Underwriting Agreement dated as of December 18, 2012
Exhibit 1.1
STIFEL FINANCIAL CORP.
(a Delaware corporation)
$150,000,000
5.375% Senior Notes due 2022
UNDERWRITING AGREEMENT
Dated: December 18, 2012
STIFEL FINANCIAL CORP.
(a Delaware corporation)
$150,000,000
5.375% Senior Notes due 2022
UNDERWRITING AGREEMENT
December 18, 2012
Stifel, Nicolaus & Company, Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. LLC
as Representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, NY 10036
Ladies and Gentlemen:
Stifel Financial Corp., a Delaware corporation (the “Company”), confirms its agreement with Merrill Lynch, Pierce, Fenner and Smith Incorporated and each of the other Underwriters named in
Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Stifel, Nicolaus & Company, Incorporated, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC are acting as representatives (in such capacity, the “Representatives”), with respect to the sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of $150,000,000 aggregate principal of amount of the Company’s 5.375% Senior Notes due 2022 (the “Securities”). The Securities are to be issued pursuant to a supplemental indenture, to
be dated as of December 21, 2012 (the “Supplemental Indenture”), to the indenture, dated as of January 23, 2012 (together with the Supplemental Indenture, the “Indenture”) between the Company and U.S. Bank National
Association, as Trustee (the “Trustee”).
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (together with the rules and
regulations promulgated thereunder, the “1939 Act”).
The Company has filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (No. 333-178969), including the related preliminary prospectus or prospectuses, which registration statement became effective upon filing under Rule 462(e)
of the rules and regulations of the Commission (the “1933 Act Regulations”) under the 1933 Act. Such registration statement covers the registration of the Securities under the 1933 Act. Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations.
Any information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of and included in such registration statement pursuant to Rule 430B is referred to as
“Rule 430B Information.” Each
prospectus used in connection with the offering of the Securities that omitted Rule 430B Information is herein called a “preliminary prospectus.” Such registration statement, at any
given time, including the amendments thereto to such time, the exhibits and any schedules thereto to such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents
otherwise deemed to be a part thereof or included therein by 1933 Act Regulations, is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form first furnished to the Underwriters for use in connection with the offering of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at the time of the execution of this Agreement and any preliminary prospectuses that form a part thereof, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is
“contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as
amended (the “1934 Act”), which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof,
the Applicable Time referred to in Section 1(a)(ii) hereof and as of the Closing Time referred to in Section 2(c) hereof and agrees with each Underwriter, as follows:
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the Original Registration Statement,
(B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the 1933 Act Regulations and (D) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”), including
not having been and not being an “ineligible issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Securities, since their registration on the
Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the
1933 Act Regulations objecting to the use of the automatic shelf registration statement form.
At the time of
filing the Original Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
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(ii) Registration Statement, Prospectus and Disclosure at Time of
Sale. The Original Registration Statement became effective upon filing under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”) on January 11, 2012, and any post-effective amendment thereto also became effective upon filing
under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning,
for this paragraph only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise complied with the
requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each amendment thereto became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration Statement complied and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not 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.
Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Each preliminary prospectus (including the prospectus or
prospectuses filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued
at or prior to the Applicable Time (as defined below) and the Statutory Prospectus (as defined below) and the information included on Schedule B hereto, all considered together (collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
As used in
this subsection and elsewhere in this Agreement:
“Applicable Time” means 2:15 p.m. (Eastern Time) on
December 18, 2012 or such other time as agreed by the Company and the Representatives.
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“Issuer Free Writing Prospectus” means any “issuer free
writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of
the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), or
(iv) the Final Term Sheet (as defined below).
“Issuer General Use Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule B hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer
General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus
relating to the Securities that is included in the Registration Statement immediately prior to that time, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public
offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives as described in Section 3(e), did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or
modified.
The representations and warranties in this subsection shall not apply to (i) the Statement of
Eligibility (Form T-1) of the Trustee under the 1939 Act or (ii) statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(iii)
Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), and, when read together with the other information in the
Prospectus, (a) at the time the Original Registration Statement became effective, (b) at the earlier of the time the Prospectus was first used and the date and time of the first contract of sale of Securities in this offering and
(c) at the Closing Time, did not 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.
(iv) Independent Accountants of Company. The accountants who certified the financial statements and supporting
schedules of the Company included or incorporated by reference in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) Independent Accountants of KBW. The accountants who certified the financial statements and supporting schedules
of KBW, Inc. (“KBW”) included or incorporated by reference in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
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(vi) Financial Statements; Non-GAAP Financial Measures. The financial
statements of the Company included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial
position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules of the Company, if any, present fairly, in all
material respects, in accordance with GAAP the information required to be stated therein. The financial statements of KBW included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly, in all material respects, the financial position of KBW and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows
of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved. The supporting schedules of KBW, if any,
present fairly, in all material respects, in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information of the Company and KBW, respectively included in the Registration
Statement, the General Disclosure Package and the Prospectus presents fairly, in all material respects, the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the
Registration Statement. The assumptions underlying the pro forma financial information included or incorporated by reference in each of the Registration Statement, the General Disclosure Package and the Prospectus are reasonable, have been properly
applied to the historical amounts in the compilation of those statements and are set forth in each of Registration Statement, the General Disclosure Package and the Prospectus; and the pro forma financial information and the related notes included
or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus was prepared in accordance with the Commission’s rules and guidance with respect to pro forma financial information at the time such
information was filed with the Commission. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General
Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. Any disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such
term is defined by the rules and regulations of the Commission) comply with Regulation G under the 1934 Act and Item 10 of Regulation S-K of the 1933 Act Regulations, to the extent applicable. The interactive data in eXtensible Business
Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
(vii) No Material Adverse Change in
Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries, considered as
one enterprise, and (C) except for dividends on the Common Stock as described in the Registration Statement in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
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(viii) Good Standing of the Company. The Company has been duly
incorporated and is validly existing and in good standing under the laws of the jurisdiction in which it has been chartered and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in
the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(ix) Good Standing of Subsidiaries. Each subsidiary listed on Schedule D hereto
(each a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly formed and is validly existing as an entity in good standing under the laws of the jurisdiction of its formation, has full power and authority to own,
lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified as a foreign entity to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all of the issued and outstanding capital stock or other ownership interest of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any Subsidiary was issued in violation
of the preemptive or similar rights of any securityholder of such Subsidiary. The only subsidiaries, direct and indirect, of the Company are the subsidiaries listed on Schedule D hereto.
(x) Capitalization. The authorized, issued and outstanding capital stock of the Company is as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration
Statement, the General Disclosure Package and the Prospectus). The shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of
capital stock was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(xi) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xii) Authorization of the Indenture. The Base Indenture has been duly authorized executed and delivered by the
Company and constitutes a valid and binding agreement of the Company and the Supplemental Indenture has been duly authorized by the Company and, when duly executed and delivered by the Company and the Trustee, will constitute a valid and binding
agreement of the Company, in each case enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Indenture has been qualified under the 1939 Act.
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(xiii) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in
this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(xiv) Description of the Securities and the Indenture. The Securities and the Indenture will conform in all material respects to the respective statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(xv) Absence of Defaults and Conflicts. (a) Neither the Company nor any of its subsidiaries is in violation of
its respective charter, by-laws or similar governing instruments or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject
(collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; (b)(i) and the execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the
Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), (ii) nor will such action result in
any violation of the provisions of the charter, by-laws or similar governing instruments of the Company or any subsidiary, (iii) nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their respective assets, properties or operations (except for such violations that would not
result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xvi) Absence of Labor Dispute. No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(xvii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any subsidiary, which is required to be disclosed in the Registration Statement (other
than as
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disclosed therein), or which would reasonably be expected to result in a Material Adverse Effect, or which might materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party
or of which any of their respective property or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material
Adverse Effect.
(xviii) Accuracy of Exhibits. There are no contracts or documents which are required to
be described in the Registration Statement, the General Disclosure Package, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
(xix) Possession of Intellectual Property. Except as disclosed in the Prospectus, the Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xx) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities; the Company will cause its affiliates to refrain from taking, directly or indirectly, any action which is designed to or which would be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Securities.
(xxi)
Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state securities laws.
(xxii) Possession of
Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and neither the
Company has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
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(xxiii) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by them, respectively, and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (b) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure Package and the Prospectus, are in full force and effect, and neither the Company nor any subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(xxiv) Investment Company
Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the
Prospectus will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxv) Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the
Prospectus and except as would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxvi) Accounting Controls and Disclosure Controls. The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that (1) transactions are executed in accordance with management’s general or specific authorization; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (3) access to assets is permitted only in accordance with management’s general or specific authorization; (4) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
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appropriate action is taken with respect to any differences; and (5) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the
Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (II) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.
The Company and its consolidated subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules
and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxvii) Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the
Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(xxviii)
Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act to the knowledge of the Company, and the Company is not the subject of
a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
(xxix) Payment of Taxes. All United States federal income tax returns of the Company and its subsidiaries required
by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves
have been provided. The United States federal income tax returns of the Company through the fiscal year ended December 31, 2007 have been settled and no assessment in connection therewith has been made against the Company. The Company and its
subsidiaries have either filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law, or have obtained extensions for the filing of such returns, except insofar as the failure to
file such returns or obtain such extensions would not result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or pursuant to any assessment received by them, except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided or where the failure to pay in each case would not reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of
any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would
not result in a Material Adverse Effect.
(xxx) Insurance. The Company and its subsidiaries carry or are
entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such
insurance is in full force and effect. The Company has no reason to believe that it or any subsidiary will not be able (A) to renew its existing insurance coverage as and when
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such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not
result in a Material Adverse Effect. Neither of the Company or any of its subsidiary has been denied any insurance coverage which it has sought or for which it has applied.
(xxxi) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration
Statement, the General Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and, where required, the Company has obtained the written consent to the use of such data from
such sources.
(xxxii) Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxiii) Money Laundering Laws. The operations of the Company are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxxiv) OFAC. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or person acting on behalf of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(xxxv) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the 1933 Act.
(xxxvi) Merger Agreement. The Agreement and Plan of Merger dated as of November 5, 2012 among the Company,
SFKBW One, Inc., SFKBW Two, LLC and KBW (the “Merger Agreement”) constitutes the valid and binding agreement of the Company and KBW, enforceable in accordance with its terms; and the representations, warranties and agreements made by KBW
to the Company in the Merger Agreement are true and correct in all material respects.
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(b) Officer’s Certificates. Any certificate signed by any officer of the Company
or any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth in Schedule A, the aggregate principal amount
of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof,
subject to such adjustments as the Representatives in their sole discretion shall make to ensure that any sales or purchases are in authorized denominations.
(b) Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times
Square, New York, New York 10036, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time
and date of payment and delivery being herein called “Closing Time”).
Payment shall be made to the Company by wire
transfer of immediately available funds to bank accounts designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of certificates or book entry credits for the Securities to be purchased by
them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. Any of the
Representatives, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations;
Registration. Certificates for the Securities shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Time. The certificates for the Securities
will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as set forth in subsections
(a) through (l) below:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing
Fees. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement or new registration statement relating to the Securities shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise
deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
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qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to
Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect
the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) (i) of the 1933 Act
Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents. The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new
registration statement relating to the Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became
effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act
Regulations within 48 hours prior to the execution of this Agreement; the Company will give the Representatives notice of its intention to make any such filing from the execution of this Agreement to the Closing Time and will furnish the
Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Original Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Original Registration Statement and of
each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of
Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If
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at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or to file a new registration statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, the Company will use its best efforts to have
such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Securities) and the Company will furnish to the Underwriters such number of copies of
such amendment, supplement or new registration statement as the Underwriters may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Securities) or the Statutory Prospectus or any preliminary prospectus or
included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect for a period of not less than one
year from the date hereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings
statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Listing. The Company will use its best efforts to effect the listing of the Securities as specified in the Prospectus.
(j) Clear Market. For a period of thirty days after the date hereof, the Company will not, without the prior written
consent of the Representatives, directly or indirectly issue, offer, sell, offer to sell, or grant any option to sell, pledge, transfer or otherwise dispose of any debt securities or securities exchangeable for or convertible into debt securities by
the Company, except for any securities issued by the Company pursuant to the Merger Agreement or issued by the Company to fund the purchase price of KBW.
(k) Reporting Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
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(l) Final Term Sheet; Issuer Free Writing Prospectuses. The Company will prepare a
final term sheet (the “Final Term Sheet”), in the form set forth in Schedule C hereto, reflecting the final terms of the Securities, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as
an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof; provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a
reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall object. The Company represents and agrees that, unless it obtains the prior consent
of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus
consented to by the Representative or by the Company and the Representative, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat
each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely
filing with the Commission where required, legending and record keeping.
SECTION 4. Payment of
Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any Agreement among Underwriters and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters,
(iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters
of copies of each preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to
investors, (vii) the preparation, printing and delivery to the Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee and expenses of any transfer agent or registrar for the
Securities and any fees of any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the 1934 Act) in connection with the Securities, (ix) the costs and expenses of the Company relating to
investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered in connection
with the road show, (x) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities, and (xi) the fees and
expenses incurred in connection with the listing of the Securities.
(b) Termination of Agreement. If this Agreement is
terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i) or Section 11 hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
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SECTION 5. Conditions of Underwriters’ Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing Fee. The Registration Statement has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without
reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees
relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if
applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Bryan Cave LLP, counsel for the Company, and David M. Minnick, General Counsel, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit A-1, Exhibit A-2 and Exhibit A-3 hereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall have received the favorable opinion, dated as
of Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, in form and substance reasonably satisfactory to the Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters.
(d) Officers’ Certificate. At Closing Time, there shall not have been, since the date hereof, since
the Applicable Time or since the respective dates as of which information is given in the Prospectus or the General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company or such other officer(s) of the Company acceptable to the Representatives, dated as of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, contemplated by the Commission.
(e) Chief Financial Officer’s
Certificate. At the time of the execution of this Agreement, the Representatives shall have received from the Chief Financial Officer of the Company an officer’s certificate dated such date, in the form set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request. At Closing Time, the Representatives shall have received from the Chief Financial Officer of the Company a certificate dated as of Closing Time confirming that the
certificate delivered by such officer at the time of the execution of this Agreement remains true and correct as of Closing Time.
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(f) Accountant’s Comfort Letter for the Company. At the time of the execution of
this Agreement, the Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the
other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and
its consolidated subsidiaries contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter
for the Company. At Closing Time, the Representatives shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection
(f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time.
(h) Accountant’s Comfort Letter for KBW. At the time of the execution of this Agreement, the Representatives shall have received from KPMG LLP a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information of KBW and its consolidated subsidiaries contained in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter for KBW. At Closing Time, the Representatives shall have received from KPMG LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to
Closing Time.
(j) Maintenance of Rating. Since the execution of this Agreement, there shall not have been any decrease
in the rating of any of the Company’s securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the 1934 Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k)
Additional Documents. At Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives
by notice to the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, as such
term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
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(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430B Information, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or any “road show” (as defined in Rule 433 under the 1933 Act) not constituting an Issuer Free Writing Prospectus (a “Non-IFWP Road Show”)
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430B Information, or any preliminary prospectus, any Issuer Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto) or any Non-IFWP Road Show.
The Company hereby acknowledges that
the only information that the Underwriters have furnished to the Company expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or
any Non-IFWP Road Show are the statements set forth in the sixth, tenth, eleventh and twelfth paragraphs under the caption “Underwriting” in the Prospectus concerning selling concession, stabilization and short sales by the Underwriters
(the “Underwriter Information”).
(b) Indemnification of Company and Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430B Information or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c) Actions against Parties;
Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve
18
such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding 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)
Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If
the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or
omissions, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each
case as set forth on the cover of the Prospectus bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
19
The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 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 Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the 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 any 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 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All representations, warranties and
agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on
behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) or General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange or the Chicago Stock Exchange, or if trading generally on the NYSE Amex Equities or the
New York Stock Exchange or in the NASDAQ Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been
20
fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any other governmental authority, or (iv) a
material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (v) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at Closing
Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased on such date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability
in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, either
(i) the Representatives or (ii) the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents
or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Company. If the Company shall fail at Closing Time to sell the number of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without
any liability on the part of any nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other
provision of this Agreement, from the commencement of discussions with respect to the transactions contemplated hereby, the Company (and each employee, representative or other agent of the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure (as such terms are used in Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations promulgated thereunder) of the transactions contemplated by this Agreement and all
materials of any kind (including opinions or other tax analyses) that are provided relating to such tax treatment and tax structure.
21
SECTION 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives at:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York, NY 10020
Facsimile: (212) 901-7881
Attention: High Grade Debt Capital
Markets Transaction Management/Legal
with a copy to:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, NY 10036
Facsimile: (212) 230-8730
Attention: ECM Legal
Notices to the Company shall be directed to
it at:
Stifel Financial Corp.
501 N. Broadway
Saint Louis, Missouri 63102
Attention: Ronald J. Kruszewski,
Chairman, President and CEO
Rick E. Maples, Senior Managing Director, Investment Banking.
SECTION 14. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase
and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Company or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 15. Integration. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
22
SECTION 16. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company
and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 17. Trial by Jury. The Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
SECTION 18. GOVERNING LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION
19. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 20. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and
the same Agreement.
SECTION 21. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
23
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
|
|
|
|
|
| Very truly yours,
STIFEL FINANCIAL CORP. |
|
|
| By |
|
/s/ James M. Zemlyak |
|
|
Name: |
|
James M. Zemlyak |
|
|
Title: |
|
Senior Vice President and Chief Financial Officer |
[Underwriting Agreement Signature Page]
24
|
|
|
| CONFIRMED AND ACCEPTED, as of the date first above written: STIFEL, NICOLAUS & COMPANY, INCORPORATED |
|
|
| By: |
|
/s/ Rick E. Maples |
|
|
Authorized Signatory |
|
| MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED |
|
|
| By: |
|
/s/ Matt Basler |
|
|
Authorized Signatory |
|
| MORGAN STANLEY & CO. LLC |
|
|
| By: |
|
/s/ Yurij Slyz |
|
|
Authorized Signatory |
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
[Underwriting Agreement Signature Page]
25
SCHEDULE A
The initial public offering price of the Securities shall be 100% of the principal amount thereof, plus accrued interest, if any, from the date of issuance.
The purchase price to be paid by the Underwriters for the Securities shall be 97% of the principal amount thereof.
The interest rate on the Securities shall be 5.375% per annum.
We may redeem the notes in whole or in part on or after December 31, 2015 at our option at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest to the date of
redemption.
|
|
|
|
|
| Name of Underwriter |
|
Principal
Amount of
Securities |
|
| Stifel, Nicolaus & Company, Incorporated |
|
$ |
42,000,000 |
|
| Merrill Lynch, Pierce, Fenner & Smith Incorporated |
|
|
42,000,000 |
|
| Morgan Stanley & Co. LLC |
|
|
42,000,000 |
|
| Keefe, Bruyette & Woods, Inc. |
|
|
12,000,000 |
|
| JMP Securities LLC |
|
|
7,500,000 |
|
| U.S. Bancorp Investments, Inc. |
|
|
4,500,000 |
|
| Total |
|
$ |
150,000,000 |
|
|
|
|
|
|
Sch A-1
SCHEDULE B
Free Writing Prospectuses
Final Term Sheet
Sch B-1
SCHEDULE C
Free Writing Prospectus
Filed pursuant to Rule 433
Registration Number 333-178969
Stifel Financial Corp.
$150,000,000
5.375% Senior Notes due December 2022
Term Sheet
December 18, 2012
|
|
|
| Issuer: |
|
Stifel Financial Corp. (NYSE: SF) |
| Title of Security: |
|
5.375% Senior Notes due December 2022 |
| Type of Offering: |
|
SEC Registered |
| Principal Amount: |
|
$150,000,000 |
| Trade Date: |
|
December 18, 2012 |
| Settlement Date (T+3): |
|
December 21, 2012 |
| Maturity Date: |
|
December 31, 2022 |
| Optional Redemption: |
|
Par call on or after December 31, 2015 |
| Expected Ratings: |
|
[Intentionally omitted] |
| Coupon: |
|
5.375% per annum |
| Interest Payment Dates: |
|
Each January 15, April 15, July 15 and October 15 |
| First Interest Payment Date: |
|
April 15, 2013 |
| Price to Public: |
|
$25.00 per Security |
| Underwriters’ Discount: |
|
$0.75 per Security |
| Price to Issuer: |
|
$24.25 |
| Proceeds, Before Expenses: |
|
$145,500,000 |
| CUSIP / ISIN: |
|
860630 300 / US8606303001 |
| Proposed Listing: |
|
NYSE |
| Joint Book-Running Managers: |
|
Stifel, Nicolaus & Company, Incorporated Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. LLC |
| Co-Managers: |
|
Keefe, Bruyette & Woods, Inc. JMP Securities LLC U.S. Bancorp Investments, Inc. |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time.
The issuer has filed a registration statement, including a prospectus, with the SEC for the offering to which
this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Stifel,
Nicolaus & Company, Incorporated at 1-443-224-1988; Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at 1-800-294-1322 or Morgan Stanley & Co. LLC toll-free at 1-866-718-1649.
Sch C-1
This pricing term sheet supplements the preliminary form of prospectus supplement issued by Stifel
Financial Corp. on December 18, 2012 relating to its Prospectus dated January 11, 2012.
Sch C-2
SCHEDULE D
List of Subsidiaries
Subsidiaries of the Company
Stifel, Nicolaus & Company, Incorporated
Stifel Nicolaus Insurance Agency, Incorporated
Century Securities Associates, Inc.
CSA
Insurance Agency, Incorporated
Stifel Asset Management Corp.
Hanifen, Imhoff Inc.
Ryan Beck Holdings, LLC
Stifel Bank & Trust
Stifel Bank
Community Development Corporation
Stifel Bank – CDC – 501 N. Broadway, Inc.
Choice Financial Partners, Inc.
Butler Wick & Co., Inc.
Broadway Air Corp.
Stifel Financial Capital
Trust II
Stifel Financial Capital Trust III
Stifel Financial Capital Trust IV
Missouri Valley Partners
Stifel Nicolaus Canada Inc.
Stifel Nicolaus
Europe Limited
Stone & Youngberg LLC
Stifel Trust Company
Thomas Weisel Partners Group, Inc.
Thomas Weisel Partners LLC
Sch D-1
Thomas Weisel Capital Management LLC
Thomas Weisel Venture Partners LLC
Thomas Weisel Healthcare Venture Partners LLC
Thomas Weisel Global Growth Partners LLC
Thomas
Weisel Asset Management LLC
Timberline Asset Management LLC
Thomas Weisel Partners Insurance Services LLC
TWP Holdings Company (Canada), Inc.
TWP Acquisition Company (Canada), Inc.
Thomas
Weisel Capital Corporation
Sch D-2
Exhibit A-1
FORM OF OPINION OF BRYAN CAVE LLP, COUNSEL FOR THE COMPANY
TO BE DELIVERED
PURSUANT TO SECTION 5(b)
1. Based solely on a recently dated good standing certificate from the Secretary of State of the
State of Delaware the Company is validly existing as a corporation, in good standing under the laws of the State of Delaware, with all requisite corporate power and authority to own, lease and operate its properties to conduct its business as
described in the Prospectus and the General Disclosure Package and to enter into and perform its obligations under the Underwriting Agreement.
2. Based solely on recently dated good standing certificates from the Secretaries of State of the applicable jurisdictions, the Company is duly qualified to transact business and is in good standing as a
foreign corporation in the jurisdictions set forth on Appendix I attached hereto.
3. Based solely on recently dated good
standing certificates from the applicable jurisdictions, each subsidiary of the Company set forth on Appendix II hereto is validly existing as the type of entity set forth on Appendix II hereto, in good standing under the laws of the jurisdiction of
its incorporation or formation as set forth on Appendix II hereto, with all applicable entity power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and the General Disclosure Package.
4. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
5. The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
6. The Securities are in the form contemplated by the
Indenture, have been duly authorized, executed, issued and delivered by the Company and, assuming that the Securities have been duly authenticated by the Trustee in the manner described in its certificate delivered to you on the date hereof (which
fact, with your permission, we have not determined by an inspection of the Securities), the Securities constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to
the benefits of the Indenture.
7. The Indenture has been duly qualified under the 1939 Act (other than the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which we express no opinion), and the rules and regulations of the Commission promulgated thereunder.
8. The Securities and the Indenture conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
9. We confirm to you that: (a) the Registration Statement became effective under the Securities Act of 1933,
as amended (the “Securities Act”); and (b) the Prospectus was filed with the Commission pursuant to Rule 424(b)(3) under the Securities Act on December 18, 2012; and, based solely upon an oral acknowledgment by the staff of the
Commission, no stop order suspending the
A-1-1
effectiveness of the Registration Statement has been issued under the Securities Act, and, to our knowledge, no proceedings therefor have been initiated or threatened by the Commission. In
addition, based on the foregoing, we confirm to you that (i) the Prospectus has been filed with the Commission within the time period required by Rule 424 of the Rules and Regulations and (ii) any required filing of each Issuer General Use
Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations have been filed with the Commission within the time period required by Rule 433(d) of the Rules and Regulations.
10. Each of the Registration Statement and the Prospectus (other than (i) the documents incorporated by reference in the
Registration Statement and the Prospectus and (ii) the financial statements and related notes and schedules and the other financial and accounting data included or incorporated by reference therein, or omitted therefrom as to which we express
no opinion), as of the Effective Date and as of its date, as applicable, appears on its face to comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission promulgated
thereunder.
11. The documents incorporated by reference in the Prospectus and the General Disclosure Package, as of the date
of the Prospectus Supplement (except for the financial statements and related notes and schedules and other financial and accounting data included or incorporated by reference therein or omitted therefrom as to which we express no opinion), when
they were filed with the Commission, appeared on their face to comply as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations of the Commission promulgated thereunder.
12. The statements in the Prospectus and the General Disclosure Package under the caption “Description of Notes,”
“Description of Certain Indebtedness,” “Description of the Securities,” and “United States Federal Income Tax Considerations” and in the Registration Statement under Item 15, insofar as such statements constitute
summaries of the terms and provisions of the documents or matters of law referred to therein, are accurate in all material respects (except for the financial statements and related notes and schedules and other financial and accounting data included
or incorporated by reference therein or omitted therefrom, as to which we express no opinion).
13. No consent, approval,
authorization or other action by, and no notice to or filing with, any federal or Missouri state or New York state or Delaware state governmental authority or regulatory body (with respect to Delaware, solely in respect of the General Corporation
Law of the State of Delaware) that we, based on our experience, recognize as applicable to the Company in a transaction of this type, is required for the due execution, delivery and the consummation by the Company of its obligations under the
Underwriting Agreement (including the offering, issuance, sale and delivery of the Securities and the use of the proceeds thereof as described in the Prospectus and the General Disclosure Package under the caption “The Offering—Use of
Proceeds”) or the due execution, delivery or performance of the Indenture by the Company, except for the filings and other actions required pursuant to federal and state securities or blue sky laws, or the rules of the Financial Industry
Regulatory Authority, as to which we express no opinion.
14. The execution and delivery by the Company of the Underwriting
Agreement, the Indenture and the Securities and the consummation by the Company of the transactions contemplated in the Underwriting Agreement (including the offering, issuance, sale and delivery of the Securities and the use of the proceeds thereof
as described in the Prospectus and the General Disclosure Package under the caption “The Offering—Use of Proceeds”) do not and will not, whether with or without the giving of notice or lapse of time or both, result in (a) any
violation by the Company of (i) the provisions of the Charter or Bylaws, (ii) any provision of applicable law that we, based on our experience, recognize as applicable to the Company in a transaction of this type, or (iii) to our
knowledge, any order, writ,
A-1-2
judgment or decree of any U.S. federal or Missouri state court or governmental authority or regulatory body having jurisdiction over the Company or any of its subsidiaries or any of their
material properties that names or is specifically directed to the Company or any such subsidiary, or (b) a breach or default or require the creation or imposition of any security interest or lien upon any of the Company’s properties
pursuant to any material agreement, contract or instrument known to us to which the Company is a party or by which it is bound. For purposes of the foregoing, we have assumed that the only material agreements, contracts or instruments to which the
Company is a party or by which it is bound are those listed as exhibits to the Registration Statement or the documents incorporated by reference therein.
15. The Company is not, and upon the issuance and sale of the Securities as contemplated by the Underwriting Agreement and the application of the net proceeds therefrom as described under the caption
“The Offering—Use of Proceeds” in the Prospectus and the General Disclosure Package will not be, an “investment company” under the Investment Company Act of 1940, as amended.
During the preparation of the Registration Statement, the General Disclosure Package and the Prospectus, we have participated in
conferences with officers and other representatives of the Company, representatives of the independent accountants for the Company and you and your representatives and counsel, at which conferences the contents of the Registration Statement, the
General Disclosure Package and the Prospectus and related matters were discussed, reviewed and revised. Although we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of such contents (except as
expressly indicated in paragraph 12 above), and have not made any independent investigation thereof, on the basis of the information which was developed in the course thereof, considered in light of our understanding of applicable law and the
experience we have gained through our practice thereunder, this is to advise you that nothing has come to our attention which causes us to believe that (a)(i) at the time the Registration Statement became effective and as of the date of the
Prospectus Supplement, the Registration Statement, (ii) as of the Applicable Time, the General Disclosure Package or (iii) the Prospectus or any supplement thereto as of its date (except in the case of each of clauses (i), (ii) and
(iii), as to financial statements and related notes and schedules and the other financial and accounting data derived from such financial statements and related notes and schedules included or incorporated by reference therein, as to which we
express no belief), contained any 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 (and with respect to the General Disclosure Package and the
Prospectus or any supplement thereto, in the light of the circumstances under which they were made), not misleading, or (b) at the date hereof, the Prospectus or any supplement thereto (except as aforesaid) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made, not misleading.
A-1-3
Exhibit A-2
FORM OF OPINION OF BRYAN CAVE LLP, ENGLAND AND WALES COUNSEL FOR THE
COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
1. SNEL has been duly incorporated under the laws of England and Wales.
2. Based
solely upon the good standing certificates issued by the Registrar of Companies and the enquiry to the Central Registry of Winding Up Petitions, SNEL has been in continuous and unbroken existence since, respectively, the dates of their
incorporation, no action is currently being taken by the Registrar of Companies for striking SNEL off the register and dissolving it as defunct, SNEL is not in liquidation or subject to an administration order and no receiver or manager of
SNEL’s property has been appointed.
3. SNEL has the corporate power to own, lease and operate its properties and to
conduct its business as described in the Prospectus and the General Disclosure Package.
A-2
Exhibit A-3
FORM OF OPINION OF DAVID M. MINNICK, GENERAL COUNSEL, COUNSEL FOR THE
COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
1. The Securities conform to all statements relating thereto contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus and such description
conforms to the rights set forth in the instruments defining the same.
2. Except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each subsidiary, to the best of my knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. Each subsidiary is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required. The issued and outstanding capital stock of each subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable; none of the outstanding shares of capital stock of any subsidiary was issued in violation of the statutory preemptive or any contractual preemptive or similar rights of any
security holder of such subsidiary arising under the laws of the state of Missouri, or the certificate of incorporation, certificate of formation, bylaws, operating agreement or equivalent organizational documents of any such subsidiary or any
material agreement, contract or instrument listed as an exhibit to the Registration Statement or the documents incorporated by reference therein.
3. The documents incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package and any further amendment or supplement to any such incorporated documents made
by the Company as of the date hereof (except for the financial statements and related notes and schedules and other financial and accounting data included or incorporated by reference therein or omitted therefrom, as to which I express no opinion)
when they were filed with the Commission, appear on their face to comply as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations of the Commission promulgated thereunder.
4. Except as referred to in Registration Statement, the Prospectus or the General Disclosure Package, I hereby confirm to you that, to
the best of my knowledge, no action or proceeding against and naming the Company or any subsidiary is pending or overtly threatened to the Company or any subsidiary before any court, governmental authority or arbitrator, which would reasonably be
expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations thereunder.
5. All descriptions in the Registration Statement and the Prospectus of contracts and other documents to which the Company or its
Subsidiaries are a party are accurate in all material respects; to the best of my knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits to the Registration Statement or to the documents incorporated by reference to the Registration Statement other than those described or referred to therein or filed or incorporated by reference
as exhibits thereto.
6. The execution and delivery by the Company of the Underwriting Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated in the Underwriting
A-3-1
Agreement (including the offering, issuance and delivery of the Securities and the use of the proceeds thereof as described in the Prospectus and the General Disclosure Package under the caption
“The Offering—Use of Proceeds”) do not and will not result in (a) any violation by the Company of (i) the provisions of the Charter or Bylaws, (ii) the provisions of the Charter or Bylaws of any subsidiary,
(iii) any provision of applicable law that I, based on my experience, recognize as applicable to the Company in a transaction of this type, or (iv) any order, writ, judgment or decree of any U.S. federal or Missouri state court or
governmental authority or regulatory body having jurisdiction over the Company or any of its Subsidiaries or any of their properties, or (b) a breach or default or require the creation or imposition of any security interest or lien upon any of
the Company’s or any subsidiary’s properties pursuant to any material agreement, contract or instrument listed as an exhibit to the Registration Statement or the documents incorporated by reference therein.
During the preparation of the Registration Statement, the General Disclosure Package and the Prospectus, I have participated in
conferences with other officers and other representatives of the Company, representatives of the independent accountants for the Company and you and your representatives and counsel, at which conferences the contents of the Registration Statement,
the General Disclosure Package and the Prospectus and related maters were discussed, reviewed and revised. Although I am not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of such contents, and have
not made any independent investigation thereof, on the basis of the information which was developed in the course thereof, considered in light of my understanding of applicable law and the experience I have gained through my practice thereunder,
this is to advise you that nothing has come to my attention which causes me to believe that (a)(i) at the time the Registration Statement became effective and as of the date of the Prospectus Supplement, the Registration Statement, (ii) as of
the Applicable Time, the General Disclosure Package, or (iii) the Prospectus or any supplement thereto as of its date (except in the case of each of clauses (i), (ii) and (iii), as to financial statements and related notes and schedules
and the other financial and accounting data derived from such financial statements and related notes and schedules included or incorporated by reference therein, as to which I express no belief), contained any 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 (and with respect to the General Disclosure Package and the Prospectus or any supplement thereto, in the light of the circumstances under
which they were made), not misleading, or (b) at the date hereof, the Prospectus or any supplement thereto (except as aforesaid) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under which they were made, not misleading.
A-3-2
Exhibit B
Form of Chief Financial Officer’s Certificate pursuant to Section 5(e)
STIFEL FINANCIAL CORP.
MANAGEMENT CERTIFICATE
December 18, 2012
Reference is made to the comfort letter of Ernst & Young LLP (“E&Y”) dated December 18, 2012. Stifel, Nicolas & Company, Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as Representatives of the Underwriters (the “Underwriters”) in a public offering (the “Offering”) of $150,000,000 aggregate principal amount of 5.375%
Senior Notes due 2022 of Stifel Financial Corp., a Delaware corporation (the “Company”), have asked the Company to supplement the information provided by E&Y in its comfort letter.
We, Ronald J. Kruszewski, Chairman, President and Chief Executive Officer of the Company, and James M. Zemlyak, Senior Vice President and
Chief Financial Officer of the Company, each do hereby determine and certify, on behalf of the Company, as follows:
| 1. |
I am familiar with the accounting, operations and records systems of the Company. I have supervised the compilation of and reviewed (a) the Company’s Annual
Report on Form 10-K for the year ended December 31, 2011 and (b) the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012 and September 30, 2012. |
| 2. |
Based on my knowledge, the financial statements, and other financial information included or incorporated by reference in (a) the Company’s Annual Report on
Form 10-K for the year ended December 31, 2011 and (b) the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012 and September 30, 2012 fairly presented in all material
respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in the report. |
| 3. |
The data circled in Exhibit A attached hereto marked with #1 is in agreement with, except for instances of differences attributable to rounding, the corresponding
amount contained within the Company’s audited consolidated financial statements and/or financial statement schedule listed in the Table of Contents at Items 8 and 15, respectively, to the Company’s Annual Report on Form 10-K for the year
ended December 31, 2007. |
| 4. |
Based on my knowledge, the audited consolidated financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2007
fairly presented in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in the report. |
| 5. |
The data circled in Exhibit A attached hereto marked with #2 has been accurately derived based on amounts contained within the Company’s audited consolidated
financial statements and/or financial statement schedule listed in the Table of Contents at Items 8 and 15, respectively, to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007. |
| 6. |
The data circled in Exhibit A attached hereto marked with #3 (a) is in agreement with the corresponding amount or percentage contained within an unaudited analysis
or schedule prepared by the Company’s personnel under my supervision; (b) the arithmetic accuracy of amounts and percentages shown on such unaudited analysis or schedule has been proved; and (c) the amounts used in such unaudited
analysis or schedule are in agreement with, except for instances of differences attributable to rounding, the corresponding amounts contained within the Company’s accounting records subject to the Company’s internal control for the period
indicated. |
B-1
| 7. |
I, or persons under my supervision, have reviewed each of the numbers identified by the Underwriters in Exhibit B attached hereto, which includes copies of (i) the
preliminary prospectus supplement, dated December 18, 2012 relating to the Offering, (ii) the prospectus supplement, dated December 18, 2012 relating to the Offering, (iii) the Annual Report on Form 10-K for the fiscal year ended
December 31, 2011, (iv) the Quarterly Report on Form 10-Q for the quarter ended March 31, 2012, (v) the Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, (vi) the Quarterly Report on Form 10-Q for the
quarter ended September 30, 2012, and (vii) the Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission (the “SEC”) on April 20, 2012. |
| 8. |
I, or persons under my supervision, have verified each of the numbers circled in Exhibit B attached hereto. Items verified by us are, in certain cases, marked and
referenced to supporting documentation included in Exhibit B. Items verified by us are generally derived from a variety of administrative systems, including our internal accounting and control systems, as well as certain other documents.
|
[Signature Page Follows]
B-2
IN WITNESS WHEREOF, we have executed this Management Certificate of the Company as of the
date set forth above.
|
|
|
| By: |
|
|
| Name: |
|
Ronald J. Kruszewski |
| Title: |
|
Chairman, President and |
|
|
Chief Executive Officer |
|
|
| By: |
|
|
| Name: |
|
James M. Zemlyak |
| Title: |
|
Senior Vice President and |
|
|
Chief Financial Officer |
B-3
