EXHIBIT 1
[ ] SHARES
---------------
MINNESOTA POWER & LIGHT COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
[ , 199 ]
----------- -
New York, New York
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
Dear Sirs:
Minnesota Power & Light Company (the "Company") proposes to
issue and sell to you (each, an "Underwriter" and, collectively,
the "Underwriters") an aggregate of [ ] shares of the
-----------
Company's Common Stock, without par value (the "Common Stock"),
and the preferred share purchase rights attached thereto (the
"Rights") (collectively referred to as "Firm Shares") . The
Company has also agreed to grant to the Underwriters an option
(the "Option") to purchase up to an additional [ ]
----------------
shares of Common Stock and the attached Rights (collectively
referred to as the "Option Shares") on the terms and for the
purposes set forth in Section 1(b). The Firm Shares and the
Option Shares are collectively referred to as the "Shares."
The initial public offering price per share for the Shares
and the purchase price per share for the Shares to be paid by the
several Underwriters shall be agreed upon by the Company and the
Underwriters, and such agreement shall be set forth in a separate
written instrument substantially in the form of Annex A hereto
(the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form
of written telecommunication among the Company and the
Underwriters and shall specify such applicable information as is
indicated in Annex A hereto. The offering of the Shares shall be
governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the
execution and delivery of the Price Determination Agreement, this
Agreement shall be deemed to incorporate, and, unless the context
otherwise indicates, all references contained herein to "this
Agreement" and the phrase "herein" shall be deemed to include the
Price Determination Agreement.
The Company confirms as follows its agreements with the
several Underwriters.
1. Agreement to Sell and Purchase.
------------------------------
(a) The Company agrees to issue and sell to each
Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Company at the purchase price per
share for the Firm Shares to be agreed upon by the Underwriters
and the Company and set forth in the Price Determination
Agreement, the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule 1 thereto, plus such additional
number of Firm Shares such Underwriter may become obligated to
purchase pursuant to Section 10 hereof. The obligations of the
Underwriters under this Agreement are several and not joint. The
obligations of the Company and the Underwriters under this
Agreement are undertaken on the basis of the representations and
are subject to the conditions of this Agreement.
(b) Subject to all the terms and conditions in this
Agreement, the Company grants the Option to the Underwriters,
severally and not jointly, to purchase up to [ ]
----------------
Option Shares from the Company at the same price per share as the
Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm
Shares by the several Underwriters and may be exercised in whole
or in part at any time (but not more than once), upon written or
telegraphic notice (the "Option Share Notice") by the
Underwriters to the Company on or before the 30th day after the
date of this Agreement setting forth the aggregate number of
Option Shares to be purchased and the time and date for such
purchase (the "Option Closing Date"), which Option Closing Date
may be the same as the Closing Date (as defined in Section 2) but
in no event shall the Option Closing Date be earlier than the
Closing Date nor later than five business days after the giving
of the Option Shares Notice. On the Option Closing Date, the
Company shall issue and sell to the several Underwriters the
number of Option Shares set forth in the Option Shares Notice,
and each Underwriter shall purchase such percentage of the Option
Shares as is equal to the percentage of Firm Shares that such
Underwriter is purchasing, as adjusted by the Underwriters in
such manner as they deem advisable to avoid fractional shares.
(c) The initial public offering price per share for
the Firm Shares and the purchase price per share for the Firm
Shares to be paid by the several Underwriters shall be agreed
upon and set forth in the Price Determination Agreement, which
shall be dated the date hereof.
2. Payment and Delivery. Delivery of the Firm Shares
--------------------
shall be made to the Underwriters in New York, New York, against
payment of the purchase price by wire transfer of immediately
available funds to an account designated in writing by the
Company to the Underwriters at least one business day prior to
the Closing Date (as hereinafter defined). Such payment shall be
made at 10:00 a.m., New York City time, on [ , 199 ] or
---------- -
at such time on such other date as may be agreed upon by the
Company and the Underwriters (such date is hereinafter referred
to as the "Closing Date").
To the extent that the Option is exercised, delivery of
the Option Shares against payment by the Underwriters (in the
manner specified above) shall take place in the manner specified
above for the Closing Date at the time and date (which may be the
Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in
definitive form and shall be registered in such names and in such
denominations as the Underwriters shall request in writing at
least three business days prior to the Closing Date or the Option
Closing Date, as the case may be. If no such request is received
by said time, the Company shall have the right to deliver the
Shares in the name of the Underwriters in such denominations as
the Company may determine. For the purpose of expediting the
checking and packaging of certificates for the Shares, the
Company agrees to make such certificates available for inspection
at least one full business day prior to the Closing Date or the
Option Closing Date, as the case may be.
3. Registration Statement and Prospectus; Public
---------------------------------------------
Offering. The Company has filed with the Securities and
---------
Exchange Commission (the "Commission"), pursuant to provisions of
the Securities Act of 1933 (the "Act") and the published rules
and regulations adopted by the Commission thereunder (the "Rules
and Regulations"), a registration statement (No. 333- ) on
-----
Form S-3, relating to the registration of 3,000,000 shares of the
Company's Common Stock, without par value. Such registration
statement was declared effective on [ , 199 ]. The term
---------- -
"preliminary prospectus" as used herein means any preliminary
prospectus as contemplated by Rule 430 of the Rules and
Regulations included at any time as a part of such registration
statement. Copies of such registration statement and any
amendments thereto and of each preliminary prospectus included as
part of such registration statement have been delivered to the
Underwriters. Such registration statement, as it may be amended
to the date of this Agreement, including financial statements and
all exhibits, and the prospectus, as supplemented by a prospectus
supplement relating to the Shares proposed to be filed
electronically pursuant to Rule 424 are hereinafter respectively
referred to as the "Registration Statement" and the "Prospectus."
Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 of the Act (the "Incorporated
Documents") which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the Effective
Date or the date of such preliminary prospectus or the
Prospectus, as the case may be. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date, or
the date of any preliminary prospectus or the Prospectus, as the
case may be, and incorporated in such document by reference if
such filing is made prior to the Closing Date. Any reference
herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date the Registration Statement was
declared effective or the time and date of the filing of the
Company's most recent Annual Report on Form 10-K if such filing
is made prior to the Closing Date.
The Company understands that the Underwriters propose
to make a public offering of the Firm Shares, as described in the
Prospectus, as soon after the date of the Price Determination
Agreement as the Underwriters deem advisable. The Company
confirms that the Underwriters and dealers have been authorized
to distribute each preliminary prospectus, if any, and are
authorized to distribute the Prospectus and any amendments or
supplements to it.
4. Representations of the Company. The Company
------------------------------
represents to the Under-writers as follows:
(a) The Company meets the requirements for use of
Form S-3 under the Act.
(b) On the Effective Date, and at the Closing
Date, the Registration Statement and, at the date of the filing
of the Prospectus, and at the Closing Date, and, if later, the
Option Closing Date, the Prospectus, as each may be amended or
supplemented, fully complied or will fully comply in all material
respects with the applicable provisions of the Act and the Rules
and Regulations, or pursuant to the Rules and Regulations shall
be deemed to comply therewith. On the Effective Date and Closing
Date and, if later, the Option Closing Date, the Registration
Statement, as it may be amended or supplemented, did not or 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. On the date of
filing of the Prospectus and the Closing Date, and, if later, the
Option Closing Date, the Prospectus, as it may be amended or
supplemented, will not contain an untrue statement of a material
fact or 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. On the date of filing of
the Prospectus and the Closing Date, and, if later, the Option
Closing Date, the Incorporated Documents did or will fully comply
in all material respects with the applicable provisions of the
Exchange Act and the rules and regulations of the Commission
thereunder (the "Exchange Act Rules and Regulations"), and, when
read together with the Prospectus, as it may be amended or
supplemented, 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. The foregoing representations do not apply to
statements or omissions made in reliance on and in conformity
with information relating to any Underwriter furnished in writing
to the Company by such Underwriter expressly for use in the
Registration Statement or the Prospectus, as they may be amended
or supplemented.
(c) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, as they may be amended or supplemented, there has not
been any material adverse change in the management, business,
properties, financial condition or results of operations of the
Company and its subsidiaries taken as a whole, and there has not
been any material transaction entered into by the Company or its
subsidiaries, other than transactions in the ordinary course of
business and transactions set forth in or contemplated by the
Registration Statement and the Prospectus, as they may be amended
or supplemented. The Company and its subsidiaries have no
material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus, as they may be amended
or supplemented.
(d) Any Incorporated Documents filed and incorpo-
rated by reference prior to the Closing Date will, when they are
filed with the Commission, conform in all material respects with
the requirements of the Exchange Act and the Exchange Act Rules
and Regulations.
(e) The Company has full corporate power and
authority to enter into this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable against it
in accordance with its terms.
(f) The consummation of the transactions contem-
plated by this Agreement and the fulfillment of its terms will
not result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, or other material agreement or instrument to which the
Company is now a party.
(g) The outstanding shares of Common Stock have
been, and the Shares to be issued and sold by the Company upon
such issuance will be, duly authorized, validly issued, fully
paid and nonassessable and will not be subject to any preemptive
or similar right; and the Rights will be validly issued.
(h) The description of the Common Stock in the
Registration Statement and the Prospectus, as they may be amended
or supplemented, is, and at the Closing Date and, if later, the
Option Closing Date, will be, complete and accurate in all
material respects. Except for shares issuable under the
Company's Automatic Dividend Reinvestment and Stock Purchase
Plan, the Minnesota Power and Affiliated Companies Employee Stock
Purchase Plan or any compensation plan disclosed in the Company's
Proxy Statement with respect to the Company's [ ] Annual
-----
Meeting of Shareholders (collectively referred to as the "Stock
Purchase and Compensation Plans"), the Company does not have
outstanding, and at the Closing Date and, if later, the Option
Closing Date, will not have outstanding, any options to purchase,
or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, any shares of Common Stock, any shares of capital
stock of any subsidiary or any such warrants, convertible
securities or obligations.
(i) The Company has filed a Petition for Certif-
ication of Capital Structure with the Minnesota Public Utilities
Commission ("Minnesota Commission") pursuant to the Minnesota
Public Utilities Act with respect to the issuance and sale by the
Company of the Shares. The Minnesota Commission has entered an
authorizing order approving the capital structure including the
issuance and sale of the Shares. Apart from such authorizing
order of the Minnesota Commission, no consent, approval, authori-
zation or order of, or any filing or declaration with, any court
or governmental agency or body is required for the consummation
by the Company of the transactions on its part herein contem-
plated, except such as have been obtained under the Act or the
Rules and Regulations and such as may be required under state
securities or "Blue Sky" laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution by the Underwriters
of the Shares.
(j) The Company is duly registered as a transfer
agent within the meaning of the Exchange Act with respect to the
Common Stock and is in compliance with the Exchange Act Rules and
Regulations with respect to its activities as transfer agent.
(k) Neither the Company nor any of its directors,
officers or controlling persons has taken, directly or
indirectly, any action intended, or which might reasonably be
expected, to cause or result, under the Act or otherwise, in, or
which has constituted, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale
of the Shares.
(l) No holder of securities of the Company has
rights to the registration of any securities of the Company
because of the filing of the Registration Statement.
5. Agreements of the Company.
-------------------------
(a) The Company will not file any amendment
or supplement to the Registration Statement or the Prospectus
unless a copy has first been submitted to the Underwriters a
reasonable time before its filing and the Underwriters have not
reasonably objected to it in writing within a reasonable time
after receiving the copy.
(b) The Company will promptly advise the
Underwriters (i) of the initiation or threatening of any proceed-
ings for, or receipt by the Company of any notice with respect
to, the suspension of the qualification of the Shares for sale in
any jurisdiction or the issuance of any order by the Commission
suspending the effectiveness of the Registration Statement and
(ii) of receipt by the Company or any representative or attorney
of the Company of any other communication from the Commission
relating to the Company, the Registration Statement, any prelimi-
nary prospectus or the Prospectus or to the transactions contem-
plated by this Agreement. The Company will make every reasonable
effort to prevent the issuance of an order suspending the effec-
tiveness of the Registration Statement and, if any such order is
issued, to obtain its lifting as soon as possible.
(c) The Company will furnish to the Underwriters
without charge one signed copy of the Registration Statement and
of any amendments thereto (including all exhibits filed with any
such document) and as many conformed copies of the Registration
Statement as each of the Underwriters may reasonably request.
(d) During such period as a prospectus is re-
quired by law to be delivered by the Underwriters or a dealer,
the Company will deliver, without charge, to the Underwriters and
to dealers, at such office or offices as the Underwriters may
designate, as many copies of the Prospectus as each of the
Underwriters may reasonably request, and, during such period (not
exceeding nine months) after the Effective Date if any event
occurs as a result of which it is necessary to amend or supple-
ment the Prospectus in order to make the statements in it, in the
light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading in any material respect,
or if during such period it is necessary to amend or supplement
the Prospectus to comply with the Act or Rules and Regulations,
the Company will promptly prepare, submit to the Underwriters,
file, subject to Section 5(a),with the Commission and deliver,
without charge, to each of the Underwriters and to dealers (whose
names and addresses the Underwriters will furnish to the Company)
to whom Shares may have been sold by the Underwriters, and to
other dealers on request, amendments or supplements to the
Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not, in the light of the
circumstances existing when the Prospectus is delivered to a
purchaser, be misleading in any material respect and will comply
with the Act and the Rules and Regulations; provided, however,
that should such event relate solely to the activities of any of
the Underwriters, then such Underwriter will assume the expense
of preparing and furnishing any such amendment or supplement. In
case the Underwriters are required to deliver a Prospectus after
the expiration of nine months from the Effective Date, the
Company, upon the request of any of the Underwriters, will
furnish to such Underwriter, at the expense of such Underwriter,
a reasonable quantity of an amendment or supplement complying
with Section 10(a) of the Act. Delivery by the Underwriters of
any such amendments or supplements to the Prospectus will not
constitute a waiver of any of the conditions in Section 6.
(e) The Company will make generally available to
the Company's security holders, as soon as practicable but in no
event later than the last day of the 15th full calendar month
following the calendar quarter in which the Effective Date falls,
an earnings statement satisfying the provisions of Section 11(a)
of the Act and Rule 158 of the Rules and Regulations.
(f) The Company will take such actions as the
Underwriters reasonably designate in order to qualify the Shares
for offer and sale under the securities or "Blue Sky" laws of
such jurisdictions as the Underwriters reasonably designate.
(g) The Company will pay, or reimburse if paid by
the Underwriters, whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated,
all costs and expenses incident to the performance of the obliga-
tions of the Company under this Agreement, including costs and
expenses relating to (i) the preparation, printing and filing of
the Registration Statement and exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the
Registration Statement and the Prospectus, except as provided in
Section 5(d), (ii) the preparation and delivery of certificates
representing the Shares, (iii) the registration or qualification
of the Shares for offer and sale under the securities or "Blue
Sky" laws of the jurisdictions referred to in Section 5(f) and
the determination of the legality of the Shares for investment,
including the reasonable fees and disbursements of counsel for
the Underwriters (not to exceed $10,000) in that connection, and
the preparation and printing of preliminary and supplemental
"Blue Sky" memoranda and legal investment memoranda, (iv) except
as provided in Section 5(d), the furnishing (including costs of
shipping and mailing) to the Underwriters and to dealers of
copies of the Registration Statement, each preliminary prospec-
tus, the Prospectus, and all amendments or supplements to the
Prospectus, and of the other documents required by this Section 5
to be so furnished, (v) all transfer taxes, if any, with respect
to the sale and delivery of the Shares by the Company to the
Underwriters, (vi) the listing of the Shares on the New York
Stock Exchange, (vii) any filings required to be made by the
Underwriters with the NASD, including the reasonable fees and
disbursements of counsel for the Underwriters in that connection,
and (viii) the transfer agent for the Shares.
(h) During the period of two years commencing on
the Effective Date, the Company will furnish to each Underwriter
who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital
stock, and will furnish to each Underwriter who may so request a
copy of each annual or other report it will be required to file
with the Commission.
(i) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably
be expected, to cause or result in, or which will constitute,
stabilization of the price of the shares of Common Stock to
facilitate the sale or resale of any of the Shares.
(j) Unless otherwise agreed to in writing by the
Company and the Underwriters, the Company will not for a period
of [ ] days after the commencement of public offering of the
--
Shares sell or otherwise dispose of any shares of Common Stock,
rights to acquire shares of Common Stock or securities
convertible into shares of Common Stock other than to the
Underwriters pursuant to this Agreement and other than in
connection with the Stock Purchase and Compensation Plans.
6. Conditions of the Underwriters' Obligation. The
------------------------------------------
obligation of each Underwriter to purchase the Shares is subject
to the accuracy, on the date of this Agreement and on the Closing
Date and, if later, the Option Closing Date, of the
representations of the Company in this Agreement, to the accuracy
and completeness of all statements made by the Company or any of
its officers in any certificate delivered to the Underwriters or
their counsel pursuant to this Agreement, to performance by the
Company of its obligations under this Agreement and to each of
the following additional conditions:
(a) All filings required by Rule 424 of the Rules
and Regulations must have been made.
(b) No stop order suspending the effectiveness of
the Registration Statement may be in effect and no proceedings
for such purpose may be pending before or threatened by the
Commission and any requests for additional information on the
part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) must have been complied
with.
(c) Since the respective dates as of which such
information is given in the Registration Statement and the
Prospectus, as they may be amended or supplemented, (i) there
must not have been any material change in the capital stock or
long-term debt of the Company and its subsidiaries, taken as a
whole, (ii) there must not have been any material adverse change
in the management, business, properties, financial condition, or
results of operations of the Company and its subsidiaries, taken
as a whole, other than transactions in the ordinary course of
business and transactions set forth in or contemplated by the
Prospectus, and (iii) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement
or information contained in the Prospectus or that is not re-
flected in the Prospectus but should be reflected in it in order
to make the statements or information in it not misleading in any
material respect; and in the judgment of the Underwriters, any
such development referred to in clause (i), (ii) or (iii) makes
it impracticable or inadvisable to consummate the sale and
delivery of the Shares by the Underwriters at the initial public
offering price.
(d) The Underwriters must receive on the Closing
Date and, with respect to the Option Shares, on the Option
Closing Date, a certificate, dated such date, of the chief execu-
tive officer, the chief operating officer or the chief financial
officer of the Company certifying that (i) the signer has care-
fully examined the Registration Statement and the Prospectus
(including any Incorporated Documents) and this Agreement, (ii)
the representations of the Company in this Agreement are accurate
on and as of the date of the certificate, (iii) there has not
been any material adverse change in the management, business,
properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, other than
transactions in the ordinary course of business and transactions
set forth in or contemplated in the Prospectus, (iv) to the
knowledge of such officer, no order suspending the effectiveness
of the Registration Statement or prohibiting the sale of the
Shares has been issued and no proceedings for such purpose are
pending before or threatened by the Commission, (v) there has
been no document required to be filed under the Exchange Act and
the Exchange Act Rules and Regulations that upon such filing
would be deemed to be an Incorporated Document that has not been
so filed, and (vi) the Company has performed all agreements that
this Agreement requires it to perform by the Closing Date.
(e) The Underwriters must receive on the Closing
Date and, with respect to the Option Shares, the Option Closing
Date, opinions dated the Closing Date substantially in the form
of Annex B-1 and B-2 to this Agreement from Xxxx & Priest LLP,
counsel to the Company, and Xxxxxx X. Xxxxxxxxx, Esq., general
counsel of the Company, respectively.
(f) The Underwriters must receive on the Closing
Date from Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP, their counsel,
an opinion dated the Closing Date and, with respect to the Option
Shares, the Option Closing Date, with respect to the Company, the
Shares, the Registration Statement, the Prospectus, this
Agreement and the form and sufficiency of all proceedings taken
in connection with the sale and delivery of the Shares. Such
opinion and proceedings will be satisfactory in all respects to
the Underwriters. The Company must have furnished to such
counsel such documents as they may reasonably request for the
purpose of enabling them to render such opinion.
(g) On the Closing Date and, with respect to the
Option Shares, the Option Closing Date, Price Waterhouse LLP must
furnish to the Underwriters a letter, addressed to the
Underwriters and in form and substance reasonably satisfactory to
the Underwriters, confirming that they are independent
accountants with respect to the Company as required by the Act
and the Rules and Regulations and with respect to the financial
and other statistical and numerical information contained in the
Registration Statement or incorporated by reference therein.
(h) Prior to the Closing Date, the Shares must be
duly authorized for listing by the New York Stock Exchange upon
official notice of issuance.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement will comply with
this Agreement only if they are in form and scope satisfactory to
counsel for the Underwriters.
7. Indemnification.
---------------
(a) The Company shall indemnify and hold
harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter, and each person, if any, who controls
each Underwriter, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any and all losses,
claims, damages and liabilities, joint or several (including any
investigation, legal or other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted), to which they,
or any of them, may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based on any untrue statement
or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Pro-
spectus or any amendment or supplement to the Registration
Statement or the Prospectus (including any Incorporated
Document), or the omission or alleged omission to state in it a
material fact required to be stated in it or necessary to make
the statements in it not misleading; provided, however, that the
Company shall not be liable to the extent that such loss, claim,
damage, or liability arises from the sale of the Shares in the
public offering to any person by any Underwriter and is based on
an untrue statement or omission or alleged untrue statement or
omission (i) made in reliance on and in conformity with informa-
tion furnished in writing to the Company by such Underwriter
expressly for use in the document or (ii) in a preliminary pro-
spectus if the Prospectus corrects the untrue statement or
omission or alleged untrue statement or omission which is the
basis of the loss, claim, damage or liability for which indemni-
fication is sought and a copy of the Prospectus was not sent or
given to such person at or before the confirmation of the sale to
such person in any case where such delivery is required by the
Act, unless such failure to deliver the Prospectus was a result
of noncompliance by the Company with Section 5(d). This
indemnity agreement shall be in addition to any liability that
the Company might otherwise have.
(b) Each Underwriter shall indemnify and hold
harmless the Company, its officers and directors, and each
person, if any, who controls any thereof within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only insofar as losses, claims, damages or
liabilities arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in or in
reliance on and in conformity with information furnished in
writing to the Company by such Underwriter expressly for use in
preparation of the documents in which the statement or omission
is made or alleged to be made. The Company acknowledges that for
all purposes of this Agreement, the amounts of the selling
commission and reallowance set forth in the Prospectus and
[ ] constitute the only information
-----------------------
furnished in writing to the Company by any Underwriter expressly
for use in the Registration Statement, any preliminary prospectus
or the Prospectus. This indemnity agreement shall be in addition
to any liability that the Underwriters might otherwise have.
(c) Any party that proposes to assert the right
to be indemnified under this Section 7 shall, promptly after
receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 7, notify in
writing each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission
so to notify such indemnifying party shall not relieve it from
any liability that it may have to any indemnified party otherwise
than under this Section 7. If any such action is brought against
any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party shall be entitled to
participate in, and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel
satisfactory to the indemnified party, and, after notice from the
indemnifying party to the indemnified party of its election to
assume the defense, the indemnifying party shall not be liable to
the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party shall have
the right to employ its counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the
indemnifying party, (ii) the indemnified party has been advised
by such counsel employed by it that there may be legal defenses
available to it involving potential conflict with the interests
of an indemnifying party (in which case the indemnifying party
shall not have the right to direct the defense of such action on
behalf of the indemnified party) or (iii) the indemnifying party
has not in fact employed counsel to assume the defense of such
action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying
party or parties and all such fees and expenses shall be
reimbursed promptly as they are incurred. An indemnifying party
shall not be liable for any settlement of any action or claim
effected without its written consent or, in connection with any
proceeding or related proceeding in the same jurisdiction, for
the fees and expenses of more than one separate counsel for all
indemnified parties.
8. Contribution. If recovery is not available under
------------
the foregoing indemnification provisions of Section 7, for any
reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contri-
bution to liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective
parties are entitled, there shall be considered the relative
benefits received by each party from the offering of the Shares
(taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable considerations
appropriate under the circumstances. The Company and the Under-
writers agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita
allocation. No person found guilty of fraudulent misrepresenta-
tion (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
9. Termination. This Agreement may be terminated by
-----------
Underwriters who have agreed to purchase in the aggregate 50% or
more of the Firm Shares by notifying the Company at any time
(a) at or before the Closing Date (or, with
respect to the Option Shares, at or before the Option Closing
Date) if, in the judgment of such Underwriters, payment for the
delivery of the Shares is rendered impracticable or inadvisable
because (i) trading in the equity securities of the Company is
suspended by the Commission or the New York Stock Exchange, (ii)
additional material governmental restrictions, not in force on
the date of this Agreement, are imposed upon trading in
securities generally or minimum or maximum prices have been
generally established on the New York Stock Exchange or on the
American Stock Exchange or trading in securities generally has
been suspended or limited on either such exchange or a general
banking moratorium has been established by Federal or New York
authorities, or (iii) any outbreak or material escalation of
hostilities or other calamity or crisis occurs the effect of
which is such as to make it impracticable to market the Shares,
or
(b) at or before the Closing Date (or, with
respect to the Option Shares, at or before the Option Closing
Date), if any of the conditions specified in Section 6 have not
been fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, except as otherwise provided, the Company will not be
under any liability to any of the Underwriters and the
Underwriters will not be under any liability to the Company,
except that (1) if this Agreement is terminated by the
Underwriters because of any failure or refusal on the part of the
Company to comply with the terms of this Agreement or because any
of the conditions in Section 6 are not satisfied, the Company
will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the proposed
purchase and sale of the Shares, and (2) if the Underwriters fail
or refuse to purchase the Shares agreed to be purchased by them
under this Agreement, without some reason sufficient to justify
cancellation or termination of its obligations under this
Agreement, they will not be relieved of liability to the Company
for damages occasioned by their default.
The Company will not in any event be liable to the
Underwriters for damages on account of loss of anticipated prof-
its.
10. Substitution of Underwriters. If one or more of
----------------------------
the Underwriters shall, for any reason permitted hereunder,
cancel its obligation to purchase hereunder and to take up and
pay for the Firm Shares to be purchased by such one or more
Underwriters, the Company shall immediately notify the remaining
Underwriters, and the remaining Underwriters shall have the
right, within 24 hours of receipt of such notice, either to take
up and pay for (in such proportion as may be agreed upon among
them) or to substitute another underwriter or underwriters,
satisfactory to the Company, to take up and pay for the number of
Firm Shares that such one or more Underwriters did not purchase.
If one or more Underwriters shall, for any reason other than a
reason permitted hereunder, fail to take up and pay for the Firm
Shares to be purchased by such one or more Underwriters, the
Company shall immediately notify the remaining Underwriters, and
the remaining Underwriters shall be obligated to take up and pay
for (in addition to the respective number of Firm Shares set
forth opposite their respective names in Schedule 1), the number
of Firm Shares that such defaulting Underwriter or Underwriters
failed to take up and pay for, up to a number thereof equal to,
in the case of each such remaining Underwriter, ten percent (10%)
of the number of Firm Shares set forth opposite the name of such
remaining Underwriter in Schedule 1, and such remaining
Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as
may be agreed upon among them), or to substitute another
underwriter or underwriters, satisfactory to the Company, to take
up and pay for, the remaining number of the Firm Shares that the
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any unpurchased Firm Shares still remain, then the
Company or the Underwriters shall be entitled to an additional
period of 24 hours within which to procure another party or
parties, who are members of the NASD (or if not members of the
NASD, who are not eligible for membership in the NASD and who
agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply
with the NASD's Rules of Fair Practice) and satisfactory to the
Company, to purchase or agree to purchase such unpurchased Firm
Shares on the terms herein set forth. In any such case, either
the remaining Underwriters or the Company shall have the right to
postpone the Closing Date for a period not to exceed seven full
business days from the date agreed upon in accordance with this
Section 10, in order that the necessary changes in the
Registration Statement and Prospectus and any other documents and
arrangements may be effected. If the Underwriters and the
Company shall fail to procure a satisfactory party or parties as
above provided to purchase or agree to purchase such unpurchased
Firm Shares, then the Company may either (i) require the
remaining Underwriters to purchase the number of Firm Shares that
they are obligated to purchase hereunder (but no more than such
number of Firm Shares) or (ii) terminate this Agreement by giving
prompt notice to the Underwriters. In the event that neither the
remaining Underwriters nor the Company has arranged for the
purchase of such unpurchased Firm Shares by another party or
parties as above provided and the Company has not elected to
require the remaining Underwriters to purchase the number of Firm
Shares that they are obligated to purchase hereunder, then this
Agreement shall terminate without any liability on the part of
any such Underwriter or the Company for the purchase or sale of
any Shares under this Agreement. Any action taken pursuant to
this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriters under
this Agreement.
11. Miscellaneous. The reimbursement, indemnification
-------------
and contribution agreements in Sections 5, 7, 8 and 9 and the
representations and agreements of the Company and the Under-
writers in this Agreement will remain in full force and effect
regardless of any termination of this Agreement, any investiga-
tion made by or on behalf of the Underwriters, the Company, or
any controlling person and delivery of and payment for the
Shares.
This Agreement is for the benefit of the several
Underwriters, the Company, and their successors and assigns, and,
to the extent expressed in this Agreement, for the benefit of
persons controlling the several Underwriters or the Company,
directors and officers of the Company and directors, officers,
employees and agents of the several Underwriters, and their
respective successors and assigns, and no other persons,
partnership, association or corporation will acquire or have any
right under or by virtue of this Agreement. The term "successors
and assigns" does not include any purchaser of Shares from any of
the Underwriters merely because of such purchase.
All notices and communications under this Agreement
shall be in writing and mailed or delivered, by messenger,
facsimile transmission or otherwise, to the Underwriters at
[ ] Attention: Corporate Finance
--------------------------------
Department, and to the Company, at 00 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxx 00000, Attention: Chief Financial Officer.
Any such notice or communication shall take effect upon receipt
thereof.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement may not be amended or otherwise modified
or any provision hereof waived except by an instrument in writing
signed by the Underwriters and the Company.
Please confirm that the foregoing correctly sets forth
the agreement between us.
Very truly yours,
MINNESOTA POWER & LIGHT COMPANY
By:
-------------------------------
Name:
Title:
Confirmed:
[ ]
---------------------
By:
--------------------------------------------
Name:
Title:
[ ]
---------------------
By:
--------------------------------------------
Name:
Title:
[ ]
---------------------
By:
--------------------------------------------
Name:
Title:
UNDERWRITING AGREEMENT SIGNATURE PAGE
ANNEX A
FORM OF PRICE DETERMINATION AGREEMENT
[ , 199 ]
-------------- -
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
[ , 199 ] (the "Underwriting Agreement"), among
-------------- -
Minnesota Power & Light Company, a public utility incorporated
under the laws of Minnesota (the "Company"), and you as the
Underwriters (collectively, the "Underwriters"). The
Underwriting Agreement provides for the purchase by the several
Underwriters from the Company subject to the terms and conditions
set forth therein, of an aggregate of [ ] shares of
---------------
the Company's Common Stock, without par value ("Common Stock"),
and the preferred share purchase rights attached thereto (the
"Rights") (collectively referred to as the "Firm Shares").
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Company has also granted to the Underwriters an
option (the "Option") to purchase up to an additional
[ ] shares of Common Stock and the Rights attached
---------------
thereto (collectively referred to as the "Option Shares"). This
Agreement is the Price Determination Agreement referred to in the
Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement,
the undersigned agrees with the Underwriters as follows:
1. The initial public offering price per share for
the Firm Shares and, if the Option is exercised, the Option
Shares, shall be $[ ].
-------
2. The purchase price per share for the Firm Shares
and, if the Option is exercised, the Option Shares to be paid by
the several Underwriters shall be $[ ], representing an
-------
amount equal to the initial public offering price set forth
above, less $[ ] per share.
-------
The Company represents and warrants to each of the
Underwriters that the representations and warranties of the
Company set forth in Section 4 of the Underwriting Agreement are
accurate as though expressly made at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached
as Schedule 1 is a completed list of the several Underwriters,
which shall be a part of this Agreement and the Underwriting
Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
If the foregoing is in accordance with your
understanding of the agreement among the Underwriters and the
Company, please sign and return to the Company a counterpart
hereof, whereupon this instrument along with all counterparts and
together with the Underwriting Agreement shall be a binding
agreement among the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
MINNESOTA POWER & LIGHT COMPANY
By:
-------------------------------
Name:
Title:
Confirmed:
[ ]
---------------------
By:
--------------------------------------------
Name:
Title:
[ ]
---------------------
By:
--------------------------------------------
Name:
Title:
[ ]
---------------------
By:
--------------------------------------------
Name:
Title:
PRICE DETERMINATION AGREEMENT SIGNATURE PAGE
SCHEDULE 1
UNDERWRITERS
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
ANNEX B-1
FORM OF OPINION OF XXXX & PRIEST LLP
[ , 199 ]
-------------- -
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
Dear Sirs:
Reference is made to the sale by Minnesota Power &
Light Company (the "Company") of an aggregate of
[ ] shares of its Common Stock, without par value
---------------
(the "Common Stock"), and the preferred share purchase rights
attached thereto (the "Rights") (the Common Stock and the Rights
being collectively referred to as the "Shares"). We advise you
that we have acted as counsel to the Company in connection with
such issuance and sale and have participated in the preparation
of (a) Registration Statement No. [333- ], as filed by the
-----
Company with the Securities and Exchange Commission for the
registration of the Shares under the Securities Act of 1933, as
amended (the "Act") (such registration statement, as amended at
the Effective Date (as such term is defined in the Agreement
referred to below), being hereinafter referred to as the
"Registration Statement"); (b) the prospectus constituting part
of the Registration Statement, as amended and supplemented by a
prospectus supplement dated [ , 199 ], relating to the
---------- -
Shares (such prospectus, as so amended and supplemented, being
hereinafter referred to as the "Prospectus"); and (c) the
Underwriting Agreement dated [ , 199 ], between the
---------- -
Company and you (the"Agreement"). In addition, we have reviewed
the petition filed by the Company with the Minnesota Public
Utilities Commission seeking authorization to issue the Shares,
and the order issued by said Commission in response to said
petition.
We have reviewed all corporate proceedings taken by the
Company in respect of the issuance and sale of the Shares.
Upon the basis of our familiarity with these transac-
tions, we are of the opinion that:
1. The Shares when paid for by the Underwriters in
accordance with the terms of the Agreement will be, duly
authorized, validly issued, fully paid and non-assessable and
will not be subject to any preemptive or similar right; and the
Rights will be validly issued.
2. An authorizing order has been issued by the Minne-
sota Public Utilities Commission certifying the Company's capital
structure and authorizing the issuance and sale of the Shares,
and, to the best of our knowledge, said order is still in full
force and effect; and no further approval, authorization, consent
or order of any public board or body (other than in connection or
in compliance with the provisions of the securities or "Blue Sky"
laws of any jurisdiction) is legally required for the authoriza-
tion of the issuance and sale of the Shares.
3. The Registration Statement and the Prospectus
(except as to the financial statements, statement of income and
other financial or statistical data contained therein, upon which
we do not pass) comply as to form in all material respects with
the requirements of the Act and the applicable instructions,
rules and regulations of the Securities and Exchange Commission
thereunder; the Registration Statement has become, and at the
date hereof the Registration Statement is, effective under the
Act, and, to the best of our knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8 of the Act.
4. The statements set forth in the Prospectus under
the captions "Description of Common Stock" and "Description of
Preferred Share Purchase Rights," insofar as they purport to
constitute a summary of the securities, documents and instruments
therein described, are accurate and fairly present the
information contained therein in all material respects.
5. The Agreement has been duly and validly autho-
rized, executed and delivered by the Company and is a valid and
legally binding obligation of the Company.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made or included therein by the
Company and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in the Prospectus
under the heading "Legal Opinions" and in paragraph 4 above. In
the course of the preparation by the Company of the Registration
Statement and the Prospectus, we have had conferences with
certain of its officers and representatives, with other counsel
for the Company and with Price Waterhouse LLP, the independent
certified public accountants who examined certain of the
Company's financial statements incorporated by reference in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus, and our discussions in the
above-mentioned conferences did not disclose to us any informa-
tion which gives us reason to believe that, at the Effective
Date, the Registration Statement 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 at the time it was filed
electronically with the Commission pursuant to Rule 424, and the
Prospectus, as amended or supplemented at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements, statement
of income or other financial or statistical data contained in the
Registration Statement or in the Prospectus.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of Minnesota. As to all
matters of Minnesota law (and as to the incorporation of the
Company, titles to property and franchises, upon which we do not
pass), we have relied with your consent upon the opinion of even
date herewith addressed to you by Xxxxxx X. Xxxxxxxxx, Esq., Vice
President, General Counsel and Corporate Secretary for the
Company.
Very truly yours,
XXXX & PRIEST LLP
ANNEX B-2
FORM OF OPINION OF
XXXXXX X. XXXXXXXXX, ESQ.
VICE PRESIDENT, GENERAL COUNSEL
AND CORPORATE SECRETARY OF
MINNESOTA POWER & LIGHT COMPANY
[ , 199 ]
-------------- -
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
Dear Sirs:
Reference is made to the sale by Minnesota Power &
Light Company (the "Company") of an aggregate of
[ ] shares of its Common Stock, without par value
---------------
(the "Common Stock"), and the preferred share purchase rights
attached thereto (the "Rights") (the Common Stock and the Rights
being collectively referred to as the "Shares"). I advise you
that I have acted as counsel to the Company in connection with
such issuance and sale and have participated in the preparation
of (a) Registration Statement No. [333- ], as filed by the
-----
Company with the Securities and Exchange Commission for the
registration of the Shares under the Securities Act of 1933, as
amended (the "Act") (such registration statement, as amended at
the Effective Date (as such term is defined in the Agreement
referred to below), being hereinafter referred to as the
"Registration Statement"); (b) the prospectus constituting part
of the Registration Statement, as amended and supplemented by a
prospectus supplement dated [ , 199 ], relating to the
---------- -
Shares (such prospectus, as so amended and supplemented, being
hereinafter referred to as the "Prospectus"); and (c) the
Underwriting Agreement dated [ , 199 ], between the
---------- -
Company and you (the"Agreement"). In addition, I have reviewed
the petition filed by the Company with the Minnesota Public
Utilities Commission seeking authorization to issue the Shares,
and the order issued by said Commission in response to said
petition.
I have reviewed all corporate proceedings taken by the
Company in respect of the issuance and sale of the Shares.
Upon the basis of my familiarity with these transac-
tions and with the Company's properties and affairs generally, I
am of the opinion that:
1. The Shares, when paid for by the Underwriters in
accordance with the terms of the Agreement, will be duly
authorized, validly issued, fully paid and non-assessable and
will not be subject to any preemptive or similar right; and the
Rights will be validly issued.
2. An authorizing order has been issued by the Minne-
sota Public Utilities Commission certifying the Company's capital
structure and authorizing the issuance and sale of the Shares,
and, to the best of my knowledge, said order is still in full
force and effect; and no further approval, authorization, consent
or order of any public board or body (other than in connection or
in compliance with the provisions of the securities or "Blue Sky"
laws of any jurisdiction) is legally required for the authoriza-
tion of the issuance and sale of the Shares.
3. The Registration Statement and the Prospectus
(except as to the financial statements, statement of income and
other financial or statistical data contained therein, upon which
I do not pass) comply as to form in all material respects with
the requirements of the Act and the applicable instructions,
rules and regulations of the Securities and Exchange Commission
thereunder; the Registration Statement has become, and at the
date hereof the Registration Statement is, effective under the
Act, and, to the best of my knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8 of the Act.
4. The statements set forth in the Prospectus under
the captions "Description of Common Stock" and "Description of
Preferred Share Purchase Rights," insofar as they purport to
constitute a summary of the securities, documents and instruments
therein described, are accurate and fairly present the
information contained therein in all material respects.
5. The Agreement has been duly and validly autho-
rized, executed and delivered by the Company and is a valid and
legally binding obligation of the Company.
6. The Company is a validly organized and existing
corporation under the laws of the State of Minnesota and is duly
qualified to do business, and is doing business, in that State.
7. The Company is a public utility corporation duly
authorized by its Articles of Incorporation to conduct the
business which it is now conducting as set forth in the Prospec-
tus and the Company holds valid and subsisting franchises,
licenses and permits authorizing it to carry on the utility
business in which it is engaged.
8. Each subsidiary of the Company is a validly
organized and existing corporation under the laws of the State of
its incorporation and is duly qualified to do business, and is
doing business, in such State and in each other State in which
the failure to qualify as a foreign corporation would be material
to the Company and its subsidiaries, taken as a whole.
9. Other than as stated in the Registration Statement
and the Prospectus there are no pending legal proceedings to
which the Company or any subsidiary is a party or of which
property of the Company or any subsidiary is the subject, which
depart from the ordinary routine litigation incident to the kind
of business conducted by the Company or any such subsidiary, and
which is material to the Company and its subsidiaries, taken as a
whole, and, to the best of my knowledge, no such proceedings are
known to be contemplated by governmental authorities.
10. The portions of the answers to the items of the
Registration Statement and the portions of the information
contained in the Prospectus, which are stated therein to have
been made on my authority as General Counsel of the Company, have
been reviewed by me and, as to matters of law and legal
conclusions, are correct.
11. Neither the issue and sale by the Company of the
Shares as contemplated by the Agreement nor the consummation by
the Company of the other transactions contemplated by the Agree-
ment conflicts with, or results in a breach of, the charter or
by-laws of the Company or any subsidiary or any agreement or
instrument known to me to which the Company or any subsidiary is
a party or by which the Company or any subsidiary is bound, any
law or regulation or, so far as is known to me, any order or
regulation of any court, governmental instrumentality or arbitra-
tor.
12. To the best of my knowledge, the Company is not
currently in breach of, or in default under, any material written
agreement or instrument to which it is a party or by which it or
its property is bound or affected, and which breach or default is
material to the Company and its subsidiaries, taken as a whole.
In passing upon the forms of the Registration Statement
and the Prospectus, I necessarily assume the correctness and
completeness of the statements made or included therein by the
Company and take no responsibility therefor, except insofar as
such statements relate to me and as set forth in the Prospectus
under the headings "Experts" and "Legal Opinions" and in
paragraphs 4 and 10 above. In the course of the preparation by
the Company of the Registration Statement and the Prospectus, I
had conferences with certain of its officers and representatives,
with other counsel for the Company and with Price Waterhouse LLP,
the independent certified public accountants who examined certain
of the Company's financial statements incorporated by reference
in the Registration Statement. My examination of the
Registration Statement and the Prospectus, and my discussions in
the above-mentioned conferences did not disclose to me any
information which gives me reason to believe that, at the Effec-
tive Date, the Registration Statement contained an untrue state-
ment 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 at the time it was
filed electronically with the Commission pursuant to Rule 424,
and the Prospectus, as amended or supplemented at the date
hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circum-
stances under which they were made, not misleading. I do not
express any opinion or belief as to the financial statements,
statement of income or other financial or statistical data
included in the Registration Statement or in the Prospectus.
Very truly yours,
Xxxxxx X. Xxxxxxxxx
