WISCONSIN POWER AND LIGHT COMPANY
(a Wisconsin corporation)
7% DEBENTURES DUE JUNE 15, 2007
PURCHASE AGREEMENT
Dated: June 25, 1997
TABLE OF CONTENTS
Page
PURCHASE AGREEMENT........................................................1
SECTION 1. Representations and Warranties.........................2
(a) Representations and Warranties by the Company..........2
(i) Compliance with Registration Requirements..............2
(ii) Incorporated Documents.................................3
(iii) Independent Accountants................................3
(iv) Financial Statements...................................4
(v) No Material Adverse Change in Business.................4
(vi) Due Organization of the Company........................4
(vii) No Significant Subsidiaries............................4
(viii) Capitalization.........................................4
(ix) Authorization of Agreement.............................5
(x) Authorization of the Indenture.........................5
(xi) Authorization of the Securities........................5
(xii) Description of the Securities and the Indenture........5
(xiii) Absence of Defaults and Conflicts......................5
(xiv) Absence of Work Stoppage...............................6
(xv) Absence of Proceedings.................................6
(xvi) Absence of Further Requirements........................6
(xix) Possession of Licenses and Permits.....................7
(xx) Title to Property......................................7
(xxi) Environmental Laws.....................................7
(b) Officer's Certificates.................................8
SECTION 2. Sale and Delivery to Underwriters; Closing.............8
(a) Securities.............................................8
(b) Payment................................................8
(c) Denominations; Registration............................8
SECTION 3. Covenants of the Company...............................8
(a) Compliance with Securities Regulations and
Commission Requests....................................9
(b) Filing of Amendments...................................9
(c) Delivery of Registration Statements....................9
(d) Delivery of Prospectuses...............................9
(e) Continued Compliance with Securities Laws.............10
(f) Blue Sky Qualifications...............................10
(g) Rule 158..............................................10
(h) Use of Proceeds.......................................11
(i) Restriction on Sale of Securities.....................11
(j) Reporting Requirements................................11
SECTION 4. Payment of Expenses...................................11
(a) Expenses..............................................11
(b) Termination of Agreement..............................11
SECTION 5. Conditions of Underwriters' Obligations...............11
(a) Effectiveness of Registration Statement...............11
(b) Opinion of Counsel for Company........................12
(c) Opinion of Counsel for Underwriters...................12
(d) Officers' Certificate.................................12
(e) Accountant's Comfort Letter...........................12
(f) Bring-down Comfort Letter.............................13
(g) Maintenance of Rating.................................13
(h) Regulatory Approval...................................13
(i) Additional Documents..................................13
(j) Termination of Agreement..............................13
SECTION 6. Indemnification.......................................13
(a) Indemnification of Underwriters.......................13
(b) Indemnification of Company, Directors and Officers....14
(c) Actions against Parties; Notification.................14
(d) Settlement without Consent if Failure to Reimburse....15
SECTION 7. Contribution..........................................15
SECTION 8. Representations, Warranties and Agreements
to Survive Delivery...................................16
SECTION 9. Termination of Agreement..............................17
(a) Termination; General..................................17
(b) Liabilities...........................................17
SECTION 10. Default by One or More of the Underwriters............17
SECTION 11. Notices...............................................18
SECTION 12. Parties...............................................18
SECTION 13. Governing Law and Time................................18
SECTION 14. Effect of Headings....................................18
SCHEDULES
Schedule A - List of Underwriters..............Sch A-1
Schedule B - Pricing Information...............Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's
Counsel............................................A-1
Wisconsin Power and Light Company
(a Wisconsin corporation)
$105,000,000
7% Debentures Due June 15, 2007
PURCHASE AGREEMENT
June 25, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representatives of the Underwriters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Wisconsin Power and Light Company, a Wisconsin corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") 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 Xxxxxxx Xxxxx is
acting as representative (in such capacity, the "Representative"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective
principal amounts set forth in said Schedule A of $105,000,000 aggregate
principal amount of the Company's unsecured 7% Debentures Due June 15,
2007 (the "Securities"). The Securities are to be issued pursuant to an
indenture dated as of June 20, 1997 (the "Indenture") between the Company
and Firstar Trust Company, a Wisconsin state banking corporation, as
trustee (the "Trustee"). The term "Indenture," as used herein, includes
the Officers' Certificate (as defined in the Indenture) or any
supplemental indenture establishing the form and terms of the Securities
pursuant to Sections 2.01 and 2.02 of the Indenture.
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Representative deems
advisable after this Agreement has been executed and delivered and the
Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-60917)
covering the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933
Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term
Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of
such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or
(b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule
430A Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement,
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-
3 under the 1933 Act, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is
herein called the "Registration Statement." Any registration statement
filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such
filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus (including the prospectus
supplement), as well as the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first
furnished to the Underwriters for use in connection with the offering of
the Securities is herein called the "Prospectus." If Rule 434 is relied
on, the term "Prospectus" shall refer to the preliminary prospectus dated
June 24, 1997 together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet 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 ("XXXXX").
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 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 (the "1934 Act") which is incorporated by
reference 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
and as of the Closing Time referred to in Section 2(b) hereof, and agrees
with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) 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.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time, the
Registration Statement, the Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 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. If Rule 434 is used,
the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different", as such term is
used in Rule 434, from the Prospectus included in the Registration
Statement at the time it became effective. The representations
and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed
as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, 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 XXXXX, except
to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement 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, at the time the Registration
Statement became effective, at the time the Prospectus was issued
and 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.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules
included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The financial statements
included in the Registration Statement 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, if any, included in the Registration
Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and
the summary financial information of the Company included in the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since
the respective dates as of which information is given in the
Registration Statement and 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
regular dividends on the Company's common stock, par value $5.00
per share, and preferred stock, without par value, in amounts per
share that are consistent with past practice, or the applicable
charter document or supplement thereto, respectively, there has
been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(vi) Due Organization of the Company. The Company has
been duly organized and is validly existing as a corporation under
the laws of the State of Wisconsin and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in 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.
(vii) No Significant Subsidiaries. The only
subsidiaries of the Company are listed on Exhibit 21B to the
Company's Annual Report on Form 10-K for the year ended December
31, 1996. The Company has no "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(viii) Capitalization. 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 of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture
has been duly authorized, executed and delivered by the Company
and duly qualified under the 1939 Act and, assuming due execution
and delivery by the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (A) 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 (B) as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) 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.
(xii) 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 Prospectus and the Officers' Certificate or supplemental
indenture creating such Securities and the Indenture will be in
substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(xiii) Absence of Defaults and Conflicts. Neither
the Company nor any of its subsidiaries is in violation of its
charter or by-laws 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; and the execution,
delivery and performance of this Agreement, the Indenture and the
Securities 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 Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the Securities
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, events or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
(x) the charter or by-laws of the Company or any subsidiary
(except for any such violation with respect to any such subsidiary
that would not, individually or the aggregate, result in a
Material Adverse Effect) or (y) 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
assets, properties or operations, except for any such violations
with respect to this clause (y) as would not, individually or in
the aggregate, 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 subsidiary.
(xiv) Absence of Work Stoppage. No work stoppage 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 work stoppage by the employees
of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(xv) 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
disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to 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 subsidiary
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, could not reasonably be expected to result in a Material
Adverse Effect.
(xvi) 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 or for the due
execution, delivery or performance of the Indenture by the
Company, 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, except for the qualification of the Indenture
under the 1939 Act and except for certain filings required by or
pursuant to the Final Order of the Public Service Commission of
Wisconsin.
(xix) 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 to possess
any such Governmental Licenses would not have 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, have 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
have a Material Adverse Effect; and neither the Company nor any of
its subsidiaries 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.
(xx) Title to Property. The Company has good and
marketable title to all real property owned by it and good title
to all other properties owned by it, 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 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; 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 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, except where
such would not have a Material Adverse Effect.
(xxi) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, 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 (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
might 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 the violation of any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Representative 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 B, 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.
(b) Payment. Payment of the purchase price for, and
delivery of certificates for, the Securities shall be made at the offices
of the Company, 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, or
at such other place as shall be agreed upon by the Representative and the
Company, at 10:00 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 Representative 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 a bank account designated by the Company,
against delivery to the Representative for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representative,
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.
Xxxxxxx Xxxxx, 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 ($1,000 or integral multiples
thereof) and registered in such names as the Representative may request in
writing at least one full business day before the Closing Time. The
Securities will be made available for examination and packaging by the
Representative 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 follows:
(a) Compliance with Securities Regulations and
Commission Requests. The Company, subject to Section 3(b), will
comply with the requirements of Rule 430A or Rule 434, as
applicable, and will notify the Representative immediately, and
confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or
any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments with respect
to the Registration Statement or any amendment thereto from the
Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the 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. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) 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.
(b) Filing of Amendments. The Company will give the
Representative notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b)), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative 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 Representative or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company
has furnished or will deliver to the Representative and counsel
for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed 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) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The
copies of the 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 XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will
deliver to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter may reasonably
request, 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 or the
1934 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
XXXXX, 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, the 1934 Act and the 1934 Act Regulations and the
1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when the
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
reasonable 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 reasonable opinion of such counsel, at any such time to
amend the 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 or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably
request.
(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 as the
Representative may designate and to maintain such qualifications
in effect for a period of not less than six months from the later
of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; 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. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than six months from the effective
date of the Registration Statement and any Rule 462(b)
Registration Statement. The Company will also supply the
Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment
under the laws of such jurisdictions as the Underwriters may
reasonably request.
(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 securityholders as soon as practicable
an earnings statement for the purposes of, and to provide 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) Restriction on Sale of Securities. During a
period of 30 days from the date of the Prospectus, the Company
will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise transfer or dispose
of, any debt securities of the Company which mature more than one
year after the Closing Time.
(j) Reporting Requirements. The Company, during the
period when the Prospectus is required to be delivered under the
1933 Act or the 1934 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.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will
pay all expenses incident to the performance of its 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 printing and
delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture 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 any
certificates for 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 state 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 Term Sheets and of the Prospectus and any amendments or
supplements thereto provided that counsel fees in connection therewith do
not exceed $5,000, (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, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture
and the Securities and (ix) any fees payable in connection with the rating
of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by
the Representative in accordance with the provisions of Section 5 or
Section 9(a)(i) 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.
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 in all material respects by the Company of its covenants
and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act and at Closing
Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act
or proceedings therefor 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 430A Information shall have been filed with
the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule
430A) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time,
the Representative shall have received the favorable opinion,
dated as of Closing Time, of Xxxxx & Xxxxxxx, 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 hereto.
(c) Opinion of Counsel for Underwriters. At Closing
Time, the Representative shall have received the favorable
opinion, dated as of Closing Time, of Xxxxxxxxxx & Xxxxx LLP,
counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, with
respect to the matters set forth in clauses (vii) through (x),
inclusive, and the penultimate paragraph of Exhibit A hereto. In
giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there
shall not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectus, 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
Representative 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, 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 in all material respects 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 are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Representative shall have
received from Xxxxxx Xxxxxxxx LLP a letter dated such date, in
form and substance reasonably satisfactory to the Representative,
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 contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representative shall have received from Xxxxxx Xxxxxxxx LLP a
letter, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days
prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the
Securities shall be rated at least AA3 (negative watch) by Moody's
Investor's Service Inc. and AA- (negative watch) by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and the
Company shall have delivered to the Representative a letter, dated
the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Securities
have such ratings; and since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's other debt securities by
any "nationally recognized statistical rating agency", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
of the 1933 Act Regulations, and no such organization shall have
publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other debt
securities.
(h) Regulatory Approval. The Company shall have
received all regulatory approvals necessary in order to issue the
Securities, including without limitation a Final Order of the
Public Service Commission of Wisconsin.
(i) Additional Documents. At Closing Time, counsel
for the Underwriters shall have been furnished with such
additional documents as they may reasonably request to enable 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.
(j) 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 Representative 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 6 and 7 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 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:
(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 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, 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 contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto), 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; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen
by Xxxxxxx Xxxxx), 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 Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, 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 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(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 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 Xxxxxxx Xxxxx (which
counsel shall be reasonably acceptable to the Company), and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company (which counsel shall
be reasonably acceptable to Xxxxxxx Xxxxx). 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 it is otherwise entitled under this Agreement, 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 (x) shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement and (y) to the extent it shall not have so reimbursed such
indemnified party for such fees and expenses prior to the date of such
settlement, it shall not have provided written notice to such indemnified
party setting forth in reasonable detail why such indemnified party is not
entitled to reimbursement of such fees and expenses.
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, or, if Rule 434 is used, the corresponding location on the
Term Sheet, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
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.
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 0000 Xxx) 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 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 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
Delivery. 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 any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative 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, 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, 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
good faith judgment of the Representative, impracticable 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 American Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or
by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) 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 6 and 7 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 Representative 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
Representative shall not have completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of the
Securities to be purchased hereunder, 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
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the Securities
to be purchased hereunder, 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 the Representative or 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. 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 Representative at
North Tower, World Financial Center, New York, New York 10281-1201,
attention of Xxxx Xxxxxxxxx; and notices to the Company shall be directed
to it at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, attention
of Xxxxxx X. Xxxxxxx.
SECTION 12. 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 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
WISCONSIN. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
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 between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
WISCONSIN POWER AND LIGHT COMPANY
By /s/
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/
_______________________________________
Authorized Signatory
For itself and as Representative of the other Underwriters, if any, named
in Schedule A hereto.
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . $105,000,000
SCHEDULE B
Wisconsin Power and Light Company
$105,000,000 Unsecured Debt Securities
1. The initial public offering price of the Securities shall
be 99.715% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.065% of the principal amount thereof.
3. The interest rate on the Securities shall be 7% per annum.
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is validly existing as a corporation under the
laws of the State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Purchase Agreement.
(iii) To the best of our knowledge, the Company is duly qualified
as a foreign corporation 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.
(iv) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except (A) 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, (B) 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 (C) as
enforcement of those provisions set forth in Schedule 1 hereto may be
limited under the laws of the State of Wisconsin, but the inclusion of
such provisions does not affect the validity of the Indenture, and the
Indenture contains legally adequate provisions for the realization of the
principal legal rights and benefits offered thereby.
(vi) The Securities are in the form contemplated by the
Indenture, have been duly authorized 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 today and payment of the
consideration for the Securities as specified in the Purchase Agreement
has been made, the Securities have been duly executed, issued and
delivered by the Company and constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except (A) 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, (B) 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 (C) as enforcement
of those provisions set forth in Schedule 2 may be limited under the laws
of the State of Wisconsin, but the inclusion of such provisions does not
affect the validity of the Securities, and the Securities contain legally
adequate provisions for the realization of the principal legal rights and
benefits offered thereby, and will be entitled to the benefits of the
Indenture.
(vii) The Indenture has been duly qualified under the 1939 Act.
(viii) The Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof contained in
the Prospectus.
(ix) The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by
Rule 424(b); and, to the best of our knowledge, 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 threatened by the Commission.
(x) The Registration Statement, including the Rule 430A
Information, the Prospectus, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other
than the financial statements, supporting schedules and other financial or
statistical data included therein or omitted therefrom, and the Trustee's
Statements of Eligibility on Forms T-1 and T-2 (the "Statements of
Eligibility"), as to which we express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(xi) The documents incorporated by reference in the Prospectus
(other than the financial statements, supporting schedules and other
financial or statistical data included therein or omitted therefrom, as to
which we express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder.
(xii) To the best of our knowledge and other than as set forth in
the Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any wholly-
owned subsidiary is a party, or to which the property of the Company or
any wholly-owned subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which, if determined
adversely, would result in a Material Adverse Effect.
(xiii) The information in the Prospectus under "Description of the
Debentures" and "Certain Terms of the Debentures," to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects.
(xiv) To the best of our knowledge, the Company is not in
violation of its charter or by-laws and no default by the Company exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under
the 1933 Act and the 1933 Act Regulations, which have been obtained, or as
may be required under the securities or blue sky laws of the various
states, except for the qualification of the Indenture under the 1939 Act
and except for certain filings required by or pursuant to the Final Order
of the Public Service Commission of Wisconsin relating to the Debentures,
as to which we express no opinion) is necessary or required in connection
with the due authorization, execution and delivery of the Purchase
Agreement or the due execution, delivery or performance of the Indenture
by the Company or for the offering, issuance, sale or delivery of the
Securities.
(xix) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement 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 Prospectus under the caption "Use Of Proceeds") and compliance by
the Company with its obligations under the Purchase Agreement, the
Indenture and the Securities do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined in Section
1(a)(xiii) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, filed as an exhibit to the Registration Statement and to which
the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company, or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its properties, assets or operations.
Nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the
Rule 430A Information and Rule 434 Information (if applicable), (except
for financial statements and schedules and other financial or statistical
data included or incorporated by reference therein or omitted therefrom
and the Statements of Eligibility, as to which we make no statement), at
the time such Registration Statement or any such amendment became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial or statistical data included or incorporated
by reference therein or omitted therefrom and the Statements of
Eligibility, as to which we make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was
issued or at the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
Such opinion shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
