EXHIBIT 1
2,000,000 Trust Preferred Securities
WPSR CAPITAL TRUST I
(a Delaware Trust)
7.00% Trust Preferred Securities
(Liquidation Amount of $25 Per Trust Preferred Security)
UNDERWRITING AGREEMENT
----------------------
July 27, 1998
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
WPSR Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (the "Delaware
Act"), and WPS Resources Corporation, a Wisconsin corporation (the "Company"
and, together with the Trust, the "Offerors") confirm their agreement (the
"Agreement") with X.X. Xxxxxxx & Sons, Inc. ("X.X. Xxxxxxx"), Xxxxxx X. Xxxxx
& Co. Incorporated, and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, as underwriters
(collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
7.00% Trust Preferred Securities (liquidation amount of $25 per preferred
security) of the Trust (the "Trust Preferred Securities") set forth in
Schedule A hereto. The Trust Preferred Securities are more fully described in
the Prospectus (as defined below).
The Trust Preferred Securities will be guaranteed by the Company,
to the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Preferred Securities
Guarantee") pursuant to the Trust Preferred Securities Guarantee Agreement
(the "Preferred Securities Guarantee Agreement"), to be dated as of the
Closing Date (as defined below), executed and delivered by the Company and
State Street Bank and Trust Company, as trustee (the "Guarantee Trustee"), for
the benefit of the holders from time to time of the Trust Preferred
Securities, and will be entitled to the benefits of certain backup
undertakings described in the Prospectus with respect to the Company's
agreement pursuant to the Supplemental Indenture (as defined below) to pay all
expenses relating to the administration of the Trust. The Offerors each
understand that the Underwriters propose to make a public offering of the
Trust Preferred Securities as soon as they deem advisable after this Agreement
has been executed and delivered, and the Declaration (as defined below), the
Indenture (as
defined below), and the Preferred Securities Guarantee Agreement have been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The entire proceeds from the sale of the Trust Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Trust Common Securities" and, together with the
Trust Preferred Securities, the "Trust Securities") and will be used by the
Trust to purchase $51,500,000 of 7.00% Junior Subordinated Deferrable Interest
Debentures due 2038 (the "Subordinated Debentures") issued by the Company.
The Trust Common Securities have been guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and amounts payable
upon liquidation or redemption (the "Common Securities Guarantee" and,
together with the "Preferred Securities Guarantee," the "Guarantees") pursuant
to a Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the "Preferred Securities Guarantee Agreement,"
the "Guarantee Agreements"), to be dated as of the Closing Date, executed and
delivered by the Company for the benefit of the holders from time to time of
the Trust Common Securities.
The Trust Preferred Securities and Trust Common Securities will be
issued pursuant to the Amended and Restated Declaration of Trust of the Trust,
to be dated as of the Closing Date (the "Declaration"), among the Company, as
sponsor, State Street Bank and Trust Company, as property trustee (the
"Property Trustee"), First Union Trust Company, National Association, as
Delaware trustee (the "Delaware Trustee"), and Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxx, as administrative trustees (the "Administrative Trustees" and,
together with the Property Trustee and the Delaware Trustee, the "Trustees"),
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust. The Subordinated Debentures will be issued pursuant to
an indenture, to be dated as of the Closing Date (the "Base Indenture"),
between the Company and State Street Bank and Trust Company, as trustee (the
"Debt Trustee"), and a supplement to the Base Indenture, to be dated as of the
Closing Date (the "Supplemental Indenture," and, together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture")
between the Company and the Debt Trustee. The Trust Preferred Securities, the
Preferred Securities Guarantee, and the Subordinated Debentures are
hereinafter collectively referred to as the "Securities."
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-56737), as amended by Pre-Effective Amendment No. 1 thereto (No.
333-56737-01), 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 the execution and
delivery of this Agreement, the Offerors will 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.
The information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to
be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A 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, is herein called the "Registration Statement." The final
prospectus, including 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
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"Prospectus." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained,""included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Offerors. The
Offerors jointly and severally represent and warrant to each Underwriter as of
the date hereof and as of the Closing Time referred to in Section 2(c) hereof
and agree with each Underwriter as follows.
(i) Compliance with Registration Requirements. Each of the
Offerors meets the requirements for use of Form S-3 under the 1933 Act
and the 1933 Act Regulations. The Registration Statement has become
effective under the 1933 Act, and no stop order suspending the
effectiveness of such 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 Offerors, threatened by the
Commission. The Offerors have complied with any request on the part of
the Commission for additional information.
At the time that the Registration Statement and any post-effective
amendments thereto became effective, on the date hereof, and at the
Closing Time, the 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, on the date hereof and at the Closing Time,
included or will include an untrue statement of 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. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement, any amendment or supplement thereto, or the
Prospectus made in reliance upon and in conformity with information
furnished to the Offerors in writing by an Underwriter through X.X.
Xxxxxxx expressly for use in the Registration Statement, any amendment
or supplement thereto, or the Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereof, or filed pursuant to Rule 424 under the
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1933 Act, complied or will comply 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 the
offering of the Securities was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T under the 1933 Act
Regulations.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
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 under the 1934 Act (the "1934 Act Regulations"), and, at the
time the Registration Statement and any amendments thereto 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) Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus,
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(iv) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement are independent public
accountants with respect to the Company as required by the 1933 Act and
the 1933 Act Regulations.
(v) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
results of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
such 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 Company's ratios of earnings to fixed charges and ratios
of earnings to combined fixed charges and preferred dividend
requirements included in the Prospectus under the caption "Ratio of
Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preferred Dividend Requirement" and in Exhibit 12 to the Registration
Statement have been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. The financial information and
statistical data set forth in the Prospectus under the captions
"Selected Historical Consolidated Financial Data" and "Capitalization"
present fairly the information shown therein and have been derived from
the audited financial statements included in the Registration Statement.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any amendment thereto, and the Prospectus and except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries, considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered
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as one enterprise, or of the Trust, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there
have been no material transactions entered into or material liabilities
or obligations, direct or contingent, incurred by the Company or its
subsidiaries, other than those contemplated by the Prospectus or in the
ordinary course of business, and (C) except for regular dividends, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock and there has been no
change in the capital stock of the Company or, except for borrowings
under existing revolving credit agreements consistent with past
practices and the accrual of interest on long-term debt of the Company's
Employee Stock Ownership Plan that is guaranteed by WPSC, there has been
no material change in the long-term debt of the Company.
(vii) Due Incorporation and Status of the Company. The Company
has been duly incorporated and is validly existing as a corporation
under the laws of the State of Wisconsin with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus; the Company has not
filed Articles of Dissolution with the Secretary of State of the State
of Wisconsin, and no grounds exist for the Secretary of State of the
State of Wisconsin to dissolve such corporation administratively
pursuant to the provisions of the Wisconsin Business Corporation Law.
(viii) Due Incorporation and Good Standing of the Company's
Subsidiaries. Each of Wisconsin Public Service Corporation ("WPSC"),
WPS Energy Services, Inc. ("ESI"), and WPS Power Development, Inc.
("PDI") has been duly incorporated and is validly existing as a
corporation under the laws of the State of Wisconsin, with power and
authority (corporate and other) to own, lease and operate its properties
and conduct its business as described in the Prospectus; neither WPSC,
ESI, or PDI has filed Articles of Dissolution with the Secretary of
State of the State of Wisconsin, and no grounds exist for the Secretary
of State of Wisconsin to dissolve any of them administratively pursuant
to the provisions of the Wisconsin Business Corporation Law; each of
WPSC, ESI and PDI is duly qualified to do business as a foreign
corporation 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 to so
qualify or to be in good standing would not result in a Material Adverse
Effect.
(ix) Authorization of Stock of the Company. All of the
outstanding shares of capital stock of the Company have been duly and
validly issued, are fully paid and non-assessable, and are not subject
to the preemptive rights of any shareholder of the Company.
(x) Authorization and Ownership of Stock of Subsidiaries. All
of the issued and outstanding shares of common stock of WPSC, ESI and
PDI have been duly and validly issued, are fully paid and
non-assessable, and are owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of WPSC, ESI or PDI was
issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. Other than WPSC, ESI and PDI, the
Company has no subsidiaries which, either individually or considered in
the aggregate as a single subsidiary, constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(xi) Existence and Good Standing of the Trust. The Trust has
been duly created and is validly existing as a statutory business trust
in good standing under the laws of the State of
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Delaware, with power and authority to own its properties and conduct its
business as described in the Prospectus and has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Prospectus; the Trust has no liabilities
or obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described in the
Prospectus and is not a party to or otherwise bound by any agreement
other than those described in the Prospectus; the Trust is duly
qualified to transact business as a foreign corporation in good standing
under the laws of each jurisdiction in which such qualification is
necessary, except to the extent that the failure to so qualify would not
have a Material Adverse Effect; the Trust is and, under current law,
will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; the
Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to GAAP; the Trust has no subsidiaries.
(xii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Offerors.
(xiii) Authorization of the Declaration. The Declaration has
been duly authorized by the Company; each of the Administrative Trustees
of the Trust is an employee of the Company or WPSC and has been duly
authorized by the Company to execute and deliver the Declaration; at the
Closing Time, the Declaration will have been duly executed and delivered
by the Company and the Administrative Trustees, and assuming due
authorization, execution and delivery by the Property Trustee and the
Delaware Trustee, be a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the Company and the
Administrative Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity) (the "Bankruptcy Exceptions"); the Declaration has been
duly qualified under the 1939 Act; the Declaration conforms to all
statements relating thereto contained in the Prospectus.
(xiv) The Trust Common Securities. The Trust Common Securities
have been duly authorized by the Declaration and, when issued and
delivered by the Trust to the Company in accordance with the terms of
the Declaration and against payment therefor as described in the
Prospectus, will be validly issued undivided beneficial interests in the
assets of the Trust; the issuance of the Trust Common Securities is not
subject to preemptive or other similar rights; no holder of Trust Common
Securities will be subject to personal liability by reason of being such
a holder; at the Closing Time, all of the issued and outstanding Trust
Common Securities will be directly owned by the Company, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; the Trust Common Securities conform to all statements relating
thereto contained in the Prospectus.
(xv) The Trust Preferred Securities. The Trust Preferred
Securities have been duly and validly authorized and, when issued and
delivered pursuant to this Agreement against payment therefor as
provided herein, will be validly issued and (subject to the terms of the
Declaration) fully paid and nonassessable undivided beneficial interests
in the assets of the Trust and will be entitled to the benefits of the
Declaration; the issuance of the Trust Preferred Securities is not
subject to preemptive or other similar rights; holders of Trust
Preferred Securities will be entitled
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to the same limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General
Corporation Law of the State of Delaware; the Trust Preferred Securities
conform to all statements relating thereto contained in the Prospectus.
(xvi) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, when validly executed and delivered by
the Company, and assuming the due authorization, execution and delivery
of the Indenture by the Debt Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; the Indenture has been duly
qualified under the 1939 Act; and the Indenture conforms to all
statements relating thereto contained in the Prospectus.
(xvii) Authorization of the Subordinated Debentures. The
Subordinated Debentures have been duly authorized by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions;
the Subordinated Debentures are subordinate and junior in right of
payment to all "senior indebtedness" (as defined in the Supplemental
Indenture) of the Company; the Subordinated Debentures conform to all
statements relating thereto contained in the Prospectus.
(xviii) Authorization of Guarantee Agreements. Each of the
Guarantee Agreements has been duly authorized by the Company and, when
executed and delivered by the Company, and in the case of the Preferred
Securities Guarantee Agreement, assuming due authorization, execution
and delivery by the Guarantee Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; the Preferred Securities
Agreement has been duly qualified under the 1939 Act; the Company's
obligations under the Preferred Securities Guarantee are subordinate and
junior in right of payment to all liabilities of the Company and will be
pari passu with the most senior preferred or preference stock of the
Company and with any guarantees of the Company entered into with respect
to any preferred or preference securities of an affiliate of the
Company; each of the Guarantees and the Guarantee Agreements conform to
the statements relating thereto contained in the Prospectus.
(xix) Absence of Defaults and Conflicts by the Company. Neither
the Company nor any of its subsidiaries is in violation of its articles
of incorporation or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any bond, debenture, note or other evidence of indebtedness or in any
indenture, mortgage, joint venture agreement, deed of trust, loan or
credit agreement, 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 properties or assets of the Company or
any subsidiary is subject (collectively, the "Agreements and
Instruments"), except for such defaults that would not result in a
Material Adverse Effect; the issuance by the Company of the Subordinated
Debentures and the Guarantees, the compliance by the Company with all of
the provisions of this Agreement, the use of the proceeds from the sale
of the Securities as described in the Prospectus under the caption "Use
of Proceeds," the execution, delivery and performance by the Company of
the Declaration, the Guarantees, the Indenture, and the Subordinated
Debentures, the distribution by the Company
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of the Subordinated Debentures upon the liquidation of the Trust in the
circumstances contemplated by the Declaration and described in the
Prospectus, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
of the Agreements or Instruments, nor will such action result in any
violation of the provisions of the articles of incorporation or by-laws
of the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties.
(xx) Absence of Conflicts by the Trust. The issuance and sale of
the Trust Preferred Securities and the Trust Common Securities by the
Trust, the compliance by the Trust with all of the provisions of this
Agreement, the purchase of the Subordinated Debentures by the Trust from
the Company, the distribution of the Subordinated Debentures upon the
liquidation of the Trust in the circumstances contemplated by the
Declaration and described in the Prospectus, and the consummation by the
Trust of the transactions contemplated herein and in the Declaration
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any agreement or
instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor
will such action result in any violation of the provisions of the
Declaration or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Trust or any
of its properties.
(xxi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Offerors
of their obligations hereunder or in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state securities
laws.
(xxii) 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 or the Trust, threatened, against or
affecting the Company or any of its subsidiaries 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 (other than as disclosed therein) or adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Offerors of their obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, would not, if adversely determined, result
in a Material Adverse Effect. 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 or the Trust, threatened, against or affecting the Trust.
(xxiii) Investment Company Act. Neither the Company nor the
Trust is, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds
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therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxiv) Listing of the Trust Preferred Securities. The Trust
Preferred Securities have been approved for listing on the New York
Stock Exchange.
(xxv) Public Utility Holding Company Act Compliance. Except for
the Company, no person or corporation which is a "holding company" or a
"subsidiary of a holding company" within the meaning of such terms as
defined in the Public Holding Company Act of 1935, as amended (the "1935
Act"), directly or indirectly owns, controls or holds with power to vote
10% or more of the outstanding voting securities of WPSC; the Company is
exempt from all of the provisions of the 1935 Act except Section
9(a)(2); neither the Company nor WPSC is a registered holding company as
defined in the 1935 Act.
(xxvi) Possession of Statutory Authority and Franchises.
Each of the Company, WPSC, ESI, and PDI has statutory authority,
franchises, and consents free from burdensome restrictions and adequate
for the conduct of the business in which it is engaged.
(xxvii) Restrictions on Dividends. The Prospectus accurately
describes the most restrictive of the existing limitations on the
payment of dividends by WPSC on the shares of common stock of WPSC held
by the Company.
(b) Officer and Trustee Certificates. Any certificate signed by
any officer of the Company or any of its subsidiaries or by a Trustee of the
Trust that is delivered to the Underwriters shall be deemed a representation
and warranty by the Company or the Trust, as the case may be, to each
Underwriter as to the matters stated therein.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Purchase Price. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to issue and sell to each Underwriter, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per Trust Preferred Security set forth in Schedule B, the number of
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter (except as otherwise provided in Schedule B), plus any additional
number of Trust Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Underwriters' Compensation. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Trust Preferred Securities will be used to
purchase the Subordinated Debentures of the Company, the Company hereby agrees
to pay at Closing Time to X.X. Xxxxxxx, for the accounts of the several
Underwriters, a commission per Trust Preferred Security set forth in Schedule
B for the Preferred Securities to be delivered by the Trust hereunder at
Closing Time.
(c) Payment. The Trust Preferred Securities to be purchased by
each Underwriter hereunder will be represented by a global certificate or
certificates in book entry form which will be
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deposited by or on behalf of the Trust with The Depository Trust Company
("DTC") or its designated nominee and registered in the name of Cede & Co.,
as nominee of DTC. The Trust will deliver the Trust Preferred Securities to
X.X. Xxxxxxx, for the account of each Underwriter, against payment by and
behalf of such Underwriter of the purchase price therefor, by causing DTC to
credit the Trust Preferred Securities to the account of X.X. Xxxxxxx at DTC.
Payment of the purchase price shall be made to the Trust by wire transfer of
immediately available funds to a bank account designated by the Trust. It is
understood that each Underwriter has authorized X.X. Xxxxxxx, for its account,
to accept delivery of, issue receipt for, and make payment of the purchase
price for, the Trust Preferred Securities which it has agreed to purchase.
Such delivery and payment shall be made at the offices of Xxxxx & Xxxxxxx, 000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 or at such other place as
shall be agreed upon by the Company, the Trust and the Underwriters, at 9:00
A.M. (central 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 Underwriters, the Company, and the Trust (such time and date of
payment and delivery being herein called the "Closing Time").
At Closing Time the Company will pay, or cause to be paid, the
commission payable at such time under this Section 2 to a bank account
designated by X.X. Xxxxxxx, on behalf of the Underwriters, by wire transfer of
immediately available funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly
and severally covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Offerors, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify X.X.
Xxxxxxx immediately, on behalf of the Underwriters, 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
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 Offerors will promptly
effect the filings necessary pursuant to Rule 424 (b) and will take such steps
as they deem 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, they will promptly file such
prospectus. The Offerors 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 Offerors will give the
Underwriters notice of their intention to file or prepare any amendment to
the Registration Statement 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 Underwriters 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 Underwriters
or counsel for the Underwriters shall reasonably object.
10
(c) Delivery of Registration Statements. The Offerors have
furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, such number of signed and conformed 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. 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 Offerors 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 Offerors
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Offerors, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Offerors 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 Offerors 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 Offerors will use their
reasonable 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 Underwriters may designate and to
maintain such qualifications in effect for as long as may be necessary to
complete the distribution of the Trust Preferred Securities; provided,
however, that neither the Company nor the Trust shall 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.
(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 their respective 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.
11
(h) Use of Proceeds. The Trust will use the proceeds received
by it from the sale of the Trust Securities in the manner specified in the
Prospectus under "Use of Proceeds." The Company will use the proceeds received
by it from the sale of the Subordinated Debentures 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, neither the Trust nor the Company will,
without the prior written consent of X.X. Xxxxxxx, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose
of, any Trust Preferred Securities, any security convertible into or
exchangeable into or exercisable for Trust Preferred Securities or the
Subordinated Debentures or any subordinated debt securities substantially
similar to the Subordinated Debentures or equity securities substantially
similar to the Trust Preferred Securities (except for the Subordinated
Debentures and the Trust Preferred Securities issued pursuant to this
Agreement).
(j) Existence and Good Standing of the Trust. So long as any
Trust Preferred Securities are outstanding, the Trust will continue its
existence in good standing as a business trust under the Delaware Act with
power and authority to own property and conduct its business as described in
the Prospectus, and the Trust will remain duly qualified to transact business
as a foreign corporation in good standing in each jurisdiction in which such
qualification is necessary, except to the extent that the failure to so
qualify would not have a Material Adverse Effect on the Trust.
(k) 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.
(l) Issuance of Guarantee and Subordinated Debentures. The
Company shall issue the Guarantees and the Subordinated Debentures
concurrently with the issuance and sale of the Trust Preferred Securities as
contemplated herein.
(m) Listing of Subordinated Debentures. The Offerors will file
all documents and notices and take such further actions as may be required to
continue to list the Trust Preferred Securities on the New York Stock
Exchange. If the Trust Preferred Securities are exchanged for Subordinated
Debentures, the Company will use its best efforts to effect the listing of the
Subordinated Debentures on the New York Stock Exchange.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of each Offeror's obligations under
this Agreement, including, but not limited to, (i) the preparation,
reproduction and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, reproduction, and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Trust Preferred Securities to the
Underwriters, the Trust Common Securities to the Company, and the
Subordinated Debentures to the Trust, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance, or
delivery of the Securities, (iv) the fees and disbursements of the Trust's
counsel, accountants and other advisors, (v) any fees charged by Standard &
Poor's Ratings Services ("S&P") or Xxxxx'x Investors Services, Inc.
("Moody's") (each, a "Rating Agency") for rating the Trust Preferred
Securities,
12
(vi) all fees and expenses in connection with the listing of the Trust
Preferred Securities and, if applicable, the Subordinated Debentures, on
the New York Stock Exchange, (vii) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (viii) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, the Prospectus, and any amendments or supplements thereto, (ix)
the preparation, reproduction and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (x) the fees and expenses of
any transfer agent or registrar for the Securities,(xi) the fees and expenses
of the Debt Trustee, including the fees and reimbursements of counsel for the
Debt Trustee in connection with the Indenture and the Subordinated Debentures,
(xii) the fees and expenses of the Property Trustee and the Guarantee Trustee,
including the fees and disbursements of counsel for the Property Trustee in
connection with the Declaration and the Certificate of Trust, and
(xiii) the cost of qualifying the Trust Preferred Securities with The
Depository Trust Company.
(b) Termination of Agreement. If this Agreement is terminated by
the Underwriters in accordance with the provisions of Section 5 or
Section 10(b) hereof, the Company shall reimburse the Underwriters for all
of their reasonable out-of-pocket expenses, including the 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 Offerors contained in Section 1 hereof
or in certificates of any officer of the Company or any subsidiary or of any
Trustee of the Trust delivered pursuant to the provisions hereof, to the
performance by the Offerors of their covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) and Rule
430A(a)(3), if applicable, within the applicable time period prescribed for
such filing by the 1933 Act Regulations, and no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission.
(b) Opinion of Counsel for Offerors. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx & Xxxxxxx, counsel for the Offerors, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth in
Exhibit A hereto.
(c) Opinion of Special Delaware Counsel for Offerors. At
Closing Time, the Underwriters shall have received the favorable opinion,
dated as of Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel for the Offerors, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for Trustees. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx Xxxx LLP, counsel for the Property Trustee, the Debt
Trustee, and the Guarantee Trustee, and Xxxxxxxx, Xxxxxx & Finger, P.A.,
counsel for the Delaware Trustee, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit C and
Exhibit D, respectively.
13
(e) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx Xxxxxx & Xxxxx, counsel for the Underwriters, with respect
to the validity of the Trust Preferred Securities, the Registration Statement,
the Prospectus and other related matters as the Underwriters may reasonably
request (it being understood that such counsel may rely as to all matters of
Wisconsin law and legal conclusions based thereon upon the opinion of counsel
for the Company referred to in Section 5(b) and to all matters of Delaware law
and legal conclusions based thereon upon the opinion of counsel referred to in
Section 5(c) hereof). 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
of Trustees of the Trust, and certificates of public officials.
(f) Officer and Trustee Certificates. At the 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 Underwriters shall have received certificates 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 (A) there
has been no such material adverse change, (B) 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, (C) the Company
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (D) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to the
best knowledge of the Company, are contemplated by the Commission.
(g) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Xxxxxx Xxxxxxxx
LLP a letter, dated as of the date hereof, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
applicable 1933 Act Regulations;
(ii) in their opinion, the audited consolidated financial
statements and financial statement schedule(s) incorporated by reference
in the Registration Statement and the Prospectus and included in the
Form 10-K comply as to form in all material respects with the applicable
accounting requirements of the Act, the 1933 Act Regulations, the 0000
Xxx and the applicable 1934 Act Regulations;
(iii) on the basis of (A) the performance of procedures specified
by the American Institute of Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards
No. 71, Interim Financial Information, on the unaudited consolidated
balance sheets, the unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated statements of cash
flows, of the Company and its subsidiaries included in the Company and
WPSC's quarterly reports on Form 10-Q filed with the Commission under
Section 13 of the 1934 Act (the "Form 10-Q's) subsequent to the Form
10-K, (B) a reading of the latest available unaudited financial
statements of the Company and its subsidiaries, (C) a reading of the
minutes of the Annual Meeting of Shareholders and the latest minutes of
meetings
14
of the Board of Directors of the Company as set forth in the minute books
for the current year, and (D) inquiries of the officers of the Company
who have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit made
in accordance with GAAP and would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Xxxxxx Xxxxxxxx LLP makes no representation as to the
sufficiency of such procedures for the purposes of the several
Underwriters), nothing has come to their attention which caused them to
believe that (1) any material modifications should be made to the
unaudited consolidated financial statements included in the Form 10-Q's
for them to be in conformity with GAAP; (2) the unaudited consolidated
financial statements included in the Form 10-Q's do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations, as they apply
to Form 10-Q, or (3) at the date of the latest available consolidated
financial statements and at a specified date not more than three
business days prior to the date of such letter, there was any change in
the consolidated capital stock or increase in the consolidated long-term
debt of the Company and its subsidiaries or any decrease in the
consolidated net assets or shareholders' equity of the Company, in each
case as compared with the amounts shown in the most recent consolidated
balance sheet of the Company incorporated by reference into the
Registration Statement and the Prospectus or, during the period from the
date of such balance sheet to a specified date not more than three
business days prior to the date of such letter, upon inquiries of the
appropriate officers of the Company, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated operating revenues, consolidated net income or earnings per
share, except in each case as set forth in or contemplated by the
Registration Statement and the Prospectus or except for such exceptions
enumerated in such letter as shall have been agreed to by the
Underwriters and the Company; and
(iv) in addition to the audits referred to in their report
appearing in the Form 10-K incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
percentages, and financial information which are included or
incorporated by reference in the Registration Statement and the
Prospectus and which are specified by the Underwriters, and have found
such amounts, percentages, and financial information to be in agreement
with the relevant accounting, financial and other records of the Company
and its subsidiaries identified in such letter.
(h) Bring-down Comfort Letter. At Closing Time, the Underwriters
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 (h) of this Section, except that the
specified date referred to shall be a date not more than three calendar days
prior to Closing Time.
(i) Maintenance of Ratings. At Closing Time, the Trust
Preferred Securities shall be rated at least AA- by S&P and a1 by Moody's; and
the Company shall have delivered to the Underwriters a letter, dated the
Closing Time, from each such rating agency, or other evidence satisfactory to
the Underwriters, confirming that the Trust Preferred Securities have such
ratings; since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Trust Preferred Securities or any of
the other securities of the Company or WPSC by S&P or Moody's, and neither S&P
or Moody's shall have publicly announced that it has under surveillance or
review its rating of the Trust Preferred Securities or any of the Company's or
WPSC's securities.
15
(j) Execution of Agreements. The Declaration, the Preferred
Securities Guarantee and the Indenture shall have been executed and delivered,
in each case in a form reasonably satisfactory to the Underwriters.
(k) Approval of Listing. The Trust Preferred Securities shall
have been duly listed, subject to official notice of issuance, on the New York
Stock Exchange.
(l) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by
the Offerors in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and their counsel.
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
X.X. Xxxxxxx, on behalf of the Underwriters, by notice to the Offerors at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Offerors jointly and
severally agree 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) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus 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 any such
settlement is effected with the written consent of the Trust and the
Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by X.X. Xxxxxxx) reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body,
16
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, at the time that such expense is incurred, 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 X.X. Xxxxxxx expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further,
that this indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such loss, liability, claim, damage or expenses purchased Securities, or any
person controlling such Underwriter, if the Offerors sustain the burden of
proving that a copy of the Prospectus (as then amended or supplemented if the
Company or the Trust shall have furnished any such amendments or supplements
thereto, but excluding documents incorporated or deemed to be incorporated by
reference therein), was not sent or given by or on behalf of such Underwriter
to such person, if such is required by law, at or prior to the written
confirmation of the sale of such Securities to such person and if the
Prospectus (as so amended or supplemented, but excluding documents
incorporated or deemed to be incorporated by reference therein) would have
corrected the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no application if
such defect shall have been corrected in a document which is incorporated or
deemed to be incorporated by reference in the Prospectus.
(b) Indemnification of Company, Trust, Officers, Directors and
Trustees. Each Underwriter severally agrees to indemnify and hold harmless
the Trust, each of the Trustees of the Trust, the Company, the Company's
directors, each of the Company's officers who signed the Registration
Statement, and each person, if any, who controls the Trust or 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) 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 X.X. Xxxxxxx
expressly for use in the Registration Statement (or any amendment thereto) or
in 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 X.X. Xxxxxxx, and, in the case of parties indemnified pursuant
to Section 6(b) above, counsel to the indemnified parties shall be selected by
the Company, in each case reasonably acceptable to the indemnifying party. 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
17
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.
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 Offerors 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 Offerors 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 Offerors 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 Trust and the total underwriting commission received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear
to the aggregate initial public offering price of the Securities as set forth
on such cover.
The relative fault of the Offerors 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 Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Offerors 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.
18
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 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 Trustee of the Trust, and each person, if
any, who controls the Company or the Trust, 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 and the Trust. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Trust Preferred Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS AND WARRANTIES 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 or in
certificates of Trustees of the Trust 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 or the Trust, and shall survive delivery of the Trust Preferred
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT
(a) Termination; General. The Underwriters may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the 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, or the Trust, 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 judgment of the Underwriters,
impracticable to market the Trust Preferred Securities or to enforce contracts
for the sale of the Trust Preferred Securities, or (iii) if trading in any
securities of the Company or the Trust has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the New York Stock Exchange 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 governmental authority, or (iv) if a banking moratorium
has been declared by either Federal or New York authorities.
19
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. DEFAULT BY ONE OR MORE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Trust Preferred
Securities (other than for some reason to justify, in accordance with the
provisions hereof, the cancellation or termination of its or their obligations
hereunder) which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), X.X. Xxxxxxx 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, X.X. Xxxxxxx
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Trust Preferred Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Trust Preferred Securities to be purchased on such date, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either X.X. Xxxxxxx or the Offerors shall have the right to
postpone the 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.
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 X.X. Xxxxxxx at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, attention Xxxxxx X. Xxxxxxxx, and notices
to the Trust and the Company shall be directed to them at 000 Xxxxx Xxxxx
Xxxxxx, P. O. Xxx 00000, Xxxxx Xxx, Xxxxxxxxx 00000, attention
Xxxxx X. Xxxxxx.
SECTION 12. PARTIES. This Agreement shall each inure to the benefit
of and be binding upon the Underwriters, the Company and the Trust, 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, the Company and the Trust, and their respective
successors and the controlling persons and officers, directors and trustees
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, the Company, and the Trust, and their
20
respective successors, and said controlling persons and officers, directors
and trustees 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 NEW YORK.
SPECIFIED TIMES OF DAY REFER TO CENTRAL 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.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Trust a counterpart
hereof, whereupon this instrument, along with all counterparts, will become
a binding agreement between the Underwriters, the Company and the Trust in
accordance with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, President, and Chief
Executive Officer
WPSR CAPITAL TRUST I
By: WPS Resources Corporation,
as sponsor
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXXX & SONS, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: X.X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Managing Director
22
SCHEDULE A
List of Underwriters
Number of Trust
Name of Underwriter Preferred Securities
------------------- --------------------
X. X. Xxxxxxx & Sons, Inc.. . . . . . . . . . . . . .666,668
Xxxxxx X. Xxxxx & Co. Incorporated. . . . . . . . . .666,666
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated. . . . . . . . .666,666
---------
Total . . . . . . . . . . . . . . . . . . . . . . .2,000,000
23
SCHEDULE B
Pricing Information
WPS Resources Corporation.
WPSR Capital Trust I
2,000,000
7.00% Trust Preferred Securities
1. The initial public offering price per security for the Trust
Preferred Securities, determined as provided in Section 2, shall be $25.
2. The purchase price per security for the Trust Preferred
Securities to be paid by the several Underwriters shall be $25.
3. The compensation per Trust Preferred Security to be paid by the
Company to the several Underwriters in respect of their commitments hereunder
shall be $0.7875 ($1,575,000 in the aggregate).
24
EXHIBIT A
Form of Opinion of Offerors' Counsel
(To Be Delivered pursuant to Section 5(b))
(i) The Company, WPSC, ESI and PDI have each been duly incorporated
and are validly existing and in active status as corporations under the laws
of the State of Wisconsin with power and authority (corporate and other) to
own their properties and conduct their present businesses as described in the
Prospectus. To the best of such counsel's knowledge and information, each of
the Company and WPSC is duly qualified to do business as a foreign corporation
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 to so qualify or to be in good standing
would not result in a Material Adverse Effect. The Company has corporate power
to enter into and perform its obligations under the Underwriting Agreement.
(ii) All of the issued and outstanding common stock of the Company,
WPSC, ESI and PDI has been duly and validly issued and is fully paid and
non-assessable, except with respect to wage claims of employees of the Company
as provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law, as such statutory provision has been judicially interpreted. The Company
is the record owner of all of the issued and outstanding common stock of WPSC,
ESI, and PDI.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Trust.
(iv) The Declaration has been duly authorized, executed and delivered
by the Company and the Administrative Trustees, and constitutes a valid and
binding obligation of the Company and each of the Administrative Trustees,
enforceable against the Company and each of the Administrative Trustees in
accordance with its terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions; the Declaration conforms as to legal matters to the
description thereof in the Prospectus; the Declaration has been duly qualified
under the 1939 Act.
(v) The Trust Common Securities have been duly authorized and, when
issued, delivered and paid for in accordance with the Declaration and as
described in the Prospectus, will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust; the
issuance of the Trust Common Securities is not subject to preemptive or other
similar rights; the Trust Common Securities conform as to legal matters to the
description thereof in the Prospectus.
(vi) The Trust Preferred Securities have been duly authorized, and when
issued, delivered and paid for by the Underwriters pursuant to the
Underwriting Agreement, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the issuance of
the Trust Preferred Securities is not subject to preemptive or other similar
rights; the Trust Preferred Securities conform as to legal matters to the
descriptions thereof in the Prospectus.
(vii) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions; the Indenture
25
has been duly qualified under the 1939 Act; the Indenture conforms as to legal
matters to the description thereof in the Prospectus.
(viii) The Subordinated Debentures have been duly authorized,
executed and delivered by the Company, and when authenticated by the Trustee
in the manner provided in the Indenture and delivered against payment
therefor, will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company
in accordance with their terms, except as enforcement thereof may be limited
by the Bankruptcy Exceptions; the Subordinated Debentures conform as to legal
matters to the description thereof in the Prospectus.
(ix) Each of the Guarantee Agreements has been duly authorized,
executed and delivered, and the Preferred Securities Guarantee Agreement
constitutes a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by the Bankruptcy Exceptions; the Preferred Securities
Guarantee Agreement has been duly qualified under the 1939 Act; the Guarantees
and the Guarantee Agreements conform as to legal matters to the descriptions
thereof in the Prospectus.
(x) Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in
the 1940 Act.
(xi) 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 such counsel's knowledge and information, 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.
(xii) The Registration Statement, the Prospectus, 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 and supporting schedules
included or incorporated by reference therein as to which such counsel need
express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the
1939 Act Regulations.
(xiii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included or
incorporated by reference therein as to which such counsel need 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 1934 Act
Regulations.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company, its subsidiaries, or the Trust are
a party are accurate in all material respects; to the best of such counsel's
knowledge and information, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof
are correct in all material respects.
26
(xv) Such counsel's opinion set forth under "United States Federal
Income Taxation" is confirmed.
(xvi) To the best of such counsel's knowledge and information,
(a) neither the Company, WPSC, ESI or PDI is in violation of its charter or
by-laws, the Trust is not in violation of the Declaration, and (b) neither
the Company, WPSC, ESI, PDI or the Trust has defaulted 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, which defaults remain uncured and
are, in the aggregate, material to the Company and its subsidiaries considered
as one enterprise, or to the Trust.
(xvii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority (other than under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, as to which such counsel need express no opinion) is
necessary or required in connection with the due authorization, execution and
delivery of the Underwriting Agreement, the offering, issuance, sale or
delivery of the Securities, the issuance and sale of the Trust Common
Securities, or the performance by the Company and the Trust of their
respective obligations pursuant to the Underwriting Agreement.
(xviii) To the best of such counsel's knowledge and other than set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is subject that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in the Underwriting Agreement
or the performance by the Company or the Trust of their respective
obligations thereunder and, to the best of knowledge of such counsel, no such
proceedings are overtly threatened by governmental authorities or others.
(xix) The execution, delivery and performance of the Underwriting
Agreement, the Declaration, the Indenture, and the Guarantee Agreements,
the consummation by the Company and the Trust of the transactions contemplated
thereby and in the Registration Statement (including the issuance and sale of
the Securities), the filing of the Certificate of Trust with the Secretary of
State of the State of Delaware, and compliance by the Company and the Trust
with the terms of the foregoing 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 a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries or the Trust pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument known to such counsel to which the Company or any of
its subsidiaries or the Trust 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 of its
subsidiaries or the Trust 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 of its
subsidiaries, or the Declaration, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to such counsel, of any
government, government instrumentality, or court (other than the securities or
blue sky laws of the various states, as to which such counsel need express no
opinion) (except for the indemnification
27
provisions which may be unenforceable as against public policy under certain
circumstances), having jurisdiction over the Company or any of its
subsidiaries or the Trust or any of their respective properties, assets or
operations.
(xx) Each of the Company, WPSC, ESI, and PDI has statutory authority,
franchises, and consents free from burdensome restrictions and adequate for
the conduct of the business in which it is engaged as of the date hereof, as
described in the Prospectus, except to the extent that the absence of such
statutory authority or the failure to obtain such franchises or consents would
not have a Material Adverse Effect on the Company and its subsidiaries,
considered as one enterprise.
Such counsel should also state, in its opinion, that nothing has
come to its attention that leads it to believe that the Registration Statement
or any amendment thereto (except for financial statements and schedules and
other financial data included or incorporated by reference therein, as to
which such counsel need 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 data included or
incorporated by reference therein, as to which such counsel need 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 (A) may rely, as to
matters of Delaware law relating to the Trust, the Trust Securities and the
Declaration, upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel to the Company and the Trust, which shall be delivered in
accordance with Section 5(c) of the Underwriting Agreement, (B) may assume, as
to matters of New York law relating to the Indenture, the Subordinated
Debentures, the Guarantee Agreements, and the Underwriting Agreement, that New
York law does not differ from Wisconsin law in any material respect and may
appropriately qualify its opinion with respect to the enforceability of the
choice of law provisions, and (C) may rely, as to matters of fact (but not as
to legal conclusions), to the extent it deems proper, on certificates of
responsible officers of the Company, the Trustees and public officials.
28
EXHIBIT B
Form of Opinion of Special Delaware Counsel for the Company and the Trust
(To Be Delivered pursuant to Section 5(c))
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Declaration, the Trust has the
trust power and authority to own property and conduct its business, all as
described in the Prospectus.
(iii) Under the Delaware Act and the Declaration, the Trust has the
trust power and authority to (a) execute and deliver, and to perform its
obligations under the Underwriting Agreement, (b) to issue and perform its
obligations under the Trust Securities and (c) to purchase and hold the
Subordinated Debentures.
(iv) Under the Delaware Act and the Declaration, the execution and
delivery by the Trust of the Underwriting Agreement and the performance by the
Trust of its obligations thereunder have been duly authorized by all necessary
trust action on the part of the Trust.
(v) The Declaration constitutes a valid and binding obligation of the
Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms, subject to the effect upon
enforceability of the Declaration of (i) applicable bankruptcy, insolvency,
reorganization, liquidation, moratorium, receivership, fraudulent conveyance
or transfer and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(vi) The Trust Preferred Securities have been duly authorized by the
Declaration, and when issued, delivered and paid for by the Underwriters
pursuant to the Underwriting Agreement will be validly issued, fully paid
and non-assessable undivided beneficial interests in the assets of the
Trust; the holders of the Trust Preferred Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; provided that such
counsel may note that holders of Trust Preferred Securities will be required
to make certain payments described in the Declaration; under the Delaware Act,
the certificate attached to the Declaration as Exhibit A-l is an appropriate
form of certificate to evidence ownership of the Trust Preferred Securities.
(vii) The Trust Common Securities have been duly authorized by the
Declaration and, when issued, delivered and paid for in accordance with the
Declaration and as described in the Prospectus, will be validly issued and
fully paid undivided beneficial interests in the assets of the Trust.
(viii) Under the Delaware Act and the Declaration, the issuance of
the Trust Securities is not subject to preemptive or other similar rights.
29
(ix) The issuance and sale by the Trust of the Trust Securities, the
purchase by the Trust of the Subordinated Debentures, the execution,
delivery and performance by the Trust of the Underwriting Agreement, the
consummation by the Trust of the transactions contemplated thereby and the
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate of Trust or the Declaration or (ii) any
applicable Delaware law or administrative regulation.
30
EXHIBIT C
Form of Opinion of Counsel for Property Trustee
Guarantee Trustee and Debt Trustee
(To Be Delivered pursuant to Section 5(e))
(i) State Street Bank and Trust Company is a trust company, duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, with all necessary power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of the Declaration, the Guarantee Agreements and the Indenture.
(ii) The execution, delivery and performance by the Property Trustee
of the Declaration, the execution, delivery and performance by the Guarantee
Trustee of the Guarantee Agreements and the execution, delivery and
performance by the Debt Trustee of the Indenture have been duly authorized by
all necessary corporate action on the part of the Property Trustee, the
Guarantee Trustee and the Debt Trustee, respectively. The Declaration, the
Guarantee Agreements and the Indenture have been duly executed and delivered
by the Property Trustee, the Guarantee Trustee and the Debt Trustee,
respectively, and the Declaration, the Guarantee Agreements and the Indenture
constitute legal, valid and binding obligations of the Property Trustee, the
Guarantee Trustee, and the Indenture Trustee, respectively, enforceable
against the Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively, in accordance with its terms, subject in each case to (i)
applicable bankruptcy, insolvency, reorganization, liquidation, moratorium,
receivership, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) considerations of public policy or the effect of applicable
law relating to fiduciary duties.
(iii) The execution, delivery and performance of the Declaration, the
Guarantee Agreement and the Indenture by the Property Trustee, the Guarantee
Trustee and the Debt Trustee, respectively, do not conflict with or constitute
a breach of the charter or bylaws of the Property Trustee, the Guarantee
Trustee or the Debt Trustee, respectively, or, to the best of such counsel's
knowledge, without independent investigation, the terms of any indenture or
other agreement or instrument to which the Property Trustee, the Guarantee
Trustee or the Debt Trustee, respectively, is a party or is bound or
any judgment, order or decree to be applicable to the Property Trustee, the
Guarantee Trustee or the Debt Trustee, respectively, of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Property Trustee, the Guarantee Trustee or the Debt
Trustee, respectively.
(iv) No consent, approval or authorization of, or registration with
or notice to, any federal or Massachusetts banking authority is required for
the execution, delivery or performance by the Property Trustee, the Guarantee
Trustee or the Debt Trustee of the Declaration, the Guarantee Agreements or
the Indenture, respectively.
31
EXHIBIT D
Form of Opinion of Counsel for Delaware Trustee
(To Be Delivered pursuant to Section 5(e))
(i) First Union Trust Company, National Association, is a national
banking association, with trust powers, with its principal place of business
in the State of Delaware, and is duly incorporated, validly existing and in
good standing under the laws of the United States with all necessary power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of the Declaration.
(ii) The execution, delivery and performance by the Delaware Trustee
of the Declaration have been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. The Declaration has been duly executed
and delivered by the Delaware Trustee and constitutes the legal, valid and
binding obligation of the Delaware Trustee, enforceable against the Delaware
Trustee in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, liquidation, moratorium, receivership, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(iii) The execution, delivery and performance of the Declaration do not
conflict with or constitute a breach of the charter or bylaws of the Delaware
Trustee or, to the best of such counsel's knowledge, without independent
investigation, the terms of any indenture or other agreement or instrument to
which the Delaware Trustee is a party or is bound or, to the best of such
counsel's knowledge, without independent investigation, any judgment, order or
decree applicable to the Delaware Trustee of any court, regulatory body,
administrative agency, governmental body or arbitrator of the State of
Delaware having jurisdiction over the banking and trust powers of the
Delaware Trustee.
(iv) No consent, approval or authorization of, or registration with
or notice to, any federal or Delaware banking authority is required for the
execution, delivery or performance of the Declaration by the Delaware Trustee,
other than the filing of the Certificate of Trust with the Delaware Secretary
of State.
32
