SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported)
April 12, 2000
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THE ST. PAUL COMPANIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Minnesota
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(State or Other Jurisdiction of Incorporation)
0-3021 41-0518860
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Commission File Number (IRS Employer Identification No.)
385 Washington Street, St. Paul, MN 55102
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(Address of Principal Executive Offices) (Zip Code)
(651) 310-7911
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(Registrant's Telephone Number, Including Area Code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On April 17, 2000, The St. Paul Companies, Inc., a Minnesota
Corporation ("The St. Paul"), issued and sold (i) $250,000,000 aggregate
principal amount of its 7.875% Senior Notes due 2005 (the "2005 Notes") and (ii)
$250,000,000 aggregate principal amount of its 8.125% Senior Notes due 2010 (the
"2010 Notes" and, together with the 2005 Notes, the "Senior Notes"), registered
under the Securities Act of 1933, as amended (Registration Statements Nos.
333-67139, 333-06465 and 333-34666). The Senior Notes were issued pursuant to
the Indenture, dated as of March 31, 1990, between The St. Paul and The Chase
Manhattan Bank. The Senior Notes were purchased by Donaldson, Lufkin & Jenrette
Securities Corporation, Lehman Brothers Inc. and The Williams Capital Group,
L.P. (the "Representatives"), pursuant to the Underwriting Agreement and Pricing
Agreements, dated April 12, 2000, between The St. Paul and the Representatives.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
The following exhibits are filed herewith:
Exhibit
Number Description
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1.1 Underwriting Agreement, dated as of April 12, 2000, between
The St. Paul Companies, Inc. and Donaldson, Lufkin &
Jenrette Securities Corporation, Lehman Brothers Inc. and
The Williams Capital Group, L.P.
1.2 Pricing Agreement, dated as of April 12, 2000, between The
St. Paul Companies, Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation, Lehman Brothers Inc. and The
Williams Capital Group, L.P., as representatives of the
several Underwriters named in Schedule I thereto relating to
the 2010 Notes.
4.1 Specimen of the 8.125% Senior Notes due 2010, of The St.
Paul Companies, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE ST. PAUL COMPANIES, INC.
By: /S/ BRUCE A. BACKBERG
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Name: Bruce A. Backberg
Title: Senior Vice President
Date: April 20, 2000
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EXHIBIT INDEX
Exhibit
Number Description
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1.1 Underwriting Agreement, dated as of April 12, 2000, between
The St. Paul Companies, Inc. and Donaldson, Lufkin &
Jenrette Securities Corporation, Lehman Brothers Inc. and
The Williams Capital Group, L.P.
1.2 Pricing Agreement, dated as of April 12, 2000, between The
St. Paul Companies, Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation, Lehman Brothers Inc. and The
Williams Capital Group, L.P., as representatives of the
several Underwriters named in Schedule I thereto relating to
the 2010 Notes.
4.1 Specimen of the 8.125% Senior Notes due 2010, of The St.
Paul Companies, Inc.
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THE ST. PAUL COMPANIES, INC.
DEBT SECURITIES
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Underwriting Agreement
April 12, 2000
Donaldson, Lufkin & Jenrette
Securities Corporation
Lehman Brothers Inc.
The Williams Capital Group, L.P.
As representatives of the several Underwriters
named in Schedule 1 hereto,
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
From time to time The St. Paul Companies, Inc., a Minnesota corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
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1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-06465 and
333-67139) (each an "Initial Registration Statement" and collectively the
"Initial Registration Statements") in respect of the Securities
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have been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statements 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
Statements, but including all documents incorporated by reference in the
prospectus included in the latest registration statement, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statements 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 Statements became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter called the
"Registration Statement"; the
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prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statements shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective
date of the Initial Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or 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
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Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance of
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented to relate to
a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any direct loss or
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interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which is material to the
Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Company and its subsidiaries taken as a whole (other than any
decrease in the capital stock resulting from purchases under the Company's
Stock Repurchase Program and any increase resulting from the exercise of
stock options or the issuance of restricted shares under the Company's
stock incentive and employee compensation plans, or the conversion of
Series B Convertible Preferred Stock and Series C Convertible Preferred
Stock) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, and is not subject to any material liability or disability
by reason of the failure to be so qualified in any such jurisdiction; and
each of the Company's principal subsidiaries (hereinafter called "Principal
Subsidiaries"), namely St. Paul Fire and Marine Insurance Company, United
States Fidelity and Guaranty Company and The John Nuveen Company, has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of
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incorporation and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; all of the issued shares of capital stock of each of St.
Paul Fire and Marine Insurance Company, United States Fidelity and Guaranty
Company and The John Nuveen Company held directly or indirectly by the
Company have been duly authorized and validly issued, are fully paid and
non-assessable and (except as disclosed in the Registration Statement) all
shares of the capital stock of such subsidiaries are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(g) The Securities have been duly authorized by the Company, and, when
Designated Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been 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 duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
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(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing 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 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 Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture,
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;
(i) Neither the Company nor any of its subsidiaries is in violation of
its organizational documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties is or may be bound;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities We
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May Offer" and "Description of Notes", 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 "United
States Taxation", and under the captions "Plan of Distribution" and
"Underwriting" insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(k) Other than as set forth in the Prospectus, and other than
litigation (none of which is reasonably likely to be material) incidental
to the kinds of business conducted by the Company and its subsidiaries,
there are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party, or of which any property of the
Company or any of its subsidiaries is the subject, which, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate (after giving effect to any applicable insurance,
reinsurance or reserves therefor) have a material adverse effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Immediately after any sale of Securities by the Company hereunder
or under any Pricing Agreement, the aggregate amount of Securities which
shall have been issued and sold by the Company hereunder or under any
Pricing Agreement and of any debt securities of the Company (other than
such Securities) that shall have been issued and sold pursuant to the
registration
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statement will not exceed the amount of debt securities registered under
the registration statement; and
(n) (A) KPMG LLP, who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder; and (B) Ernst & Young LLP, who have certified certain financial
statements of former USF&G Corporation and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in a form approved by the
Representatives
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and to file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities or, if applicable, such earlier time
as may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or 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
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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 the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the 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
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
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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 the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the 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, any Pricing Agreement, any
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
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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) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; and (viii) 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 of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
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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) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the Company,
the validity of the Indenture, the Designated Securities, the Registration
Statement, the Prospectus as amended or supplemented and other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Bruce A. Backberg, Esq., Senior Vice President for the Company, or
other counsel for the Company acceptable to the Representatives, shall have
furnished to the Representatives his written opinion, dated the Time of Delivery
for such Designated 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 as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
jurisdiction in which, in such counsel's opinion, the Company is required
to be so qualified or if the Company is not so qualified in any such state
or jurisdiction, the
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failure to so qualify would not, considering all cases in the aggregate,
involve a material risk to the business, properties, financial position or
results of operation of the Company and its subsidiaries, taken as a whole;
(iv) Each of the Principal Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; all of the issued shares of capital stock of
each of St. Paul Fire and Marine Insurance Company, United States Fidelity
and Guaranty Company and The John Nuveen Company held directly or
indirectly by the Company have been duly authorized and validly issued, are
fully paid and non-assessable, and (except as disclosed in the Registration
Statement) all shares of the capital stock of such subsidiaries are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (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 the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, other than as set forth in the Prospectus
and other than litigation or proceedings (none of which is reasonably
likely to be material) incident to the kinds of business conducted by the
Company and its subsidiaries, which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate (after
giving effect to any applicable insurance, reinsurance or reserves
therefor) have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole; and, to the best of such counsel's
knowledge, no such
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proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(vii) The Designated Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture; and the Designated Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities, the compliance by
the Company with all of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
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<PAGE>
subsidiaries is subject, nor will such actions result in any violation of
the provisions of the Restated Articles of Incorporation, as amended, or
By-laws, as amended, of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any
of their properties;
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or any applicable Pricing 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 Designated Securities by the Underwriters;
(xi) 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;
(xii) The statements set forth in the Prospectus under the captions
"Description of Debt Securities We May Offer" and "Description of Notes",
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 "United States Taxation", and under the captions
"Plan of Distribution" and "Underwriting" insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
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<PAGE>
(xiii) The Company is not and, after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xiv) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so filed, as
the case may be, contained, in the case of the registration statement which
became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the date of such opinion for the Designated Securities
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) contained an
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<PAGE>
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading or
that, as of the date of such opinion, either the Registration Statement or
the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the date of such opinion
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as required;
provided that in lieu of the delivery of the opinion set forth in paragraph
(iv) of this Section 7(c) as to The John Nuveen Company, such counsel may
cause Alan G. Berkshire, Vice President and General Counsel to The John
Nuveen Company, to deliver an opinion as to such matters, dated the Time of
Delivery for such Designated Securities.
(d) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, the independent
accountants of the Company who have certified the financial statements of the
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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, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its Principal Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities there shall
not have been any change in the capital stock or long-term debt of the Company
and its subsidiaries taken as a whole (other than any decrease in the capital
stock resulting from purchases under the Company's Stock Repurchase Program and
any increase in the capital stock resulting from the exercise of stock options
or the issuance of restricted shares under the Company's stock incentive and
employee compensation plans, or the conversion of Series B Convertible Preferred
Stock 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 the date
of the Pricing Agreement relative to the
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Designated Securities, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended relating to the Designated
Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (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;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities; or (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
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery
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<PAGE>
for the Designated Securities a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the 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 the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary 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
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities; and provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss,
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<PAGE>
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
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the 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 for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
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<PAGE>
(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.
(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
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payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of the
Designated 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 on the one
hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or
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defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Designated
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 Designated 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 under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated 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 Designated 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 Designated 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 Designated Securities, or the Company
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notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated 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 agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated 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 Designated 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 Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company
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shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any
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statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Bruce A. Backberg, Esq., Senior Vice
President; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the 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 and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
-30-
<PAGE>
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
-31-
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
THE ST. PAUL COMPANIES, INC.
By:/s/ Bruce A. Backberg
------------------------------------
Name: Bruce A. Backberg
Title: Senior Vice President
Accepted as of the date hereof:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
THE WILLIAMS CAPITAL GROUP, L.P.
BY: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:/s/ Scott Huntsman
----------------------------------
Name: Scott Huntsman
Title: Vice President
On behalf of each of the Underwriters
-32-
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
Donaldson, Lufkin & Jenrette
Securities Corporation,
Lehman Brothers Inc.
The Williams Capital Group, L.P.
As Representatives of the several
Underwriters named in Schedule I hereto,
277 Park Avenue
New York, New York 10172.
April o, 2000
Dear Sirs:
The St. Paul Companies, Inc., a Minnesota corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated April o, 2000 (the "Underwriting Agreement"),
between the Company on the one hand and Donaldson, Lufkin & Jenrette Securities
Corporation, Lehman Brothers Inc. and The Williams Capital Group, L.P. on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you.
-1-
<PAGE>
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated to act on behalf
of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Underwriting Agreement and
the address of the Representatives referred to in such Section 12 are set forth
at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [One for the issuer and each of the Representatives plus one
for each Counsel] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
-2-
<PAGE>
Very truly yours,
THE ST. PAUL COMPANIES, INC.
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
THE WILLIAMS CAPITAL GROUP, L.P.
BY: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:----------------------------------
Name:
Title:
On behalf of each of the Underwriters
-3-
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
Donaldson, Lufkin & Jenrette $
Securities Corporation....................................
Lehman Brothers Inc.. ..........................................
The Williams Capital Group, L.P.................................
Total..................................................
---------------
$
===============
-1-
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities,
plus accrued interest[, if any,] from to [and
accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities,
plus accrued interest from
to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]] [Book-entry only form represented by one or more global
securities deposited with The Depository Trust Company ("DTC") or its
designated custodian, to be made available for checking by the
Representatives at least twenty-four hours prior to the Time of Delivery
at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
a.m. (New York City time), , 2000
INDENTURE:
Indenture dated , 2000 , between the
Company and The Chase Manhattan Bank, as Trustee
MATURITY:
INTEREST RATE:
-1-
<PAGE>
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 2000]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof, [on or after , at the
following redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , %, and if] redeemed during the
12-month period beginning ,
Year Redemption
---- Price
-----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.] [on any interest payment
date falling on or after , , at the election of the Company, at a
redemption price equal to the principal amount thereof, plus accrued
interest to the date of redemption.]] [Other possible redemption
provisions, such as mandatory redemption upon occurrence of certain events
or redemption for changes in tax law] [Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued interest[,
together with [cumulative] [noncumulative] redemptions at the option of
the Company to retire an additional [$ ] principal
-2-
<PAGE>
amount of Designated Securities in the years
through at 100% of their principal amount plus
accrued interest.]
[If Designated Securities are extendable debt securities,
insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest. The
initial annual interest rate will be %, and thereafter the annual interest
rate will be adjusted on , and
to a rate not less than % of the effective annual interest
rate on U.S. Treasury obligations with -year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Designated Securities are floating rate debt securities,
insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the
average rate for -year
[month][securities][certificates of deposit] issued by
and
[insert names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) the then current weekly average
per annum secondary market yield for -month certificates of deposit over
(ii) the then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills); [ from and
thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
Paragraph [7(g)] of the Underwriting Agreement should be
modified in the event that the Securities are denominated
-3-
<PAGE>
in, indexed to, or principal or interest are paid in, a currency other
than the U.S. dollar, more than one currency or in a composite currency.
The country or countries issuing such currency should be added to the
banking moratorium and hostilities clauses and the following additional
clause should be added to the paragraph (the entire paragraph should be
restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
-4-
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited, and, if applicable, financial
forecasts and/or pro forma financial information examined, by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been [SEPARATELY] furnished to the
representative or representatives of the Underwriters (the
"Representatives")such term to include an Underwriter or Underwriters who
act without any firm being designated as its or their representatives [AND
ARE ATTACHED HERETO];
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included
-1-
<PAGE>
in the Prospectus and/or included in the Company's quarterly report on
Form 10-Q incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which [HAVE BEEN SEPARATELY FURNISHED TO
THE REPRESENTATIVES][ARE ATTACHED HERETO]; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the [ACT AND THE EXCHANGE] Act
and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the [ACT AND THE
EXCHANGE] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
-2-
<PAGE>
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act, or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal
year;
-3-
<PAGE>
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (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 increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by reference
in the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter;
(F) at the date of the latest available incomplete
unaudited consolidated condensed balance sheet of the
-4-
<PAGE>
Company and subsidiaries there were any decreases in total invested
assets, total assets or total net assets or other items reasonably
specified by the Representatives, or any increases in any items
reasonably specified by the Representatives, in each case as compared
with the amounts reflected in the incomplete unaudited consolidated
condensed balance sheet at the date of the latest financial statements
included or incorporated by reference in the Prospectus, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(G) for the period from the date of the latest financial
statements for the Company and its subsidiaries included or
incorporated by reference in the Prospectus to the specified date
referred to in clause (E) there were any changes in the consolidated
capital stock or in the debt of the Company and its subsidiaries or
other items specified by the Representatives in each case as compared
with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except
in each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
-5-
<PAGE>
of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
-6-
PRICING AGREEMENT
Donaldson, Lufkin & Jenrette
Securities Corporation,
Lehman Brothers Inc.
The Williams Capital Group, L.P.
As Representatives of the several
Underwriters named in Schedule I hereto,
277 Park Avenue
New York, New York 10172.
April 12, 2000
Dear Sirs:
The St. Paul Companies, Inc., a Minnesota corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated April 12, 2000 (the "Underwriting Agreement"),
between the Company on the one hand and Donaldson, Lufkin & Jenrette Securities
Corporation, Lehman Brothers Inc. and The Williams Capital Group, L.P. on the
other hand, to issue and sell to the underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you.
<PAGE>
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated to act on behalf
of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Underwriting Agreement and
the address of the Representatives referred to in such Section 12 are set forth
at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us six (6) counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
2
<PAGE>
Very truly yours,
THE ST. PAUL COMPANIES, INC.
By:/s/ Bruce A. Backberg
------------------------------------
Name: Bruce A. Backberg
Title: Senior Vice President
Accepted as of the date hereof:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
THE WILLIAMS CAPITAL GROUP, L.P.
BY: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:/s/ Scott Huntsman
----------------------------
Name: Scott Huntsman
Title: Vice President
On behalf of each of the Underwriters
3
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
Donaldson, Lufkin & Jenrette
Securities Corporation.......................................$175,000,000
Lehman Brothers Inc.. ............................................. $50,000,000
The Williams Capital Group, L.P.................................... $25,000,000
Total.....................................................$250,000,000
============
4
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
8.125% Senior Notes due 2010
AGGREGATE PRINCIPAL AMOUNT:
$250,000,000
PRICE TO PUBLIC:
99.516% of the principal amount of the Designated Securities, plus accrued
interest, if any, from April 17, 2000.
PURCHASE PRICE BY UNDERWRITERS:
98.866% of the principal amount of the Designated Securities, plus accrued
interest from April 17, 2000.
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), April 17, 2000
INDENTURE:
Indenture dated March 31, 1990, between the Company and The
Chase Manhattan Bank (National Association), as Trustee
MATURITY:
April 15, 2010
INTEREST RATE:
8.125%
INTEREST PAYMENT DATES:
Semi-annually on April 15 and October 15 commencing on
October 15, 2000
1
<PAGE>
REDEMPTION PROVISIONS:
(A) The Designated Securities will be subject to redemption at any time at
the option of the Company, at a redemption price equal to the greater of
(i) 100% of the principal amount of the Designated Securities to be
redeemed or (ii) a "Make Whole" amount, calculated as described below,
plus, in either case, all interest that has accrued to the redemption date
on the redeemed Designated Securities; and, for the foregoing purposes,
the following terms shall have the meanings set forth below:
The "Make Whole" amount will equal the sum of the present values of the
Remaining Scheduled Payments discounted to such redemption date on a
semiannual basis, at a rate equal to the Treasury Rate plus 25 basis
points.
"Remaining Scheduled Payments" means the remaining scheduled payments
of the principal and interest that would be due after the redemption
date of a Designated Security if such Designated Security were not
redeemed; provided, however, that if the redemption date is not a
scheduled interest payment date, the amount of the next succeeding
scheduled interest payment on such Designated Security will be reduced
by the amount of interest accrued on such Designated Security to such
redemption date.
"Treasury Rate" means an annual rate equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue (as defined below),
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury
Price for the redemption date. The semiannual equivalent yield to
maturity will be computed as of the third Business Day immediately
preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by Donaldson, Lufkin & Jenrette Securities Corporation or an
affiliate as having a maturity comparable to the remaining term of the
Designated Securities that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of the Designated Securities.
2
<PAGE>
"Comparable Treasury Price" means the average of three Reference
Treasury Dealer Quotations obtained by the Trustee for such redemption
date.
"Reference Treasury Dealers" means Donaldson, Lufkin & Jenrette
Securities Corporation (so long as it continues to be a primary U.S.
Government securities dealer) and any other two Primary Treasury
Dealers chosen by the Company. If Donaldson, Lufkin & Jenrette
Securities Corporation ceases to be a primary U.S. Government
securities dealer, the Company will appoint in its place another
nationally-recognized investment banking firm that is a Primary
Treasury Dealer.
"Reference Treasury Dealer Quotation" means the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at
3:30 p.m. New York City time, on the third business day preceding such
redemption date.
and (B) notice of any redemption will be mailed at least 30 days (but
not more than 60 days) prior to the redemption date to each holder of
Designated Securities to be redeemed.
SINKING FUND PROVISIONS:
No sinking fund provisions
DEFEASANCE PROVISIONS:
Sections 1302 and 1303 of the Indenture shall apply to the Designated
Securities.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Offices of Sullivan & Cromwell, 125 Broad Street, New York,
New York.
ADDITIONAL CLOSING CONDITIONS:
None.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representative:
Donaldson, Lufkin & Jenrette Securities
Corporation
3
<PAGE>
Address for Notices, etc.:
277 Park Avenue
New York, New York 10172.
4
THIS SECURITY IS A SECURITY IN PERMANENT GLOBAL FORM AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ST. PAUL
COMPANIES, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE>
CUSIP NO. 792860AD0
No. FXR-1 $250,000,000
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THE ST. PAUL COMPANIES, INC.
8.125% SENIOR NOTE DUE 2010
SPECIFIED CURRENCY: U.S. DOLLARS
ORIGINAL
ISSUE DATE: INTEREST RATE: MATURITY DATE:
April 17, 2000 8.125% April 15, 2010
INTEREST PAYMENTS:
SEMI-ANNUALLY ON APRIL 15
AND OCTOBER 15, COMMENCING
ON OCTOBER 15, 2000
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<PAGE>
THE ST. PAUL COMPANIES, INC., a corporation duly organized and existing
under the laws of the State of Minnesota (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to CEDE & Co., as nominee for
the Depositary, or registered assigns, the principal sum of TWO HUNDRED AND
FIFTY MILLION DOLLARS ($250,000,000) on April 15, 2010, and to pay interest
thereon from April 17, 2000 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on April 15 and
October 15 in each year, commencing October 15, 2000, at the rate of 8.125% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Senior Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which shall
be the April 1 or October 1 (whether or not a Business Day (as defined below)),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Senior Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Senior Notes of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Senior Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of principal of (and premium, if any) and interest due on this
Senior Note will be made at the office or agency of the Company maintained for
that purpose in New York City, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
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<PAGE>
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SENIOR NOTE
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee or by its Authenticating Agent by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: THE ST. PAUL COMPANIES, INC.
By:____________________________
Name:
Title:
Attest:
- --------------------------
Corporate Secretary
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
By:__________________________
Authorized Officer
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<PAGE>
REVERSE OF SENIOR NOTE
THE ST. PAUL COMPANIES, INC.
8.125% SENIOR NOTE DUE 2010
This Senior Note is one of a duly authorized issue of securities of the
Company (herein called a "Security" or, collectively, the "Securities"), issued
and to be issued in one or more series under an Indenture, dated as of March 31,
1990 (herein called the "Indenture"), between the Company and The Chase
Manhattan Bank, as trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $250,000,000.
The Security (a) will be subject to redemption at any time at the
option of the Company, at a redemption price equal to the greater of (i) 100% of
the principal amount of the Securities to be redeemed or (ii) a "Make Whole"
amount, calculated as described below, plus, in either case, all interest that
has accrued to the redemption date on the redeemed Securities; and, for the
foregoing purposes, the following terms shall have the meanings set forth below:
The "Make Whole" amount will equal the sum of the present values of the
Remaining Scheduled Payments discounted to such redemption date on a
semiannual basis, at a rate equal to the Treasury Rate plus 25 basis
points.
"Remaining Scheduled Payments" means the remaining scheduled payments
of the principal and interest that would be due after the redemption
date of a Security if such Security were not redeemed; provided,
however, that if the redemption date is not a scheduled interest
payment date, the amount of the next succeeding scheduled interest
payment on such Security will be reduced by the amount of
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<PAGE>
interest accrued on such Security to such redemption date.
"Treasury Rate" means an annual rate equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue (as defined below),
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury
Price for the redemption date. The semiannual equivalent yield to
maturity will be computed as of the third Business Day immediately
preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by Donaldson, Lufkin & Jenrette Securities Corporation or an
affiliate as having a maturity comparable to the remaining term of the
Securities that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of the Securities.
"Comparable Treasury Price" means the average of three Reference
Treasury Dealer Quotations obtained by the Trustee for such redemption
date.
"Reference Treasury Dealers" means Donaldson, Lufkin & Jenrette
Securities Corporation (so long as it continues to be a primary U.S.
Government securities dealer) and any other two Primary Treasury
Dealers chosen by the Company. If Donaldson, Lufkin & Jenrette
Securities Corporation ceases to be a primary U.S. Government
securities dealer, the Company will appoint in its place another
nationally-recognized investment banking firm that is a Primary
Treasury Dealer.
"Reference Treasury Dealer Quotation" means the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee
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<PAGE>
by such Reference Treasury Dealer at 3:30 p.m. New York City time, on
the third business day preceding such redemption date.
and (b) notice of any redemption will be mailed at least 30 days (but
not more than 60 days) prior to the redemption date to each holder of
Securities to be redeemed.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor and for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(including this Security and the interests represented hereby) may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent of waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange
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<PAGE>
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provi sion of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed.
This Security may not be transferred except as a whole by a nominee of
the Depositary Trust Company to the Depositary Trust Company or another nominee
of the Depositary Trust Company or by the Depositary Trust Company or any such
nominee to a successor of the Depositary Trust Company or a nominee of such
successor.
The Securities of this Series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of a like tenor, of a different
authorized denomination, as requested by the Holder surrendering same.
No service charge shall be made for any reg istration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security of this series for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture and
not herein otherwise defined shall have the meanings assigned to them in the
Indenture.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JETTED TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNI GIFT MIN ACT - _________Custodian__________
(Cut) (Minor)
Uniform Gifts to Minors Act
----------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
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<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(PLEASE INSERT SOCIAL SECURITY OR
IDENTIFYING NUMBER OF ASSIGNEE)
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated:____________ ___________________________________
NOTE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular,
without alteration or enlargement or any change whatever.
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