EXHIBIT 1.1
Pentair, Inc.
Common Stock
Par Value $.16 2/3 per Share
Underwriting Agreement
September 29,1999
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the Several
Underwriters named in Schedule I to
the Pricing Agreement attached hereto
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time Pentair, Inc, a Minnesota
corporation (the "Company"), proposes to enter into one
or more Pricing Agreements (each a "Pricing Agreement")
in the form of Annex III hereto, with such additions
and deletions as the parties thereto may determine,
and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified
therein) certain shares of the Company's Common Stock,
par value $.16b per share (the "Shares") specified in
Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Shares"). If
specified in such Pricing Agreement, the Company may
grant to the Underwriters the right to purchase at
their election an additional number of shares,
specified in such Pricing Agreement as provided in
Section 3 hereof (the "Optional Shares"). The Firm
Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Designated
Shares".
The terms and rights of any particular
issuance of Designated Shares shall be as specified in
the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be
made from time to time to the Underwriters of such
Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in
the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting
as sole representative of the Underwriters and to
Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement
shall not be construed as an obligation of the Company
to sell any of the Shares or as an obligation of any of
the Underwriters to purchase any of the Shares. The
obligation of the Company to issue and sell any of the
Shares and the obligation of any of the Underwriters to
purchase any of the Shares shall be evidenced by the
Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall
specify the aggregate number of the Firm Shares, the
maximum number of Optional Shares, if any, the initial
public offering price of such Firm and Optional Shares
or the manner of determining such price, the purchase
price to the Underwriters of such Designated Shares,
the names of the Underwriters of such Designated
Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to
be purchased by each Underwriter and the commission, if
any, payable to the Underwriters with respect thereto
and shall set forth the date, time and manner of
delivery of such Firm and Optional Shares, if any, and
payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the
registration statement and prospectus with respect
thereto) the terms of such Designated Shares. A
Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to
produce a written record of communications transmitted.
The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3
(File No. 333-80159) (the "Initial Registration
Statement") in respect of the Shares and certain
other securities has been filed with the
Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including
all documents incorporated by reference in the
prospectus included therein, to the
Representatives for each of the other Underwriters
have been declared effective by the Commission in
such form; other than a registration statement, if
any, increasing the size of the offering (a "Rule
462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon
filing, no other document with respect to the
Initial Registration Statement or document
incorporated by reference therein has heretofore
been filed, or transmitted for filing, with the
Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form
heretofore delivered to the Representatives); and
no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no
proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary
prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective
amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto
and the documents incorporated by reference in the
prospectus contained in the Initial Registration
Statement at the time such part of the Initial
Registration Statement became effective, but
excluding Form T-1, each as amended at the time
such part of the Initial Registration Statement
became effective, or such part of the Rule 462(b)
Registration Statement, if any, became or
hereafter becomes effective, are hereinafter
collectively called the "Registration Statement";
the prospectus relating to the Shares, in the form
in which it has most recently been filed, or
transmitted for filing, with the Commission on or
prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to the applicable form under the Act, as
of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial
Registration Statement shall be deemed to refer to
and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration
Statement that is incorporated by reference in the
Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable
Designated Shares in the form in which it is filed
with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference
in the Prospectus, when they became effective or
were filed with the Commission, as the case may
be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder, and none of such documents
contained an untrue statement of a material fact
or omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading; and any further documents
so filed and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto, when such documents become effective or
are filed with the Commission, as the case may be,
will conform in all material respects to the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder and will not contain an
untrue statement of a material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading; provided, however, that
this representation and warranty shall not apply
to any statements or omissions made in reliance
upon and in conformity with information furnished
in writing to the Company by an Underwriter of
Designated Shares through the Representatives
expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or
supplements to the Registration Statement or the
Prospectus will conform, in all material respects
to the requirements of the Act and the rules and
regulations of the Commission thereunder and do
not and will not, as of the applicable effective
date as to the Registration Statement and any
amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading; provided,
however, that this representation and warranty
shall not apply to any statements or omissions
made in reliance upon and in conformity with
information furnished in writing to the Company by
an Underwriter of Designated Shares through the
Representatives expressly for use in the
Prospectus as amended or supplemented relating to
such Shares or to any statement in or omission
from the Form T-1;
(d) Neither the Company nor any of its
subsidiaries has sustained since the date of the
latest audited financial statements included or
incorporated by reference in the Prospectus any
material loss or interference with its business
from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any
labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the
respective dates as of which information is given
in the Registration Statement and the Prospectus,
there has not been any change in the capital stock
(other than pursuant to the Company's employee and
director stock option plans) or increase in short-
term or long-term debt of the Company or any of
its subsidiaries in excess of 5% of total debt of
the Company and its subsidiaries, taken as a
whole, computed in accordance with generally
accepted accounting principles, or any material
adverse change, or any development involving a
prospective material adverse change, in or
affecting the general affairs, management,
financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, as amended or
supplemented;
(e) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus and has been duly
qualified as a foreign corporation for the
transaction of business and is in good standing
under the laws of each other jurisdiction in which
it owns or leases properties or conducts any
business so as to require such qualification or is
subject to no material liability or disability by
reason of the failure to be so qualified in any
such jurisdiction; and each material subsidiary of
the Company (as set forth on Annex V attached
hereto (each a "Material Subsidiary" and, together
the "Material Subsidiaries") has been duly
incorporated or organized, as the case may be, and
is validly existing as a corporation or
partnership, as the case may be, in good standing
under the laws of its jurisdiction of
incorporation or organization;
(f) The Company and its Material
Subsidiaries have good and indefeasible title
to all real property and good and marketable title
to all personal property owned by them, in each
case free and clear of all liens, encumbrances and
defects and any real property and buildings held
under lease by the Company and its subsidiaries
are held by them under valid, subsisting and
enforceable leases except for liens, encumbrances
and defects that, individually or in the
aggregate, will not have a material adverse effect
on the business, consolidated financial position,
stockholders equity or results of operation of the
Company and its subsidiaries taken as a whole,
subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles;
(g) The Company has an authorized
capitalization as set forth in the most recent
Prospectus, and all of the issued shares of
capital stock of the Company have been duly and
validly authorized and issued and are fully paid
and non-assessable and all of the issued shares of
capital stock of each Material Subsidiary of the
Company have been duly and validly authorized and
issued, are fully paid and non-assessable, are
owned directly or indirectly by the Company and
are owned free and clear of all liens,
encumbrances, equities or claims;
(h) The Shares have been duly and validly
authorized, and, when the Firm Shares are issued
and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated
Shares and, in the case of any Optional Shares,
pursuant to Overallotment Options (as defined in
Section 3 hereof) with respect to such Shares,
such Designated Shares will be duly and validly
issued and fully paid and non-assessable; the
Shares conform to the description thereof
contained in the Registration Statement and the
Designated Shares will conform to the description
thereof contained in the Prospectus as amended or
supplemented with respect to such Designated
Shares;
(i) None of the transactions contemplated by
this Agreement (including, without limitation, the
use of the proceeds from the sale of the Shares)
will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation,
Regulations G, T, U, and X of the Board of
Governors of the Federal Reserve System;
(j) The issue and sale of the Shares and the
compliance by the Company with all of the
provisions of this Agreement, any Pricing
Agreement and each Overallotment Option, if any,
and the consummation of the transactions
contemplated herein and therein will not conflict
with or result in a breach or violation of any of
the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of
its subsidiaries is subject, excluding conflicts,
breaches, violations and defaults that,
individually or in the aggregate, will not have a
material adverse effect on the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries taken as a whole, 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 Material 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; and, no
consent, approval, authorization, order,
registration or qualification of or with any such
court or governmental agency or body is required
for the issue and sale of the Shares or the
consummation by the Company of the transactions
contemplated by this Agreement or any Pricing
Agreement or any Overallotment Option, except such
as have been, or will have been prior to each Time
of Delivery (as defined in Section 4 hereof),
obtained under the Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the
Underwriters;
(k) Other than as 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 of which any
property of the Company or any of its subsidiaries
is the subject, which, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a material
adverse effect on the current or future
consolidated financial position, shareholders'
equity or results of operations of the Company and
its subsidiaries and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others;
(l) Neither the Company nor any of its
Material Subsidiaries is (i) in violation of its
Articles of Incorporation or By-laws or (ii) in
default in the performance or observance of any
material obligation, agreement, covenant or
condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or
by which it or any of its properties may be bound,
except, with respect to clause (ii) above, for
defaults that, individually or in the aggregate,
will not have a material adverse effect on the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a
whole;
(m) The statements set forth in the
Prospectus under the caption "Description of
Common Stock, Preferred Stock and Rights Plan" and
the description of the Company's common stock
incorporated by reference in the Prospectus,
insofar as they purport to constitute a summary of
the terms of the Shares, and the statements set
forth in the Prospectus under the caption "Plan of
Distribution," insofar as they purport to describe
the provisions of the laws and documents referred
to therein, are accurate and fair;
(n) The Company is not and, after giving
effect to the offering and sale of the Shares,
will not be an "investment company," or an entity
"controlled" by an "investment company," as such
terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(o) Neither the Company nor any of its
affiliates does business with the government of
Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075,
Florida Statutes;
(p) Deloitte & Touche LLP and
Pricewaterhouse Coopers LLP, who have certified
certain financial statements of the Company and
its subsidiaries, are independent public
accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(q) The pro forma balance sheets and pro
forma statements of operations and the related
notes thereto included in the Prospectus
(collectively, the "pro forma financial
statements") have been prepared in accordance with
the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission; the
assumptions used and described in the pro forma
financial statements provide a reasonable basis
for presenting the significant effects
attributable to the transactions described
therein; the pro forma adjustments contained in
the pro forma financial statements give
appropriate effect to such assumptions and include
all adjustments necessary to present fairly the
effects of such transactions; and the pro forma
columns contained in the pro forma financial
statements reflect the proper application of such
adjustments to the historical financial amounts
contained in the pro forma financial statements;
(r) Except as disclosed in the Prospectus,
the Company has not been advised and has no reason
to believe that either the Company or any of its
subsidiaries is not conducting its business in
compliance with all applicable statutes, rules,
regulations and orders administered or issued by
any governmental or regulatory authority in the
jurisdictions in which it is conducting business,
except where the failure to be in compliance would
not materially adversely affect the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries, taken as a whole; and
(s) The Company has reviewed its operations
and those of its Material Subsidiaries and has
requested from third parties with which the
Company or any of its Material Subsidiaries has a
material relationship a certification of
compliance, in order to evaluate the extent to
which the business or operations of the Company
and its Material Subsidiaries will be affected by
the Year 2000 Problem. As a result of such review,
the Company has no reason to believe and does not
believe that the Year 2000 Problem will have a
material adverse effect on the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries, taken as a whole. The "Year
2000 Problem" as used herein means any significant
risk that computer hardware or software used in
the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission
or other utilization of data or in the operation
of mechanical or electrical systems of any kind
will not, in the case of dates or time periods
occurring after December 31, 1999, function at
least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Shares and authorization
by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement
applicable to any Designated Shares that the Company
thereby grants to the Underwriters the right (an
"Overallotment Option") to purchase at their election
up to the number of Optional Shares set forth in such
Pricing Agreement, on the terms set forth in the
paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any
such election to purchase Optional Shares may be
exercised by written notice from the Representatives to
the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number
of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as
determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless the Representatives and
the Company otherwise agree in writing, earlier than or
later than the respective number of business days after
the date of such notice set forth in such Pricing
Agreement.
The number of Optional Shares to be added to the
number of Firm Shares to be purchased by each
Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall
be, in each case, the number of Optional Shares which
the Company has been advised by the Representatives
have been attributed to such Underwriter; provided
that, if the Company has not been so advised, the
number of Optional Shares to be so added shall be, in
each case, that proportion of Optional Shares which the
number of Firm Shares to be purchased by such
Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Shares (rounded as the
Representatives may determine to the nearest 100
shares). The total number of Designated Shares to be
purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm
Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares
which the Underwriters elect to purchase.
4. Certificates for the Firm Shares and the
Optional Shares to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in
the form specified in such Pricing Agreement and in
such authorized denominations and registered in such
names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall
be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of
the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the
Company to the Representatives at least forty-eight
hours in advance as specified in such Pricing
Agreement, (i) with respect to the Firm Shares, all in
the manner and at the place and time and date specified
in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company
may agree upon in writing, such time and date being
herein called the "First Time of Delivery" and (ii)
with respect to the Optional Shares, if any, in the
manner and at the time and date specified by the
Representatives in the written notice given by the
Representatives of the Underwriters' election to
purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may
agree upon in writing, such time and date, if not the
First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is
herein called a "Time of Delivery".
5. The Company agrees with each of the
Underwriters of any Designated Shares:
(a) To prepare the Prospectus as amended and
supplemented in relation to the applicable
Designated Shares in a form approved by the
Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the
second business day following the execution and
delivery of the Pricing Agreement relating to the
applicable Designated Shares or, if applicable,
such earlier time as may be required by Rule
424(b); to make no further amendment or any
supplement to the Registration Statement or
Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such
Shares and prior to any Time of Delivery for such
Shares which shall be disapproved by the
Representatives for such Shares promptly after
reasonable notice thereof; to advise the
Representatives promptly of any such amendment or
supplement after any Time of Delivery for such
Shares and furnish the Representatives with copies
thereof; to file promptly all reports and any
definitive proxy or information statements
required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection
with the offering or sale of such Shares, and
during such same period to advise the
Representatives, promptly after it receives notice
thereof, of the time when any amendment to the
Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of
any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus
or Prospectus relating to the Shares, of the
suspension of the qualification of such Shares for
offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for
any such purpose, or of any request by the
Commission for the amending or supplementing of
the Registration Statement or Prospectus or for
additional information; and, in the event of the
issuance of any such stop order or of any such
order preventing or suspending the use of any
Registration Statement or the Prospectus relating
to the Shares or suspending any such
qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such
action as the Representatives may reasonably
request to qualify such Designated Shares for
offering and sale under the securities laws of
such jurisdictions as the Representatives may
request and to comply with such laws so as to
permit the continuance of sales and dealings
therein in such jurisdictions for as long as may
be necessary to complete the distribution of such
Designated Shares, provided that in connection
therewith the Company shall not be required to
qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 A.M., New York City time,
on the New York Business Day next succeeding the
date of any Pricing Agreement and from time to
time to furnish the Underwriters with copies of
the Prospectus as amended or supplemented, in New
York City in such quantities as the
Representatives may reasonably request, and, if
the delivery of a prospectus is required at any
time in connection with the offering or sale of
the Shares and if at such time any event shall
have occurred as a result of which the Prospectus
as then amended or supplemented would include an
untrue statement of a material fact or omit to
state any material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during
such same period to amend or supplement the
Prospectus or to file under the Exchange Act any
document incorporated by reference in the
Prospectus in order to comply with the Act or the
Exchange Act, to notify the Representatives and
upon their request to file such document and to
prepare and furnish without charge to each
Underwriter and to any dealer in securities as
many copies as the Representatives may from time
to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect
such compliance;
(d) To make generally available to its
security holders as soon as practicable, but in
any event not later than eighteen months after the
effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries
(which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of
the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the
date of the Pricing Agreement for such Designated
Shares and continuing to and including the date 90
days after the date of the Pricing Agreement, not
to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any
securities of the Company that are substantially
similar to the Designated Shares, including but
not limited to any securities that are convertible
into or exchangeable for, or that represent the
right to receive, Shares or any such substantially
similar securities (other than pursuant to
employee stock option plans existing on, or upon
the conversion or exchange of convertible or
exchangeable securities outstanding as of, the
date of the Pricing Agreement for such Designated
Shares) without the prior written consent of the
Representatives;
(f) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of
filing either pay the Commission the filing fee
for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act;
(g) During a period of three years from the
date hereof, to furnish (unless otherwise publicly
available on Xxxxx) to the Representatives copies
of all reports or other communications (financial
or other) furnished to shareholders of the
Company, and to deliver to the Representatives (i)
as soon as practicable after they are available,
copies of any reports and financial statements
furnished to or filed with the Commission or any
securities exchange (other than filings made on a
confidential basis) on which the Shares or any
class of securities of the Company is listed; and
(ii) such additional information concerning the
business and financial condition of the Company as
the Representatives may from time to time
reasonably request (such financial statements to
be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are
consolidated in reports furnished to its
shareholders generally or to the Commission); and
(h) To use the net proceeds received by it
from the sale of the Shares pursuant to this
Agreement and any Pricing Agreement in the manner
specified in the Prospectus under the caption "Use
of Proceeds."
6. The Company covenants and agrees with the
several Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants
in connection with the registration of the Shares under
the Act and all other expenses in connection with the
preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Blue Sky
Memorandum, closing documents (including compilations
thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification
of the Shares for offering and sale under state
securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and
in connection with the Blue Sky survey(s); (iv) the
cost of preparing certificates for the Shares; (v) the
cost and charges of any transfer agent or registrar or
dividend disbursing agent; and (vi) all other costs and
expenses incident to the performance of its obligations
hereunder and under any Overallotment Options which are
not otherwise specifically provided for in this
Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer
taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters of any
Designated Shares under the Pricing Agreement relating
to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition
that all representations and warranties and other
statements of the Company in or incorporated by
reference in the Pricing Agreement relating to such
Designated Shares are, at and as of each Time of
Delivery for such Designated Shares, true and correct,
the condition that the Company shall have performed all
of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or
supplemented in relation to such Designated Shares
shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and
regulations under the Act and in accordance with
Section 5(a) hereof; if the Company has elected to
rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any
part thereof shall have been issued and no
proceeding for that purpose shall have been
initiated or threatened by the Commission; and all
requests for additional information on the part of
the Commission shall have been complied with to
the Representatives' reasonable satisfaction;
(b) Xxxxxx & Whitney LLP, counsel for the
Underwriters, shall have furnished to the
Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Shares,
with respect to the Designated Shares, this
Agreement, the Pricing Agreement, the Registration
Statement and the Prospectus as well as such other
related matters as the Representatives may
reasonably request, and such counsel shall have
received such papers and information as they may
reasonably request to enable them to pass upon
such matters;
(c) Louis. X. Xxxxxxxxx, Senior Vice
President and General Counsel of the Company,
shall have furnished to the Representatives his
written opinion or opinions, dated the Time of
Delivery for such Designated Securities, as to the
matters set forth in Annex I hereto and in form
and substance satisfactory to the Representatives.
(d) Xxxxxx & Efron, P.A., counsel for the
Company, shall have furnished to the
Representatives their written opinions, dated the
Time of Delivery for such Designated Shares, as to
the matters set forth in Annex II hereto and in
form and substance satisfactory to the
Representatives.
(e) On the date of the Pricing Agreement for
such Designated Shares and at each Time of
Delivery for such Designated Securities, the
independent accountants of the Company who have
certified the financial statements of the Company
and its subsidiaries included or incorporated by
reference in the Registration Statement shall have
furnished to Xxxxxxx, Xxxxx & Co., on behalf of
the underwriters, a letter, dated the date of this
Agreement, and a letter dated such Time of
Delivery, respectively, to the effect set forth in
Annex IV, and with respect to such letter dated
such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in
form and substance satisfactory to the
Representatives;
(f) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date
of the latest audited financial statements
included or incorporated by reference in the
Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated
Shares any loss or interference with its business
from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any
labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the
Designated Shares, and (ii) since the respective
dates as of which information is given in the
Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated
Shares there shall not have been any change in the
capital stock (other than pursuant to the
Company's employee and director stock option
plans) or increase in short-term or long-term debt
of the Company or any of its subsidiaries in
excess of 5% of total debt of the Company and its
subsidiaries, taken as a whole, computed in
accordance with generally accepted accounting
principles, or any change, or any development
involving a prospective change, in or affecting
the general affairs, management, financial
position, shareholders' equity or results of
operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the
Designated Shares, the effect of which, in any
such case described in clause (i) or (ii), is in
the judgment of the Representatives so material
and adverse as to make it impracticable or
inadvisable to proceed with the public offering or
the delivery of the Designated Shares on the terms
and in the manner contemplated in the Prospectus
as amended relating to the Designated Shares;
(g) On or after the date of the Pricing
Agreement relating to the Designated Shares (i) no
downgrading shall have occurred in the rating
accorded the Company's debt securities or
preferred stock by any "nationally recognized
statistical rating organization", as that term is
defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it
has under surveillance or review, with possible
negative implications, its rating of any of the
Company's debt securities or preferred stock;
(h) On or after the date of the Pricing
Agreement relating to the Designated Shares there
shall not have occurred any of the following: (i)
a suspension or material limitation in trading in
securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either
Federal or New York State authorities; (iv) the
outbreak or escalation of hostilities involving
the United States or the declaration by the United
States of a national emergency or war, if the
effect of any such event specified in this clause
(iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with
the public offering or the delivery of the Firm
Shares or Optional Shares or both on the terms and
in the manner contemplated in the Prospectus as
first amended or supplemented relating to the
Designated Shares; or (v) the occurrence of any
material adverse change in the existing financial,
political or economic condition in the United
States or elsewhere which, in the judgment of the
Representatives would materially and adversely
affect the financial markets for the Shares;
(i) The Shares at each Time of Delivery
shall have been duly listed on the New York Stock
Exchange;
(j) The Company shall have complied with the
provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the business day
next succeeding the date of the Pricing Agreement
relating to such Designated Shares; and
(k) The Company shall have furnished or
caused to be furnished to the Representatives at
the Time of Delivery for the Designated Shares
certificates of officers of the Company
satisfactory to the Representatives as to the
accuracy of the representations and warranties of
the Company herein at and as of such Time of
Delivery, as to the performance by the Company of
all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold
harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several,
to which such Underwriter may become subject,
under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus
relating to the Shares, or any amendment or
supplement thereto, or arise out of or are based
upon the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, and will reimburse each
Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in
connection with investigating or defending any
such action or claim as such expenses are
incurred; provided, however, that the Company
shall not be liable in any such case to the extent
that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written
information furnished to the Company by any
Underwriter of Designated Shares through the
Representatives expressly for use in the
Prospectus as amended or supplemented relating to
such Shares.
(b) Each Underwriter will indemnify and hold
harmless the Company against any losses, claims,
damages or liabilities to which the Company may
become subject, under the Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or
alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, in each case to the extent, but only
to the extent, that such untrue statement or
alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written
information furnished to the Company by such
Underwriter through the Representatives expressly
for use therein; and will reimburse the Company
for any legal or other expenses reasonably
incurred by the Company in connection with
investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice
of the commencement of any action, such
indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying
party under such subsection, notify the
indemnifying party in writing of the commencement
thereof; but the omission so to notify the
indemnifying party shall not relieve it from any
liability which it may have to any indemnified
party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the
indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to
participate therein and, to the extent that it
shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party
of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such
indemnified party under such subsection for any
legal expenses of other counsel or any other
expenses, in each case subsequently incurred by
such indemnified party, in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall,
without the written consent of the indemnified
party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect
to, any pending or threatened action or claim in
respect of which indemnification or contribution
may be sought hereunder (whether or not the
indemnified party is an actual or potential party
to such action or claim) unless such settlement,
compromise or judgment (i) includes an
unconditional release of the indemnified party
from all liability arising out of such action or
claim and (ii) does not include any statement as
to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified
party. No indemnifying party shall be liable
under Sections (a) or (b) above for any settlement
of any claim or action effected without its
consent, which consent will not be unreasonably
withheld.
(d) If the indemnification provided for in
this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a
result of such losses, claims, damages or
liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the
relative benefits received by the Company on the
one hand and the Underwriters of the Designated
Shares on the other from the offering of the
Designated Shares to which such loss, claim,
damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by
the immediately preceding sentence is not
permitted by applicable law or if the indemnified
party failed to give the notice required under
subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by
such indemnified party in such proportion as is
appropriate to reflect not only such relative
benefits but also the relative fault of the
Company on the one hand and the Underwriters of
the Designated Shares on the other in connection
with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other
relevant equitable considerations. The relative
benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed
to be in the same proportion as the total net
proceeds from such offering (before deducting
expenses) received by the Company bear to the
total underwriting discounts and commissions
received by such Underwriters. The relative fault
shall be determined by reference to, among other
things, whether the untrue or alleged untrue
statement of a material fact or the omission or
alleged omission to state a material fact relates
to information supplied by the Company on the one
hand or such Underwriters on the other and the
parties' relative intent, knowledge, access to
information and opportunity to correct or prevent
such statement or omission. The Company and the
Underwriters agree that it would not be just and
equitable if contributions pursuant to this
subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other
method of allocation which does not take account
of the equitable considerations referred to above
in this subsection (d). The amount paid or
payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this
subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by
such indemnified party in connection with
investigating or defending any such action or
claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount
by which the total price at which the applicable
Designated Shares underwritten by it and
distributed to the public were offered to the
public exceeds the amount of any damages which
such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. The obligations of the
Underwriters of Designated Shares in this
subsection (d) to contribute are several in
proportion to their respective underwriting
obligations with respect to such Shares and not
joint.
(e) The obligations of the Company under
this Section 8 shall be in addition to any
liability which the Company may otherwise have and
shall extend, upon the same terms and conditions,
to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section
8 shall be in addition to any liability which the
respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions,
to each officer and director of the Company and to
each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Firm Shares or Optional
Shares which it has agreed to purchase under the
Pricing Agreement relating to such Shares, the
Representatives may in their discretion arrange
for themselves or another party or other parties
to purchase such Shares on the terms contained
herein. If within thirty-six hours after such
default by any Underwriter the Representatives do
not arrange for the purchase of such Firm Shares
or Optional Shares, as the case may be, then the
Company shall be entitled to a further period of
thirty-six hours within which to procure another
party or other parties satisfactory to the
Representatives to purchase such Shares on such
terms. In the event that, within the respective
prescribed period, the Representatives notify the
Company that they have so arranged for the
purchase of such Shares, or the Company notifies
the Representatives that it has so arranged for
the purchase of such Shares, the Representatives
or the Company shall have the right to postpone a
Time of Delivery for such Shares for a period of
not more than seven days, in order to effect
whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents
or arrangements, and the Company agrees to file
promptly any amendments or supplements to the
Registration Statement or the Prospectus which in
the opinion of the Representatives may thereby be
made necessary. The term "underwriter" as used in
this Agreement shall include any person
substituted under this Section with like effect as
if such person had originally been a party to the
Pricing Agreement with respect to such Designated
Shares.
(b) If, after giving effect to any
arrangements for the purchase of the Firm Shares
or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in
subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of the Firm
Shares or Optional Shares, as the case may be, to
be purchased at the respective Time of Delivery,
then the Company shall have the right to require
each non-defaulting Underwriter to purchase the
number of Firm Shares or Optional Shares, as the
case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to
such Designated Shares and, in addition, to
require each non-defaulting Underwriter to
purchase its pro rata share (based on the number
of Firm Shares or Optional Shares, as the case may
be, which such Underwriter agreed to purchase
under such Pricing Agreement) of the Firm Shares
or Optional Shares, as the case may be, of such
defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any
arrangements for the purchase of the Firm Shares
or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in
subsection (a) above, the aggregate number of Firm
Shares or Optional Shares, as the case may be,
which remains unpurchased exceeds one-eleventh of
the aggregate number of the Firm Shares or
Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, as
referred to in subsection (b) above, or if the
Company shall not exercise the right described in
subsection (b) above to require non-defaulting
Underwriters to purchase Firm Shares or Optional
Shares, as the case may be, of a defaulting
Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional
Shares, as the case may be, shall thereupon
terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the
Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any
investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for
the Shares.
11. If any Pricing Agreement or Overallotment
Option shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Firm
Shares or Optional Shares with respect to which such
Pricing Agreement shall have been terminated except as
provided in Sections 6 and 8 hereof; but, if for any
other reason, Designated Shares are not delivered by or
on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase,
sale and delivery of such Designated Shares, but the
Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the
Representatives of the Underwriters of Designated
Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the
Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement;
and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of
the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address
will be supplied to the Company by the Representatives
upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls
the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Shares
from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, the term "business day"
shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement
shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement and each Pricing Agreement may
be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such
respective counterparts shall together constitute one
and the same instrument.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof.
Very truly yours,
Pentair, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
By:
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
ANNEX I
Xxxxx X. Xxxxxxxxx, Esq., General Counsel of
the Company, shall have furnished to the
Representatives his opinion, dated the Time of Delivery
for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued
shares of capital stock of the Company (including
the Designated Securities) have been duly and
validly authorized and issued and are fully paid
and non-assessable;
(iii) To the best of such counsel's
knowledge and other than as 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 of which any
property of the Company or any of its subsidiaries
is the subject which will, in such counsel's
reasonable belief, individually or in the
aggregate, have a material adverse effect on the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole;
and, to the best of such counsel's knowledge, no
such proceedings are threatened by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities have
been duly authorized, executed and delivered by
the Company;
(v) The issue and sale of the Designated
Securities and the compliance by the Company with
all of the provisions of the Designated
Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated
Securities and the consummation of the
transactions herein and therein contemplated will
not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to
which the Company or any of its Material
Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company
or any of its Material Subsidiaries is subject;
(ii) result in any violation of the provisions of
the Articles of Incorporation or By-laws of the
Company or any of its Material Subsidiaries; or
(iii) result in a violation of any statute or any
order, rule or regulation known to such counsel
and applicable to the Company or any of its
Material Subsidiaries or any of their respective
properties of any court or governmental agency or
body having jurisdiction over the Company or any
of its Material Subsidiaries or any of their
respective properties (except that such counsel
need express no opinion with respect to state
securities laws or Blue Sky laws with respect to
this paragraph) (and that such opinion shall not
extend to compliance with the anti-fraud
provisions of federal or state securities laws);
except in the case of clauses (i) and (iii) of
this paragraph, for such conflicts, breaches,
violations and defaults as are not reasonably
likely, individually or in the aggregate, to have
a material adverse effect on the business,
consolidated financial position, stockholders'
equity, results of operations, business or
prospects of the Company and its subsidiaries,
taken as a whole;
(vi) The documents incorporated by reference
in the Prospectus as amended or supplemented
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion), when they became effective or
were filed with the Commission, as the case may
be, complied as to form in all material respects
with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has
no reason to believe that any of such documents,
when they became effective or were so filed, as
the case may be, contained, in the case of a
registration statement which became effective
under the Act, an untrue statement of a material
fact or omitted to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading, or, in the case
of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading;
(vii) The statements set forth in the
Prospectus under the caption "Description of
Common Stock, Preferred Stock and Rights Plan,"
insofar as they purport to constitute a summary of
the terms of the Designated Securities, and under
the captions "Plan of Distribution" and
"Underwriting," insofar as they purport to
describe the provisions of the laws and documents
referred to therein, are accurate, complete and
fair;
(viii) Neither the Company nor any of its
subsidiaries is in violation of its By-laws or
Articles of Incorporation or in default in the
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to
which it is a party or by which it or any of its
properties may be bound; and
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the rules and
regulations thereunder; although they do not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement or the
Prospectus, except for those referred to in the
opinion in subsection (vii) hereof, such counsel
has no reason to believe that, as of its effective
date, the Registration Statement or any further
amendment thereto made by the Company prior to the
Time of Delivery (other than the financial
statements, including the notes thereto, and
related schedules therein, as to which such
counsel need express no opinion) contained an
untrue statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading or that, as of its date,
the Prospectus or any further amendment or
supplement thereto made by the Company prior to
the Time of Delivery (other than the financial
statements, including the notes thereto, and
related schedules therein, as to which such
counsel need express no opinion) contained an
untrue statement of a material fact or omitted to
state a material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the
Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; and they do not know of any amendment
to the Registration Statement required to be filed
or any contracts or other documents of a character
required to be filed as an exhibit to the
Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are
not filed or incorporated by reference or
described as required.
ANNEX II
Xxxxxx & Efron, P.A., counsel for the
Company, shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued
shares of capital stock of the Company (including
the Designated Securities) have been duly and
validly authorized and issued and are fully paid
and non-assessable;
(iii) This Agreement and
the Pricing Agreement with respect to the
Designated Securities have been duly authorized,
executed and delivered by the Company;
(iv) No consent, approval, authorization,
order, registration or qualification of or with
any court or governmental agency or body is
required to be made by the Company for the issue
and sale of the Designated Securities or the
consummation by the Company of the transactions
contemplated by this Agreement, such Pricing
Agreement or the Indenture, except such as have
been obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, orders, registrations or
qualifications as may be required under state
securities or Blue Sky laws (as to the
applicability of which no opinion need be
expressed) in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(v) The statements set forth in the
Prospectus under the caption "Description of
Common Stock, Preferred Stock and Rights Plan" and
the description of the Company's Common Stock
incorporated by reference in the Prospectus,
insofar as they purport to constitute a summary of
the terms of the Designated Securities, and under
the captions "Plan of Distribution" and
"Underwriting," insofar as they purport to
summarize the provisions of the laws and documents
referred to therein, are accurate summaries and
fairly present the information called for with
respect to such matters;
(vi) The Company is not an "investment
company," or an entity "controlled" by an
"investment company," as such term is defined in
the Investment Company Act;
(vii) The issue and sale
of the Designated Securities and the compliance by
the Company with all of the provisions of the
Designated Securities, the Indenture, this
Agreement and the Pricing Agreement with respect
to the Designated Securities and the consummation
of the transactions herein and therein
contemplated will not (i) conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such
counsel to which the Company or any of its
Material Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries is
bound or to which any of the property or assets of
the Company or any of its Material Subsidiaries is
subject; (ii) result in any violation of the
provisions of the Articles of Incorporation or By-
laws of the Company or any of its Material
Subsidiaries incorporated within the United
States; or (iii) result in a violation of any
statute or any order, rule or regulation known to
such counsel and applicable to the Company or any
of its Material Subsidiaries or any of their
respective properties of any court or governmental
agency or body having jurisdiction over the
Company or any of its Material Subsidiaries or any
of their respective properties (except that such
counsel need express no opinion with respect to
state securities laws or Blue Sky laws with
respect to this paragraph) (and that such opinion
shall not extend to compliance with the anti-fraud
provisions of federal or state securities laws);
except in the case of clauses (i) and (iii) of
this paragraph, for such conflicts, breaches,
violations and defaults as are not reasonably
likely, individually or in the aggregate, to have
a material adverse effect on the business,
consolidated financial position, stockholders'
equity, results of operations, business or
prospects of the Company and its subsidiaries,
taken as a whole. In rendering the opinion set
forth in clause (i) of this paragraph, we have,
with your approval, relied without investigation,
on a certificate of the Treasurer of the Company,
which includes calculations of the Company, as to
the Company's compliance with the financial ratios
and tests, which certificate is attached hereto;
(viii) The documents incorporated by
reference in the Prospectus as amended or
supplemented (other than the financial statements
and related schedules therein, as to which such
counsel need express no opinion), when they became
effective or were filed with the Commission, as
the case may be, complied as to form in all
material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and
nothing has come to such counsel's attention that
causes it to believe that any of such documents,
when they became effective or were so filed, as
the case may be, contained, in the case of a
registration statement which became effective
under the Act, an untrue statement of a material
fact or omitted to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading, or, in the case
of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the rules and
regulations thereunder; although they do not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement or the
Prospectus and nothing has come to such counsel's
attention that causes it to believe that as of its
effective date, the Registration Statement or any
further amendment thereto made by the Company
prior to the Time of Delivery (other than the
financial statements, including the notes thereto,
and related schedules therein, as to which such
counsel need express no opinion) contained an
untrue statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading or that, as of its date,
the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements, including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omitted to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the
Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; and they do not know of any amendment
to the Registration Statement required to be filed
or any contracts or other documents of a character
required to be filed as an exhibit to the
Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are
not filed or incorporated by reference or
described as required.
ANNEX III
Pricing Agreement
Xxxxxxx, Sachs & Co.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the Several
Underwriters named in Schedule I hereto
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 29, 1999
Ladies and Gentlemen:
Pentair, Inc., a Minnesota corporation (the
"Company"), proposes, subject to the terms and
conditions stated herein and in the Underwriting
Agreement, dated September 29, 1999 (the "Underwriting
Agreement"), between the Company on the one hand and
Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities Inc., Banc
of America Securities LLC and U.S. Bancorp Xxxxx
Xxxxxxx Inc. on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the
"Underwriters") the Shares specified in Schedule II
hereto (the "Designated Shares" consisting of Firm
Shares and any Optional Shares the Underwriters may
elect to purchase). Each of the provisions of the
Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each
of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each
representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement
shall be deemed to be a representation or warranty as
of the date of the Underwriting Agreement in relation
to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as
amended or supplemented relating to the Designated
Shares which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein
defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Shares pursuant to
Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such
Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement,
or a supplement to the Prospectus, as the case may be,
relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth
herein and in the Underwriting Agreement incorporated
herein by reference, (a) the Company agrees to issue
and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at
the purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I
hereto and, (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase
Optional Shares, as provided below, the Company agrees
to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly,
to purchase from the Company at the purchase price to
the Underwriters set forth in Schedule II hereto that
portion of the number of Optional Shares as to which
such election shall have been exercised.
The Company hereby grants to each of the
Underwriters the right to purchase at their election up
to the number of Optional Shares set forth opposite the
name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole
purpose of covering Overallotments in the sale of the
Firm Shares. Any such election to purchase Optional
Shares may be exercised by written notice from the
Representatives to the Company given within a period of
30 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of
Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined
by the Representatives, but in no event earlier than
the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business
days after the date of such notice.
If the foregoing is in accordance with your
understanding, please sign and return to us six
counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is
understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall
be submitted to the Company for examination, upon
request, but without warranty on the part of the
Representatives as to the authority of the signers
thereof.
Very truly yours,
Pentair, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
By:
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
SCHEDULE I
Underwriter Number of Maximum
Firm Number of
Shares to Optional
be Shares
Purchased Which May
be
Purchased
Xxxxxxx, Sachs & Co. 1,753,125 262,969
X.X. Xxxxxx Securities Inc. 1,753,125 262,969
Banc of America Securities LLC 584,375 87,656
U.S. Bancorp Xxxxx Xxxxxxx Inc. 584,375 87,656
Xxxxxxx Xxxxx & Company, L.L.C. 225,000 33,750
Credit Suisse First Boston Corporation 350,000 52,500
First Union Capital Markets Corp. 125,000 18,750
Xxxxxx Xxxxxxxxxx LLC 125,000 18.750
Total 5,500,000 825,000
SCHEDULE II
Title of Designated Shares:
Common Stock, par value $.16 2/3 per share
Number of Designated Shares:
Number of Firm Shares: 5,500,000
Maximum Number of Optional Shares: 825,000
Initial Offering Price to Public:
$41.00 per Share
Purchase Price by Underwriters:
$39.36 per Share
Commission Payable to Underwriters:
$1.64 per Share in Federal (same-day) funds
Form of Designated Shares:
Book-entry only form represented by one or more
securities deposited with The Depository Trust
Company or its designated custodian.
Specified Funds for Payment of Purchase Price:
Federal (same-day) funds
Describe any blackout provisions with respect to the
Designated Shares
The Company has agreed not to dispose of or hedge
any Common Stock of the Company or securities
exchangeable into Common Stock of the Company during
the period beginning September 29, 1999 through
December 27, 1999, without the prior written consent of
the Representative.
Time of Delivery:
9:30 a.m. (New York City time), October 5, 1999
Closing Location:
Xxxxxx & Xxxxxx, P.A., Minneapolis, Minnesota
Names and Addresses of Representatives:
Xxxxxxx Sachs & Co. X.X. Xxxxxx Securities Inc.
00 Xxxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX
00000-0000
Banc of America Securities LLC U.S. Bancorp Xxxxx Xxxxxxx Inc.
000 Xxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx Xxxxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxxxx, XX 00000
Other Terms:
None
ANNEX IV
Pursuant to Section 7(d) of the Underwriting
Agreement, the accountants shall furnish letters to the
Underwriters to the effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial
statements and any supplementary financial
information and schedules (and, if applicable,
financial forecasts and/or pro forma financial
information) examined by them and included or
incorporated by reference in the Registration
Statement or the Prospectus comply as to form in
all material respects with the applicable
accounting requirements of the Act or the Exchange
Act, as applicable, and the related published
rules and regulations thereunder; and, if
applicable, they have made a review in accordance
with standards established by the American
Institute of Certified Public Accountants of the
consolidated interim financial statements,
selected financial data, pro forma financial
information, financial forecasts and/or condensed
financial statements derived from audited
financial statements of the Company for the
periods specified in such letter, as indicated in
their reports thereon, copies of which have been
furnished to the representatives of the
Underwriters (the "representatives") such term to
include an Underwriter or Underwriters who act
without any firm being designated as its or their
representative;
(iii) They have made a review in
accordance with standards established by the
American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements
of income, consolidated balance sheets and
consolidated statements of cash flows included in
the Prospectus and/or included in the Company's
quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in
their reports thereon copies of which are attached
hereto; and on the basis of specified procedures
including inquiries of officials of the Company
who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the
applicable accounting requirements of the Act and
the Exchange Act and the related published rules
and regulations, nothing came to their attention
that caused them to believe that the unaudited
condensed consolidated financial statements do not
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial
information with respect to the consolidated
results of operations and financial position of
the Company for the five most recent fiscal years
included in the Prospectus and included or
incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in
the audited consolidated financial statements for
such five fiscal years which were included or
incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in
the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such
letter nothing came to their attention as a result
of the foregoing procedures that caused them to
believe that this information does not conform in
all material respects with the disclosure
requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with
generally accepted auditing standards, consisting
of a reading of the unaudited financial statements
and other information referred to below, a reading
of the latest available interim financial
statements of the Company and its subsidiaries,
inspection of the minute books of the Company and
its subsidiaries since the date of the latest
audited financial statements included or
incorporated by reference in the Prospectus,
inquiries of officials of the Company and its
subsidiaries responsible for financial and
accounting matters and such other inquiries and
procedures as may be specified in such letter,
nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed
consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included in the
Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all
material respects with the applicable
accounting requirements of the Exchange Act
and the related published rules and
regulations, or (ii) any material
modifications should be made to the unaudited
condensed consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included in the
Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus, for them to
be in conformity with generally accepted
accounting principles;
(B) any other unaudited income
statement data and balance sheet items
included in the Prospectus do not agree with
the corresponding items in the unaudited
consolidated financial statements from which
such data and items were derived, and any
such unaudited data and items were not
determined on a basis substantially
consistent with the basis for the
corresponding amounts in the audited
consolidated financial statements included or
incorporated by reference in the Company's
Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements
which were not included in the Prospectus but
from which were derived the unaudited
condensed financial statements referred to in
clause (A) and any unaudited income statement
data and balance sheet items included in the
Prospectus and referred to in clause (B) were
not determined on a basis substantially
consistent with the basis for the audited
financial statements included or incorporated
by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma
consolidated condensed financial statements
included or incorporated by reference in the
Prospectus do not comply as to form in all
material respects with the applicable
accounting requirements of the Act and the
published rules and regulations thereunder or
the pro forma adjustments have not been
properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more
than five days prior to the date of such
letter, there have been any changes in the
consolidated capital stock (other than
issuances of capital stock upon exercise of
options and stock appreciation rights, upon
earn-outs of performance shares and upon
conversions of convertible securities, in
each case which were outstanding on the date
of the latest balance sheet included or
incorporated by reference in the Prospectus)
or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or
any decreases in consolidated net current
assets or shareholders' equity or other items
specified by the Representatives, or any
increases in any items specified by the
Representatives, in each case as compared
with amounts shown in the latest balance
sheet included or incorporated by reference
in the Prospectus, except in each case for
changes, increases or decreases which the
Prospectus discloses have occurred or may
occur or which are described in such letter;
and
(F) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus
to the specified date referred to in clause
(E) there were any decreases in consolidated
net revenues or operating profit or the total
or per share amounts of consolidated net
income or other items specified by the
Representatives, or any increases in any
items specified by the Representatives, in
each case as compared with the comparable
period of the preceding year and with any
other period of corresponding length
specified by the Representatives, except in
each case for increases or decreases which
the Prospectus discloses have occurred or may
occur or which are described in such letter;
and
(vii) In addition to the examination
referred to in their report(s) included or
incorporated by reference in the Prospectus and
the limited procedures, inspection of minute
books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not
constituting an examination in accordance with
generally accepted auditing standards, with
respect to certain amounts, percentages and
financial information specified by the
Representatives which are derived from the general
accounting records of the Company and its
subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to,
the Registration Statement specified by the
Representatives or in documents incorporated by
reference in the Prospectus specified by the
Representatives, and have compared certain of such
amounts, percentages and financial information
with the accounting records of the Company and its
subsidiaries and have found them to be in
agreement.
All references in this Annex IV to the Prospectus
shall be deemed to refer to the Prospectus (including
the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in
relation to the applicable Designated Shares for
purposes of the letter delivered at the Time of
Delivery for such Designated Shares.
ANNEX V
MATERIAL SUBSIDIARIES
Subsidiary Jurisdiction of Incorporation
Delta International Machinery Corp. Minnesota
Xxxxxx-Cable Corporation Minnesota
Century Mfg. Co. Minnesota
Lincoln Automotive Company Minnesota
Pentair Pump Group, Inc. Minnesota
Xxxxx Controls, Inc. Wisconsin
Lincoln Industrial Corporation Minnesota
Xxxxxxx Enclosures Inc. Minnesota
Xxxxxxx, Inc. Rhode Island
Xxxxxxx X.X. Japan
Pentair UK Limited United Kingdom
Xxxxxxx UK Ltd United Kingdom
Pentair Enclosures UK Limited United Kingdom
WEB Tool & Manufacturing, Inc. Illinois
EuroPentair CmbH Germany
Xxxxxxx GmbH Germany
Xxxxxxx X.X. France
Lincoln GmbH Germany Germany
FLEX Elektrowerkzeuge GmbH Germany
WTM, Inc. Minnesota
Pentair Canada Canada
Essef Corporation Ohio
Falcon Manufacturing, Inc. Delaware
DeVilbiss Air Power Company Delaware
Pac-Fab, Inc. Delaware
Structural Europe NV Belgium
