified would not have a Material Adverse Effect.
(z) Each of the Investment Advisory Subsidiaries and the Broker-Dealer
Subsidiary is, has been and will upon consummation of the transactions
contemplated herein be, in compliance with, and each such entity has
received no notice of any kind of any violation of, (A) all laws,
regulations, ordinances and rules (including those of any non-governmental
self-regulatory agencies) applicable to it or its operations relating to
investment advisory or broker-dealer activities, as the case may be, and
(B) all other laws, regulations, ordinances and rules applicable to it and
its operations, except, in either case, where any failure to comply with
any such law, regulation, ordinance or rule would not have, individually or
in the aggregate, a Material Adverse Effect.
(aa) Each investment advisory agreement between the Company and any
Investment Advisory Subsidiary on the one hand and any advisory client or
private client on the other is a legal and valid obligation of the Company
and/or an Investment Advisory Subsidiary, as applicable, and, to the
knowledge of the Company, the other parties thereto, and neither the
Company nor any Investment Advisory Subsidiary is, to the knowledge of the
Company, in breach or violation of or in default under any such agreement,
which breach, violation or default would individually or in the aggregate
have a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective
9
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (2) when, prior to termination of the offering
of the Securities, any amendment to the Registration Statement shall have
been filed or become effective, (3) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (4) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose and
(5) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event occurs as a
result of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements
10
therein in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Securities Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
(1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct such statement or omission
or effect such compliance and (3) supply any supplemented Final Prospectus
to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Securities Act, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
taxation or service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any debt
11
securities issued or guaranteed by the Company (other than the Securities)
or publicly announce an intention to effect any such transaction, until the
Business Day set forth on Schedule I hereto.
(g) Prior to the date hereof, the Company has not taken, and from the
date hereof to the Closing Date, the Company will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any debt security
of the Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused Winston & Strawn LLP,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and, assuming that the Indenture is the valid and
legally binding obligation of the Trustee, the Indenture constitutes
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); and the Securities
have been duly authorized by the Company and, when executed by the
Company and authenticated and issued in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of
12
the Indenture (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law);
(iii) the Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus will not be, required to register
as an "investment company" as such term is defined in the 1940 Act;
and
(iv) the Registration Statement and the Final Prospectus (except
for the financial statements and related notes and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need not comment) appear on their face to be responsive
as to form in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
In the course of such counsel's review of the contents of the
Registration Statement and its participation in the preparation of the
Final Prospectus and review and discussion of the contents thereof,
although such counsel has not independently checked or verified, and
is not passing upon and assumes no responsibility for, the accuracy,
completeness, or fairness thereof, or otherwise verified the
statements made therein, as of the Closing Date no facts have come to
the attention of such counsel that cause such counsel to believe that
(i) the Registration Statement or the Final Prospectus included
therein (except for the financial statements and related notes and
other financial or statistical data included therein or omitted
therefrom, as to which such counsel need not comment) as of the date
of this Agreement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) the
Final Prospectus (except for the financial statements and related
notes and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need not comment) as of
its date or as of the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, without
independent verification, as to matters of fact, to the extent they
deem appropriate, on the representations of the Company contained
herein and on certificates of responsible officers of the Company and
public officials. Such opinion will be limited to the laws of the
State of New York, the
13
federal laws of the United States and the General Corporation Law of
the State of Delaware, and such counsel will express no opinion as to
the effect on the matters covered by such opinion of the laws of any
other jurisdiction. Such opinion may also state that such counsel
acted as special counsel to the Company in connection with the
offering of the Securities contemplated hereby and did not act, and
has not acted, as the Company's regular outside counsel. References to
the Final Prospectus in this paragraph (b) shall also include any
supplements thereto at the Closing Date.
(c) The Underwriters shall have received on the Closing Date an
opinion of Alan G. Berkshire, Esq., General Counsel to the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Final Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect;
(ii) each Significant Subsidiary of the Company has been duly
incorporated or formed, is validly existing in good standing under the
laws of the jurisdiction of its incorporation or formation, has the
requisite power and authority to own its property and to conduct its
business as described in the Final Prospectus and is duly qualified to
transact such business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect;
(iii) to such counsel's knowledge and other than as set forth in
the Final Prospectus, there are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect;
(iv) each of the Investment Advisory Subsidiaries is duly
registered as an investment adviser under the Advisors Act. To such
counsel's knowledge, none of the Company or its subsidiaries other
than the Investment Advisory Subsidiaries is required to be
registered, licensed, or qualified as an investment adviser under the
Advisers Act and the rules
14
and regulation of the Commission promulgated thereunder or under
applicable state laws, except where any failure to be so registered,
licensed, or qualified would not have a Material Adverse Effect. To
such counsel's knowledge, each of the Investment Advisory Subsidiaries
is in compliance with the Advisers Act and applicable state laws,
regulations, ordinances and rules applicable to it or its operations
relating to investment advisory activities except where any failure by
any such Investment Advisory Subsidiary to comply with any such law,
regulation, ordinance or rule would not have a Material Adverse
Effect.
(v) to the knowledge of such counsel, neither the Company nor any
Investment Advisory Subsidiary is in breach or violation of or in
default under any investment advisory contract which would
individually or in the aggregate have a have a Material Adverse
Effect;
(vi) the Broker-Dealer Subsidiary is duly registered, licensed or
qualified as a broker-dealer under the Exchange Act and in each
Jurisdiction where the conduct of its business requires registration,
licensing or qualification, except to the extent that the failure to
be so registered, licensed or qualified would not have a Material
Adverse Effect. None of the Company or its subsidiaries, other than
the Broker-Dealer Subsidiary, is required to be registered, licensed
or qualified as a broker-dealer under the Exchange Act and the rules
and regulations of the Commission promulgated thereunder or under the
laws requiring any such registration, licensing or qualification in
any jurisdiction in which it conducts business, except where any
failure to be so registered, licensed, or qualified would not have a
Material Adverse Effect. Each of the Company and the Broker-Dealer
Subsidiary is in compliance with all laws, regulations, ordinances and
rules (including those of any self regulatory organizations) as
applicable to it or its operations relating to broker-dealer
activities except where any failure to comply with any such law,
regulation, ordinance or rule would not have, individually or in the
aggregate, a Material Adverse Effect;
(vii) except as disclosed in the Final Prospectus, the execution
and delivery by the Company of, and the performance by the Company of
its obligations under this Agreement, the Indenture and the
Securities, will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to such
counsel's knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or, to such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any U.S. federal, State of Illinois or State of
15
Delaware governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, except those
which have been obtained or made, and as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Securities (it being understood that this
opinion is limited to those consents, approvals, authorizations,
orders, and qualifications that, in such counsel's experience, are
normally applicable to transactions of the type contemplated by this
Agreement); and
(viii) the Registration Statement and the Final Prospectus
(except for the financial statements and related notes and other
financial or statistical data included therein or omitted therefrom,
as to which such counsel need not comment) appear on their face to be
responsive as to form in all material respects to the requirements of
the Securities Act and the applicable rules and regulations of the
Commission thereunder.
In the course of such counsel's participation in the preparation
of the Registration Statement and Final Prospectus and review and
discussion of the contents thereof, although such counsel has not
independently checked or verified, and is not passing upon and assumes
no responsibility for, the accuracy, completeness, or fairness
thereof, or otherwise verified the statements made therein (it being
understood that such counsel has prepared and reviewed the disclosures
included in the Final Prospectus under the caption
"Business--Regulatory," and incorporated by reference in the Final
Prospectus under the caption "Legal Proceedings" in the Company's
Annual Report on Form 10-K for the year ended December 31, 2004 and
under the caption "Legal Proceedings" in the Company's Quarterly
Report on Form 10-Q for the three-month period ended June 30, 2005),
as of the Closing Date no facts have come to the attention of such
counsel that cause such counsel to believe that (i) the Registration
Statement or the prospectus included therein (except for the financial
statements and related notes and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need
not comment) on the date the Registration Statement became effective
and as of the date of this Agreement contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) the Final Prospectus (except for the financial
statements and related notes and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need
not comment) as of its date or as of the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
16
In rendering such opinion, such counsel may rely, without
independent verification, (x) as to matters of fact, to the extent he
deems appropriate, on certificates of responsible officers of the
Company and public officials, and (y) as to matters involving the
application of any jurisdiction other than the State of Illinois, the
federal laws of the United States and the General Corporation Law of
the State of Delaware, to the extent he deems appropriate and
specified in such opinion, upon the opinion of other counsel of good
standing whom he reasonably believes to be reliable and who are
reasonably satisfactory to counsel for the Underwriters. References to
the Final Prospectus in this paragraph (c) shall also include any
supplements thereto at the Closing Date.
(d) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President or any Senior Vice
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
17
(f) The Company shall have requested and caused KPMG LLP, independent
registered public accountants, to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, (which may refer to
letters previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent registered public accountants with respect to the Company
within the meaning of the Securities Act and the applicable rules and
regulations adopted thereunder by the Commission and the Public Company
Accounting Oversight Board (United States) (the "PCAOB") and that they have
performed the procedures specified by the PCAOB for a review of the
unaudited interim financial information of the Company for the three-month
periods ended March 31, 2005 and 2004, and the three-month and six-month
periods ended June 30, 2005 and 2004, in accordance with Statement on
Auditing Standards No. 100, and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited consolidated financial
statements incorporated by reference in the Registration Statement and
the Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with the procedures specified by the
PCAOB for a review of interim financial information as described in
Statement on Auditing Standards No. 100, of the unaudited condensed
consolidated financial information for the three-month periods ended
March 31, 2005 and 2004, and the three-month and six-month periods
ended June 30, 2005 and 2004; carrying out certain specified
procedures (but not an examination in accordance with the standards of
the PCAOB) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the directors and compensation and
audit committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 2004, nothing came
to their attention which caused them to believe that:
(1) any unaudited condensed consolidated financial
statements incorporated by reference in the Registration
Statement and the Final Prospectus do not comply as to form in
all material respects with applicable accounting requirements of
the Exchange
18
Act as it applies to Form 10-Q and the related rules and
regulations adopted by the Commission; or that any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(2) with respect to the period subsequent to June 30, 2005,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or in the capital stock or
consolidated short-term obligations of the Company, or that there
was any decrease in consolidated net assets or stockholders'
equity of the Company as compared with the amounts shown on the
June 30, 2005 consolidated balance sheet incorporated by
reference in the Registration Statement and the Final Prospectus,
or for the period from July 1, 2005 to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year in the total or per share amounts of income or
of net income, in consolidated total revenues, income before
taxes or net income or earnings per common share of the Company
and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(3) the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data) and Item 402
(Executive Compensation), is not in conformity with the
applicable disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
set forth under the captions "Prospectus Supplement Summary", "Risk
Factors", "Use of Proceeds", "Capitalization", "Ratio of Earnings to
Fixed Charges", "Selected Consolidated Financial Data", "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and "Business" in the Final Prospectus, the information
included or incorporated by reference in Items 1, 5, 6, 7 and 12 of
the Company's Annual Report on Form 10-K, incorporated by reference in
the Registration Statement and the Final
19
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" incorporated by reference in the Company's Quarterly
Reports on Form 10-Q, incorporated by reference in the Registration
Statement and the Final Prospectus, agrees with the accounting records
of the Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j) The Company shall use the proceeds of the offering of the
Securities to repay outstanding borrowings under the $750 million Bridge
Credit Agreement dated as of April 1, 2005 among the Company, various
financial institutions party thereto, Citicorp North America, Inc., as
administrative agent and Citigroup Global Markets, Inc., as arranger.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and
20
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Davis Polk & Wardwell, counsel for the Underwriters,
at 450 Lexington Avenue, New York, New York, 10016, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof 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 agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will 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 any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through
21
the Representatives specifically for inclusion therein and provided,
further, that the foregoing indemnity obligations with respect to the
Preliminary Final Prospectus shall not inure to the benefit of the
Underwriters, or any person controlling the Underwriters within the meaning
of the securities laws if a copy of the Final Prospectus (as then amended
or supplemented) was not sent or given by or on behalf of the Underwriters
to the person asserting such losses, claims, damages or liabilities who
purchased the Securities from the Underwriters, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of
the Securities to such person, and if the Final Prospectus (as then amended
or supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 5(d) hereof.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities and, under
the heading "Underwriting", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraphs related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Final Prospectus or the Final
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled, in its sole discretion, to assume the
defense of such claim and to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in
22
any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise, judgment or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Underwriters severally shall contribute
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 of
the Underwriters on the
23
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on
the cover page of the Final Prospectus. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning
of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take and
pay for (in the respective proportions which the principal amount of Securities
set forth opposite their names in Schedule II hereto bears to the aggregate
principal amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities within 36 hours of such default,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five
24
Business Days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to each of (a) the Citigroup Global Markets Inc. General
Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York,
10013, Attention: General Counsel and (b) UBS Securities LLC, Fixed Income
Syndicate (fax no.: (203) 719-0495) and confirmed to the Fixed Income Syndicate,
UBS Securities LLC, at 677 Washington Boulevard, Stamford, Connecticut, 06901;
or, if sent to the Company, will be mailed, delivered or telefaxed to Nuveen
Investments, Inc. General Counsel (fax no.: (312) 917-7952) and confirmed to it
at Nuveen Investments, Inc., 333 West Wacker Drive, Chicago, Illinois, 60606,
Attention: Alan G. Berkshire, Esq.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
25
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in Section
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in
26
which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the
case may be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Securities Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations of the Commission promulgated thereunder.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
18. No fiduciary duty. The Company hereby acknowledges that (a) the
Underwriters are acting as principal and not as an agent or fiduciary of
the Company and (b) its engagement of the Underwriters in connection with
the Offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making
its own judgments in connection with the Offering (irrespective of whether
the Underwriters have advised or are currently advising the Company on
related or other matters).
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Nuveen Investments, Inc.
By: /s/ Alan G. Berkshire
------------------------------------
Name: Alan G. Berkshire
Title: Senior Vice President
28
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Citigroup Global Markets Inc.
UBS Securities LLC
By: Citigroup Global Markets Inc.
By: /s/ Kevin Deignan
---------------------------------
Name: Kevin Deignan
Title: Director
By: UBS Securities LLC
By: /s/ Scott Yeager
---------------------------------
Name: Scott Yeager
Title: Managing Director
By: /s/ Michael Ravanesi
---------------------------------
Name: Michael Ravanesi
Title: Director
For themselves and the other several Underwriters named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated September 7, 2005
Registration Statement No. 333-123101
Representatives: Citigroup Global Markets Inc.
UBS Securities LLC
Title, Purchase Price and Description of Securities:
Title: 5.00% Senior Notes due 2010 (the "2010 Notes")
5.50% Senior Notes due 2015 (the "2015 Notes")
Principal amount: 2010 Notes - $250,000,000
2015 Notes - $300,000,000
Purchase price (include
accrued interest or
amortization, if any): 2010 Notes - 99.124%
2015 Notes - 98.848%
Sinking fund provisions: None
Redemption provisions: As described in Final Prospectus.
Other provisions: As described in Final Prospectus.
Closing Date, Time and Location: September 12, 2005 at 10:00 a.m. at Davis Polk
& Wardwell, 450 Lexington Avenue, New York, New York 10016
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representatives: September 12, 2005
SCHEDULE II
PRINCIPAL AMOUNT
---------------------------
UNDERWRITERS 2010 NOTES 2015 NOTES
- ------------ ------------ ------------
Citigroup Global Markets Inc. ....... $ 90,000,000 $108,000,000
UBS Securities LLC................... 90,000,000 108,000,000
A.G. Edwards & Sons, Inc. ........... 8,750,000 10,500,000
Banc of America Securities LLC....... 8,750,000 10,500,000
BNY Capital Markets, Inc. ........... 8,750,000 10,500,000
Goldman, Sachs & Co. ................ 8,750,000 10,500,000
HSBC Securities (USA) Inc. .......... 8,750,000 10,500,000
J.P. Morgan Securities Inc. ......... 8,750,000 10,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ..................... 8,750,000 10,500,000
Morgan Stanley & Co. Incorporated.... 8,750,000 10,500,000
------------ ------------
Total............................. $250,000,000 $300,000,000
============ ============