EXHIBIT 1.02
XCEL ENERGY INC.
(a Minnesota corporation)
FORM OF
UNDERWRITING AGREEMENT
FOR COMMON STOCK
(PAR VALUE $2.50 PER SHARE)
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Ladies and Gentlemen:
Xcel Energy Inc., a Minnesota corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), an aggregate of
shares (the "Shares") of common stock, par value $2.50 per share, of
the Company, including the associated common stock purchase rights (the "Common
Stock").
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such
Form, including a prospectus, for the registration under the Act of the Shares,
which registration statement has become effective. Such registration statement
and prospectus may have been amended or supplemented from time to time prior to
the date of this Agreement (which date is set forth in Schedule I hereto). Any
such amendment or supplement was filed with the Commission and any such
amendment has become effective. The Company will file with the Commission a
prospectus supplement (the "Prospectus Supplement") relating to the Shares
pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on or
prior to the date of this Agreement have been delivered to you and copies of the
Prospectus Supplement will be delivered to you promptly after it is filed with
the Commission. Such registration statement, as amended prior to the date of
this Agreement, and such prospectus, as amended and supplemented prior to the
date of this Agreement and as supplemented by the Prospectus Supplement, are
hereinafter called the "Registration Statement" and the "Prospectus",
respectively. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the date of this Agreement and, if the Company files any document pursuant to
the Exchange Act after the date of this Agreement and prior to the termination
of the offering of the Shares by the Underwriters, which documents are deemed to
be incorporated by reference into the Prospectus, the term "Prospectus" shall
refer also to said prospectus as supplemented by the documents so filed from and
after the time said documents are filed with the Commission. There are no
contracts or documents of the Company or any of its subsidiaries that are
required to be filed as exhibits to the Registration Statement or any documents
incorporated by reference therein by the Act, the Exchange Act or the rules and
regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects with
the requirements of the Act and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date (as
hereinafter defined), the Prospectus will comply in all material respects with
the Act and the rules and regulations of the Commission thereunder and will not
1
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and any documents so filed and incorporated by reference subsequent
to the date of this Agreement will, when they are filed with the Commission,
conform in all material respects to the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder; and none of such
documents include or will include any untrue statement of a material fact or
omit or will omit to state any material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading.
(d) Xxxxxx Xxxxxxxx LLP, which audited certain of the financial
statements incorporated by reference in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the Registration
Statement or Prospectus fairly present the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their
operations and changes in financial position for the periods specified, and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) 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 due
corporate authority to carry on the business in which it is engaged and to own
and operate the properties used by it in such business, as described in the
Prospectus; the Company is qualified to do business as a foreign corporation and
is in good standing under the laws of the States of North Dakota, South Dakota
and Colorado; and the Company is not required by the nature of its business to
be licensed or qualified as a foreign corporation in any other state or
jurisdiction; and, except as set forth in the Prospectus Supplement, the Company
has all material licenses and approvals required at the date hereof to conduct
its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through subsidiaries, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) 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
Supplement; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus Supplement, neither the Company
nor any of its subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary course of
business, which are material to the Company and its subsidiaries, and there has
not been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus Supplement.
2
(i) Neither the execution and delivery of this Agreement, the issuance
and delivery of the Shares, the consummation of the transactions herein
contemplated, the fulfillment of the terms hereof, nor compliance with the terms
and provisions of this Agreement, will conflict with, or result in the breach
of, any of the terms, provisions or conditions of the Restated Articles of
Incorporation, as amended, or by-laws of the Company, or of any contract,
agreement or instrument to which the Company is a party or in which the Company
has a beneficial interest or by which the Company is bound or of any order, rule
or regulation applicable to the Company of any court or of any federal or state
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or over its properties.
(j) The Shares have been duly authorized for issuance and sale pursuant
to this Agreement and, when issued and delivered and paid for as provided
herein, will be duly authorized, validly issued and fully paid and nonassessable
and will conform to the description of the Common Stock in the Registration
Statement and Prospectus. Shareholders of the Company will have no preemptive
rights with respect to the issuance of the Shares.
(k) The Agreement has been duly and validly authorized, executed and
delivered by the Company.
(l) [The Securities and Exchange Commission has issued a financing
order under the Public Utility Holding Company Act of 1935, which order
authorizes the issuance of the Shares, and no other approval of any regulatory
public body, state or federal, is, or will be at the Closing Date (as
hereinafter defined), necessary in connection with the issuance and sale of the
Shares pursuant to this Agreement, other than approvals that may be required
under state securities laws.]
(m) The Company has good and valid title to all real and fixed property
and leasehold rights which are owned by it, subject only to taxes and
assessments not yet delinquent; as to parts of the Company's property, certain
easements, conditions, restrictions, leases, and similar encumbrances which do
not affect the Company's use of such property in the usual course of its
business, and certain minor defects in titles which are not material, and
defects in titles to certain properties which are not essential to the Company's
business; and mechanics' lien claims being contested or not of record or for the
satisfaction or discharge of which adequate provision has been made by the
Company; and any real property and buildings held under lease by the Company is
held by it under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the
date hereof, 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 consolidated financial position,
stockholders' 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.
(o) The Company is not 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.
(p) Except as set forth in the Prospectus Supplement, the Company and
its subsidiaries (A) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its respective business and (C) are in compliance
with all terms and conditions of any such permits, licenses or approvals, except
where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives and each other Underwriter, and the
Representatives and each other Underwriter agree, severally and not jointly, to
purchase from the Company, at
3
the purchase price of $ per share, the total number of Shares set forth
opposite their respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Shares shall
be made at the place, date and time specified in Schedule I hereto (or such
other place, date and time not later than eight full business days thereafter as
the Representatives and the Company shall designate), which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time being herein called the "Closing Date"). Delivery of the Shares shall
be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Shares will be delivered in certificated
registered form. The Shares will be registered in the names of the Underwriters
and in the principal amounts set forth in Schedule II hereto except that if the
Company receives a written request from the Representatives prior to noon on the
second business day preceding the Closing Date giving the names in which the
Shares are to be registered and the denominations thereof the Company will
deliver the Shares so registered. Certificates for the Shares will be made
available to the Representatives for checking in New York, New York, not later
than 2:00 p.m., New York City time, on the business day preceding the Closing
Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424(b) and/or Rule 434 under
the Act and will notify the Representatives promptly of such filing. During the
period for which a prospectus relating to the Shares is required to be delivered
under the Act, the Company will promptly advise the Representatives (i) when any
amendment to the Registration Statement shall have become effective, (ii) when
any subsequent supplement to the Prospectus (including documents deemed to be
incorporated by reference into the Prospectus) has been filed, (iii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceedings for
that purpose. The Company will not file any amendment of the Registration
Statement or supplement to the Prospectus (including documents deemed to be
incorporated by reference into the Prospectus) unless the Company has furnished
to the Representatives a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares are
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission or will make a
filing with the Commission pursuant to Section 13 or 14 of the Exchange Act,
which will correct such statement or omission or will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not be
audited) of the Company, for a twelve-month period beginning after the date of
the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434 under
the Act, as soon as is reasonably practicable after the end of such period, but
in any event no later than eighteen months after the "effective date of the
Registration Statement" (as defined in Rule 158(c) under the Act), which will
satisfy the provision of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including all powers of attorney, consents and exhibits filed therewith
(other than exhibits incorporated by reference), and will deliver to the
Representatives conformed
4
copies of the Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, all amendments of and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Shares for sale under the
laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) So long as the Shares are outstanding, the Company will furnish (or
cause to be furnished) to each of the Representatives, upon request, copies of
(i) all reports to stockholders of the Company and (ii) all reports and
financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or otherwise
dispose of any securities of the Company (except under prior contractual
commitments which have been disclosed to you), without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld.
(h) The Company will use its best efforts to list, subject to notice of
issuance, the Shares on the New York, Pacific and Chicago Stock Exchanges.
5. Expenses. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Shares to
the Underwriters, all fees and expenses of the Company's counsel and
accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus (including all documents incorporated by reference therein) and any
amendments thereof or supplements thereto, all costs and expenses (including
fees and expenses of counsel) incurred in connection with "blue sky"
qualifications and the determination of the legality of the Shares for
investment by institutional investors, and all costs and expenses of the
printing and distribution of all documents in connection with this underwriting.
Except as provided in this Section 5 and Section 8 hereof, the Underwriters will
pay all their own costs and expenses, including the fees of their counsel and
any advertising expenses in connection with any offer they may make.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Shares shall be subject, in the discretion
of the Representatives, to the accuracy of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement relating to the Shares shall have been
filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within the
applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof; 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) The Representatives shall be furnished with opinions, dated the
Closing Date, of Xxxx X. Xxxxxxx, Vice President and General Counsel of the
Company, substantially in the form included as Exhibit A.
(c) The Representatives shall have received from Xxxxx, Day, Xxxxxx &
Xxxxx, Chicago, Illinois, counsel for the Underwriters, such opinion or opinions
dated the Closing Date with respect to the incorporation of
5
the Company, this Agreement, the Shares, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in clause (a) and (h) of this Section
6 and to the further effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
and
(ii) there has been no material adverse change in the condition of
the Company and its subsidiaries taken as a whole, financial or
otherwise, or in the earnings, affairs or business prospects of the
Company and its subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, from that set forth or contemplated
by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received a letter from Xxxxxx
Xxxxxxxx LLP, independent public accountant for the Company (dated the date of
this Agreement and Closing Date, respectively, and in form and substance
satisfactory to the Representatives) advising that (i) they are an independent
public accountant as required by the Act and published rules and regulations of
the Commission thereunder, (ii) in their opinion, the consolidated financial
statements and supplemental schedules incorporated by reference in the
Registration Statement and covered by their opinion filed with the Commission
under Section 13 of the Exchange Act comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
published rules and regulations of the Commission thereunder, (iii) they have
performed limited procedures, not constituting an audit, including a reading of
the latest available interim financial statements of the Company and its
consolidated subsidiaries, a reading of the minutes of meetings of the Board of
Directors, committees thereof, and of the Shareholders, of the Company and its
subsidiaries since the date of the most recent audited financial statements
included or incorporated by reference in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial accounting matters
and such other inquiries and procedures as may be specified in such letter, and
on the basis of such limited review and procedures nothing came to their
attention that caused them to believe that: (a) any material modifications
should be made to any unaudited consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement or
Prospectus for them to be in conformity with generally accepted accounting
principles or any unaudited consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement or
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the rules and regulations of the
Commission applicable to Form 10-Q; and (b) with respect to the period
subsequent to the date of the most recent financial statements included or
incorporated by reference in the Prospectus and except as set forth in or
contemplated by the Registration Statement or Prospectus, there were any
changes, at a specified date not more than five business days prior to the date
of the letter, in the capital stock of the Company, increases in long-term debt
or decreases in stockholders' equity or net current assets of the Company and
its consolidated subsidiaries as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in the Prospectus, or
for the period from the date of the most recent financial statements included or
incorporated by reference in the Prospectus to such specified date there were
any decreases, as compared with the corresponding period in the preceding year,
in operating revenues, operating income, net income, or earnings per share of
Common Stock of the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Representatives; and (iv)
they have carried out specified procedures performed for the purpose of
comparing certain specified financial information and percentages (which is
limited to financial information derived from general accounting records of the
Company) included or incorporated by reference in the Registration Statement and
Prospectus with indicated amounts in the financial statements or accounting
records of the Company and (excluding any questions of legal interpretation)
have found such information and percentages to be in agreement with the relevant
accounting and financial information of the Company referred to in such letter
in the description of the procedures performed by them.
6
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or the delivery of
the Shares on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, 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.
(h) (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 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
Supplement, and (ii) since the date of this Agreement, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in clause
(i) or (ii) is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated by the
Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact which in the opinion of
counsel for the Underwriters is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the Company
to sell and deliver the Shares are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Company or the Representative, threatened.
(b) The order of the Securities and Exchange Commission referred to in
paragraph (1) of Section 1 shall be in full force and effect.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Agreement and all obligations of the Company hereunder may
be cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
7
8. Reimbursement of Underwriters' Expenses. If the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Shares, including the reasonable fees and disbursements of counsel for the
Underwriters.
9. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Shares
as originally filed or in any amendment thereof, or in the Preliminary
Prospectus Supplement or the Prospectus or in any amendment thereof 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 agrees to reimburse
each such indemnified party for any legal or other expenses as reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damages, liability or action; provided that the Company will 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 any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
therein and provided further that such indemnity with respect to a prospectus
included in the registration statement or any amendment thereto prior to the
supplementing thereof with the Prospectus Supplement shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Shares which are the subject thereof if such person was not sent or given a
copy of the Prospectus (but without the documents incorporated by reference
therein) at or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such Prospectus was
corrected in the Prospectus, provided that the Company shall have delivered the
Prospectus, in a timely manner and in sufficient quantities to permit such
delivery by the Underwriters. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to
8
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Representatives in the case of subparagraph (a), representing
the indemnified parties under subparagraphs (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 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
on the other from the offering of the Shares. 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 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 the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. 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 the 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 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 Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 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 9 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.
11. Default by an Underwriter. (a) If any Underwriter shall default in
its obligation to purchase the Shares which it has agreed to purchase hereunder
(in this Section called the "Unpurchased Shares"), the
9
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Unpurchased 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 Unpurchased Shares, 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 Unpurchased 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 Unpurchased Shares,
or the Company notifies the Representatives that it has so arranged for the
purchase of such Unpurchased Shares, the Representatives or the Company shall
have the right to postpone the Closing Date for such Unpurchased 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 this Agreement with
respect to such Unpurchased Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Shares which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Shares,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Shares which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Shares which
such Underwriter agreed to purchase hereunder) of the Unpurchased Shares 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
Unpurchased Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Shares which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Shares, 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 Unpurchased Shares of a defaulting Underwriter or Underwriters, then
this Agreement 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 5 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
12. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Shares, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) if
a banking moratorium shall have been declared either by Federal, Minnesota or
New York State authorities, (iii) if trading in any securities of the Company
shall have been suspended or halted, or (iv) if there shall have occurred any
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a war or national emergency or any other
calamity or crisis the effect of which on the financial markets in the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery of
the Shares on the terms and in the manner contemplated in the Prospectus.
13. Representations and Indemnities to Survive Delivery. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective officers, directors or controlling persons within the meaning
of the Act, and will survive delivery of and payment for the Shares. The
provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing and, if
sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule I
10
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at 000 Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
attention Secretary.
15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9 hereof, and no
other person will have any right or obligation hereunder.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be executed in counterparts, all
of which, taken together, shall constitute a single agreement among the parties
to such counterparts.
18. Representation of the Underwriters. The Representatives represent
and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
19. Other. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
XCEL ENERGY INC.
By:
------------------------
Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[NAME OF REPRESENTATIVE]
By:
-----------------------------------
For itself or themselves and as Representatives
of the several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
11
SCHEDULE I
Underwriting Agreement dated ________________
Registration Statement No. 333-______________
Representatives and Addresses:
Payment to be made in federal (same day) funds. _________ Yes _______ No
Closing Date and Location:
Office for Payment of Shares:
Office for Checking of Shares:
SCHEDULE II
TOTAL NUMBER OF
SHARES TO BE
NAME PURCHASED
-------------------------------------------------------------------------------
Total.............................................
-------------------------------------------------------------------------------
EXHIBIT A
FORM OF OPINION OF XXXX X. XXXXXXX
RE: SHARES OF COMMON STOCK, PAR VALUE $2.50 PER SHARE, OF XCEL
ENERGY INC., A MINNESOTA CORPORATION.
Ladies and Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Xcel Energy Inc., a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of shares of
common stock, par value $2.50 per share, including the associated common stock
purchase rights (the "Shares"). In connection therewith I have participated in
the preparation of the proceedings for the issuance and sale of the Shares
including the Underwriting Agreement dated , between you and the Company
relating to your purchase of the Shares, herein called the "Agreement". I also
have participated in the preparation of or examined the registration statement
and any amendments thereto and the accompanying prospectuses and any supplements
thereto, as filed under the Securities Act of 1933, as amended (the "Act"), with
respect to the Shares. Whenever the terms "Registration Statement" or
"Prospectus" are used herein, they shall have the respective meanings set forth
in the Agreement. My examination has extended to all statutes, records,
instruments, and documents which I have deemed necessary to examine for the
purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws of
the State of Minnesota; has corporate power, right, and authority to do business
and to own property in the states of Minnesota, North Dakota, South Dakota and
Colorado in the manner and as set forth in the Prospectus; has corporate power,
right and authority to own securities of its subsidiaries; and has corporate
power, right, and authority to issue and sell the Shares;
2. The authorized capital stock of the Company is as set forth in the
Prospectus and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable;
3. Each Significant Subsidiary, as defined in the Agreement, of the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial properties
or in which the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of each subsidiary has been duly authorized
and validly issued and is fully paid and non-assessable; and the capital stock
of each such subsidiary owned by the Company, directly or through subsidiaries,
is owned free and clear of any pledge, lien, encumbrance, claim or equity;
4. The Agreement has been duly authorized, executed, and delivered by
the Company and is a valid and binding obligation of the Company, except to the
extent that the provisions for indemnities may be held to be unenforceable as
against public policy;
5. The issuance of the Shares by the Company in accordance with the
terms of this Agreement have been duly authorized by the Company; the statements
made under the caption "Description of Common Stock" in the Prospectus, insofar
as they purport to summarize provisions of documents specifically referred to
therein, fairly present the information called for with respect thereto by Form
S-3;
6. The consummation of the transactions contemplated in the Agreement
and the fulfillment of the terms thereof will not result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument known to me to which
the Company is a party or
A-1
by which it is bound, or the Restated Articles of Incorporation, as amended, or
By-laws of the Company or, to the best of my knowledge, any order, rule or
regulation applicable to the Company of any court or of any Federal or state
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or its property;
7. The Registration Statement has become effective under the Act. The
Prospectus Supplement (as defined in the Agreement) has been filed pursuant to
Rule 424(b) under the Act, and no proceedings for a stop order have been
instituted or to the knowledge of such counsel are pending or threatened under
Section 8(d) of the Act; the Securities and Exchange Commission has issued a
financing order under the Public Utility Holding Company Act of 1935 which order
authorizes the issuance of the Shares; and no further approval of,
authorization, consent, certificate or order of any governmental body, federal,
state or other, is required in connection with the issuance and sale of the
Shares by the Company to you as provided in the Agreement, except as may be
required by state securities laws;
8. At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to which no opinion
is being expressed) complied as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
9. I do not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as required nor of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required; and
10. All statements contained in the Registration Statement and
Prospectus under the caption "Description of Common Stock" purporting to set
forth the opinion of counsel or purporting to be based upon the opinion of
counsel correctly set forth my opinion on said respective matters.
In the course of my participation in the preparation of the
Registration Statement and Prospectus I made investigations as to the accuracy
of certain of the statements of fact contained therein, I discussed other
matters with officers, employees, and representatives of the Company, and I
examined various corporate records and data. While I do not pass upon or assume
responsibility for, and shall not be deemed to have independently verified, the
accuracy and completeness of the statements contained in the Registration
Statement or Prospectus (except as to matters set forth in paragraphs 8 and 10
above) nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus as of the date of the Agreement or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In giving opinions as to conformity to the laws of States other than
Minnesota and as to the franchises and titles to property of the Company, I have
in certain instances relied upon the opinion of other counsel employed or
retained by the Company to render opinions in respect thereto.
Respectfully submitted,
By:
-------------------------------------
Xxxx X. Xxxxxxx
Vice President and General Counsel
Xcel Energy Inc.
A-2
