[Form of Underwriting Agreement]
$[ ],000,000
WISCONSIN GAS COMPANY
Notes
UNDERWRITING AGREEMENT
____________, 1995
XXXX XXXXXX XXXXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
X.X. XXXXXXX & SONS, INC.
c/o Xxxx Xxxxxx Xxxxxxxx Inc.
2 World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Wisconsin Gas Company, a Wisconsin corporation
(the "Company"), proposes to sell to you up to $[ ],000,000 aggregate
principal amount (or net proceeds in the case of securities issued at an
original issue discount), of its unsecured notes or debentures (the
"Notes") pursuant to this Agreement. Unless otherwise specified in the
Terms Agreement (as defined below), the Notes are to be issued under an
Indenture dated as of September 1, 1990, between the Company and Firstar
Trust Company, as trustee (such indenture together with any indentures
supplemental thereto and any officer's certificate creating a new series
of the Company's debt securities being hereinafter referred to as the
"Indenture"). The aggregate principal amount, maturity, interest rate or
rates and timing of payments thereof, redemption provisions and sinking
fund requirements, if any, exercise provisions and any other variable
terms which the Indenture contemplates, will be set forth in the Notes.
As used herein, "you" or "your," unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed or such other
parties as named in the Terms Agreement.
The offering of Notes will be made through you or an underwriting
syndicate managed by you. Whenever the Company determines to offer the
Notes through one or more of you, it will enter into an agreement (a
"Terms Agreement") providing for the sale of the Notes to, and the
purchase and offering thereof by, one or more of you and such other
underwriters, if any, selected by you as have authorized you to enter into
the Terms Agreement on their behalf (the "Underwriters," which term shall
include you whether acting alone in the sale of Notes or as members of an
underwriting syndicate). The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and
the Company. The Terms Agreement shall specify such applicable
information as is indicated in Exhibit A hereto. Each offering of Notes
will be governed by this Agreement, as supplemented by the Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-_____),
such registration statement relating to the Notes and the offering thereof
in accordance with Rule 415 under the Securities Act of 1933 (the "1933
Act"), and has filed such amendments thereto as may have been required to
the date hereof. Such registration statement as amended has been declared
effective by the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939 (the "1939 Act"). Such registration
statement as amended and the prospectuses relating to the sale of the
Notes by the Company constituting a part thereof, including all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934 (the "1934
Act"), the 1933 Act or otherwise, are collectively referred to herein as
the "Registration Statement" and the "Prospectus", respectively; provided,
however, that the supplement of the Prospectus contemplated by
Section 4(a) hereof (the "Prospectus Supplement") shall be deemed to have
supplemented the Prospectus.
2. (a) Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of you, as of the date
hereof and as of the date of the Terms Agreement (in each case, the
"Representation Date"), that:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date, complied in all material
respects with the requirements of the 1933 Act, the rules and
regulations thereunder (the "Regulations") and the 1939 Act.
The Registration Statement, at the time the Registration
Statement became effective and as of the applicable
Representation Date, did not, and will not, 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. The Prospectus, at the time
the Registration Statement became effective and as of the
applicable Representation Date, did not, and will not, contain
an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter expressly for use in
the Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of
Firstar Trust Company, as trustee under the Indenture.
(ii) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations thereunder, and, when read together with the other
information in the Prospectus, at the time the Registration
Statement and any amendments thereto became or become effective,
did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they are made, not
misleading.
(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, and except as set forth or contemplated thereby, the
Company has not incurred any liabilities or obligations, direct
or contingent, nor entered into any transactions not in the
ordinary course of business which in either case are material to
the Company; there has not been any material adverse change in
the condition (financial or otherwise), business, prospects or
results of operations of the Company, whether or not arising in
the ordinary course of business; there has not been any material
change in the capital stock or long-term debt of the Company;
and the Company has no subsidiaries.
(iv) The financial statements, together with the related
notes and schedules, set forth or incorporated by reference in
the Prospectus and elsewhere in the Registration Statement
fairly present, on the basis stated in the Registration
Statement, the financial position and the results of operations
and changes in financial position of the Company at the
respective dates or for the respective periods therein
specified. Such financial statements and related notes and
schedules have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
except as may be set forth in the Prospectus. The selected
financial and operating data set forth in the Prospectus under
the caption "Selected Financial Information" and "Ratio of
Earnings to Fixed Charges" and in the documents incorporated by
reference under the caption "Management's Discussion and
Analysis of Results of Operations and Financial Condition"
fairly presents, when read in conjunction with the Company's
financial statements and the related notes and on the basis
stated in the Registration Statement, the information set forth
therein.
(v) To the best of the Company's knowledge, Xxxxxx
Xxxxxxxx LLP, who have expressed their opinion on the audited
financial statements and related schedules included in the
Registration Statement, are independent public accountants as
required by the 1933 Act and the Regulations.
(vi) The Company has been duly organized and is validly
existing and in good standing as a corporation under the laws of
Wisconsin, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described
in the Registration Statement and Prospectus; the Company is in
possession of and operating in compliance with all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders required for the conduct of its
business, all of which are valid and in full force and effect
(except where any failure to do so would not result in a
material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the
Company), and the Company has not received any notice of
proceedings relating to the revocation or modification of any
such franchise, grant, authorization, license, permit, easement,
consent, certificate or order which, singly or in the aggregate,
if the subject of an unfavorable decision, would result in a
material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the
Company; the Company is duly qualified to do business and is in
good standing as a foreign corporation in all other
jurisdictions where its ownership or leasing of properties or
the conduct of its businesses requires such qualification except
in any case where the failure to so qualify or be in good
standing would not result in a material adverse change in the
condition (financial or otherwise), business, prospects or
results of operations of the Company.
(vii) The Company has obtained a certificate of
authority from the Public Service Commission of Wisconsin (the
"Wisconsin Commission") with respect to the Notes authorizing
the issue and sale of the Notes by the Company on the terms set
forth or contemplated in this Agreement and in the Registration
Statement; the Company will make such additional filings as are
required under said certificate of authority in a timely
fashion.
(viii) Other than WICOR, Inc. and Citibank, N.A., as
trustee of the Wisconsin Gas Company Employees' Savings Plan, no
person or corporation, which is a "holding company" or a
"subsidiary company" of a "holding company", within the meaning
of such terms as defined in the Public Utility Holding Company
Act of 1935, directly or indirectly owns, controls or holds with
power to vote, 10% or more of the outstanding voting securities
of the Company; and each of the Company and WICOR, Inc. is
presently exempt from the provisions of the Public Utility
Holding Company Act of 1935 which would require it to register
thereunder.
(ix) Except as disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Company
is a party or of which any property of the Company is the
subject, which are required to be disclosed in the Registration
Statement (other than as described therein), or which, if
determined adversely to the Company, the Company reasonably
believes would individually or in the aggregate result in a
material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the
Company or which would materially and adversely affect the
consummation of this Agreement; and to the best of the Company's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(x) The Company is not in violation of its charter or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
statute, contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which
it is a party or by which it or its property may be bound, which
violations or defaults would individually or in the aggregate
result in a material adverse change in the condition (financial
or otherwise), business, prospects or results of operations of
the Company; the performance of this Agreement and the
consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms or
provisions of or constitute a default under any statute,
contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which the
Company is a party or by which they are bound, the Company's
Certificate of Incorporation or Bylaws, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its property, which
breaches, violations or defaults would individually or in the
aggregate result in a material adverse change in the condition
(financial or otherwise), business, prospects or results of
operations of the Company.
(xi) The Notes have been duly authorized for issuance and
sale pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement and
of the Indenture, against payment of the consideration therefor
in accordance with this Agreement, the Notes will be valid and
legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws of general
applicability relating to or affecting enforcement of creditors'
rights or by general equity principles, and will be entitled to
the benefits of the Indenture; the Indenture has been duly
authorized, and, when executed and delivered by the Company and
the Trustee, will constitute a valid and legally binding
instrument enforceable in accordance with its terms except as it
may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of
creditors' rights; and the Notes and the Indenture conform or
will conform at the time of their issuance and execution, as the
case may be, in all material respects to the descriptions
thereof in the Prospectus.
(xii) Except as otherwise set forth in the Prospectus,
(A) the Company owns, possesses, currently has the right to use
or can acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names presently employed by them in
connection with the businesses now operated by them, and the
Company has not received any notice of infringement of or
conflict with asserted rights of others with respect to any of
the foregoing which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in
any material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the
Company and (B) the Company has good and marketable title to all
real and personal property owned by it, free and clear of any
security interest, lien or other encumbrance which would impair
the use, occupancy or value, or the marketability of title, of
the property subject thereto, except such as are described in
the Prospectus or such as do not materially affect the value of
the property and do not interfere with the use made and proposed
to be made of such property by the Company.
(xiii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement, the Indenture and the Notes, except such as may
be required by the National Association of Securities Dealers,
Inc. or under the 1933 Act or the securities or Blue Sky laws of
any jurisdiction in connection with the purchase and
distribution of the Notes by you, and except for the approval of
the Wisconsin Commission.
(xiv) 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.
(xv) The Company is, to the best of the Company's
knowledge, in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection
of the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") with such
exceptions as would not, singly or in the aggregate, result in a
material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the
Company.
(xvi) This Agreement has been duly authorized, executed
and delivered by the Company.
(xvii) No material labor dispute with the employees of
the Company exists or, to the best of the Company's knowledge,
is imminent; and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which might be
expected to result in any material adverse change in the
condition (financial or otherwise), business, prospects or
results of operations of the Company.
(xviii) Except as otherwise disclosed in the Prospectus,
the Company has not been assessed a tax deficiency or is the
subject of a pending tax dispute which, if adversely determined,
would have a material adverse effect on the condition (financial
or otherwise), business, prospects or results of operations of
the Company.
(b) Any certificate signed by an officer of the Company and
delivered to you or counsel for the Underwriters at the Closing Time
in connection with the offering of Notes shall be deemed a
representation and warranty of the Company, as to the matters covered
thereby, to each Underwriter participating in the offering.
3. Purchase and Sale. The several commitments of the Underwriters
to purchase Notes pursuant to the Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, any Notes to be
purchased by the Underwriters shall be made in registered form, at the
office of Xxxxx & Xxxxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000-0000, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third business day
following the date of the Terms Agreement or such other time as shall be
agreed upon by you and the Company (such time and date being referred to
as the "Closing Time"). Payment shall be made to the Company by certified
or official bank check or checks in New York Clearing House or similar
next day funds payable to the order of the Company against delivery to you
for the respective accounts of the Underwriters of the Notes to be
purchased by them (unless such Notes are issuable only in the form of a
single global Security registered in the name of a depository or a nominee
of a depository, in which event the Underwriters' interest in such global
certificate shall be noted in a manner satisfactory to the Underwriters
and their counsel). The Notes shall be in such authorized denominations
and registered in such names as the Underwriters may request in writing at
least two business days prior to the Closing Time. The Notes, which may
be in temporary form, will be made available for examination and packaging
by you on or before the first business day prior to the Closing Time.
4. Covenants of the Company. The Company covenants with each of
you as follows:
(a) Immediately following the execution of the Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the
principal amount of Notes covered thereby and their terms not
otherwise specified in the Indenture, and the principal amount of
Notes which each of the Underwriters severally has agreed to
purchase, the price at which the securities are to be purchased by
the Underwriters from the Company, the initial public offering price,
the selling concession and reallowance, if any, and such other
information as the Underwriters and the Company deem appropriate in
connection with the offering of the Notes. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 of the Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus and
such Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Notes any event
shall occur or condition exist as a result of which it is necessary,
in the view of your counsel or counsel for the Company, to further
amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading in the light of the circumstances existing at the time it
is delivered to a purchaser or if it shall be necessary, in the view
of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations, the Company will
promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such
requirements.
(c) With respect to the sale of Notes, the Company will make
generally available to its security holders as soon as practicable,
but not later than 60 days after the close of the period covered
thereby, earnings statements (in form complying with the provisions
of Rule 158 under the 0000 Xxx) covering twelve month periods
beginning not later than the first day of the Company's fiscal
quarter next following the "Effective Date" (as defined in Rule 158)
of the Registration Statement relating to the Notes.
(d) The Company will give you notice of its intention to file
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1934 Act, the
1933 Act or otherwise, will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such
amendment or supplement or other documents in a form to which you or
your counsel shall reasonably object.
(e) The Company will notify each of you immediately, and
confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act,
(iii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Prospectus or any Prospectus
Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you one signed and as
many conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as you may reasonably
request and will also deliver to you a conformed copy of the
Registration Statement and each amendment thereto for each of the
Underwriters.
(g) The Company will endeavor, in cooperation with you to
qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Notes; provided, however, that the Company shall not be required to
qualify to do business or to file a general consent to service of
process in any such jurisdiction. The Company will, from time to
time, prepare and file such statements and reports as are or may be
required by the laws of each jurisdiction in which the Notes have
been qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to
Section 13 or 14 of the 1934 Act.
(i) Between the date of the Terms Agreement and the Closing
Time with respect to the Notes, the Company will not, without your
prior consent, offer or sell, or enter into any agreement to sell,
any new issue of debt securities of the Company with a maturity of
more than one year, including additional Notes or any warrants for
the purchase of debt securities of the Company with a maturity of
more than one year.
(j) The Company will use the net proceeds received by it from
the sale of the Notes in the manner specified in the Prospectus under
"Use of Proceeds."
5. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Notes to the
Underwriters, (iii) the reasonable fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Notes under
securities laws in accordance with the provisions of Section 4(g),
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky survey and any legal investment survey,
provided that the fees of such counsel for the Blue Sky survey shall not
exceed $5,000, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement
and any amendments thereto, and of the Prospectus and Prospectus
Supplement and any amendments or supplements thereto, (vi) the printing
and delivery to the Underwriters of copies of the Indenture and the Blue
Sky survey and any legal investment survey, (vii) the fees of rating
agencies, and (viii) the costs and fees of any registrar or transfer
agent.
If the Terms Agreement is terminated by you in accordance with the
provisions of Section 8 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, each of its employees,
officers, directors and agents, and each person, if any, who controls such
Underwriter within the meaning of the 1933 Act, against any losses,
claims, damages, liabilities or expenses (including the reasonable cost of
investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, as incurred, which
may be based upon the 1933 Act, or any other federal or state statute or
at common law, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, written information furnished to
the Company by such Underwriter, directly or through you, specifically for
use in the preparation thereof.
Notwithstanding the above, the Company shall not be liable with
respect to any claims made against any Underwriter or any other
indemnified person under this subsection (a) unless such Underwriter or
indemnified person shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Underwriter or indemnified person (such notification by an Underwriter
shall suffice as notification on behalf of its officers, directors,
employees, agents and controlling persons), but failure to notify the
Company of any such claim shall not relieve it from any liability which it
may have to such Underwriter or indemnified person otherwise than on
account of the indemnity agreement contained in this subsection (a). In
addition, the Company shall not be liable to any Underwriter, employee,
officer, director or agent of any Underwriter, or any person controlling
such Underwriter under the indemnity agreement in this section (a) to the
extent that any such loss, claim, damage, liability or expense of such
Underwriter, employee, officer, director, agent or controlling person
results solely from the fact that such Underwriter sold Notes to a person
to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented if the Company has previously furnished
copies thereof to such Underwriter.
The Company shall be entitled to participate at its own expense in
the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if the Company elects to
assume the defense, such defense shall be conducted by counsel chosen by
it and reasonably satisfactory to such Underwriter or indemnified person,
as the case may be. In the event the Company elects to assume the defense
of any such suit and retain such counsel, the Underwriter or Underwriters
or other indemnified person or persons, defendant or defendants in the
suit, may retain additional counsel but shall bear the reasonable fees and
expenses of such counsel unless (i) the Company shall have specifically
authorized the retaining of such counsel or (ii) the parties to such suit
include such Underwriter or Underwriters or other indemnified person or
persons and such Underwriter or Underwriters or other indemnified person
or persons have been advised by counsel that one or more legal defenses
may be available to it or them which may not be available to the Company
in which case the Company shall not be entitled to assume the defense of
such suit notwithstanding its obligation to bear the reasonable fees and
expenses of such counsel and the Underwriters shall be entitled to use
separate legal counsel. The Company will not, without the prior written
consent of a majority of the Underwriters, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not such Underwriter or employee, officer, director
or agent of such Underwriter or any person who controls such Underwriter
is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of
such Underwriter and each such employee, officer, director, agent or
controlling person of the Underwriter from all liability arising out of
such claim, action, suit or proceeding.
(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, each of its employees and agents and each
person, if any, who controls the Company within the meaning of the 1933
Act, against any losses, claims, damages, liabilities or expenses
(including, unless the Underwriter or Underwriters elect to assume the
defense, the reasonable cost of investigating and defending against any
claims therefor and counsel fees incurred in connection therewith), joint
or several, as incurred, which may be based upon the 1933 Act, or any
other statute or at common law, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, but only insofar as any such statement or
omission was made in reliance upon, and in conformity with, written
information furnished to the Company by such Underwriter, specifically for
use in the preparation thereof; provided, however, that in no case is such
Underwriter to be liable with respect to any claims made against the
Company or any indemnified person under this subsection (b) unless the
Company or such person shall have notified such Underwriter in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
the Company or such person, but failure to notify such Underwriter of such
claim shall not relieve it from any liability which it may have to the
Company or such person otherwise than on account of its indemnity
agreement contained in this subsection (b). Such Underwriter shall be
entitled to participate at its own expense in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any such
liability, but, if such Underwriter elects to assume the defense, such
defense shall be conducted by counsel chosen by it and reasonably
satisfactory to the Company or such person, as the case may be. In the
event that any Underwriter elects to assume the defense of any such suit
and retain such counsel, the Company, said employees, agents, officers and
directors and any other Underwriter or Underwriters or employee or
employees or agent or agents or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them, respectively. The Underwriter
against whom indemnity may be sought shall not be liable to indemnify any
person for any settlement of any such claim effected without such
Underwriter's consent.
(c) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to therein, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses
(or actions in respect thereof), in such proportion as is appropriate to
reflect the respective relative benefits received by the Company and the
Underwriters from the offering of the Notes and the respective relative
fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any
other relevant equitable considerations. The respective relative benefits
received by the Company and the Underwriters 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. 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 or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if
any) to which such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) result solely from the fact that such
Underwriter sold Notes to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented if the
Company has previously furnished copies thereof to such Underwriter. The
Company and the Underwriters agree that it would not be just and equitable
if contribution 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. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
or expenses (or actions in respect thereof) referred to above shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
claim. Notwithstanding the provisions of this subsection (c), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(d) The obligations of the Company under this Section 6 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 1933 Act and each
employee, officer, director and agent of each Underwriter, and the
obligations of the Underwriters under this Section 6 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 1933 Act.
7. Survival of Indemnities, Representations Warranties, etc. The
respective indemnities, covenants, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set
forth in this Agreement or made by them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, the Company or any
of its officers or directors or any controlling person, and shall survive
delivery of and payment for any Notes.
8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Notes pursuant to the Terms Agreement are subject
to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of its
covenants and other obligations hereunder and to the following further
conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act, no order suspending trading or striking or
withdrawing any Notes to be listed on a national securities exchange
from listing and registration under the 1934 Act shall be in effect,
and no proceedings under the 1933 Act or the 1934 Act therefor shall
have been initiated or threatened by the Commission, (ii) the rating
assigned by any nationally recognized securities rating agency to any
debt securities, preferred stock or other obligations of the Company
as of the date of the Terms Agreement shall not have been lowered
since the execution of the Terms Agreement, and (iii) there shall not
have come to your attention any facts that would cause you to believe
that the Prospectus, together with the Prospectus Supplement, at the
time it was required to be delivered to a purchaser of the Notes,
contained 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 existing at such time, not misleading.
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time,
of Xxxxx & Xxxxxxx, counsel for the Company, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under
the laws of Wisconsin and has the requisite corporate power
and authority to own or lease its properties and conduct
its business as described in the Prospectus; and the
Company is duly qualified as a foreign corporation in good
standing in all other jurisdictions where its ownership or
leasing of properties or the conduct of its business
requires such qualification, except in any case where the
failure to so qualify or be in good standing would not
result in a material adverse change in the condition
(financial or otherwise), business or results of operations
of the Company.
(ii) This Agreement and the Terms Agreement have been
duly authorized, executed and delivered by the Company.
(iii) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other laws of general applicability relating
to or affecting enforcement of creditors' rights or by
general equity principles.
(iv) The Notes, including any Notes in global form,
are in the form contemplated by the Indenture; the Notes
have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as
specified in the Indenture and delivered against payment
pursuant to this Agreement, as supplemented by the Terms
Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other laws of general applicability relating
to or affecting enforcement of creditors' rights or by
general equity principles, and will be entitled to the
benefits of the Indenture.
(v) The Indenture and the Notes conform in all
material respects to the descriptions thereof in the
Prospectus and the applicable Prospectus Supplement.
(vi) The Indenture is qualified under the 1939 Act.
(vii) The Registration Statement is effective
under the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(viii) The Registration Statement, at the time it
became effective and as of the date of the Terms Agreement
(other than the financial statements included therein, as
to which no opinion need be rendered) complied as to form
in all material respects with the requirements of the 1933
Act, the 1939 Act, and the Regulations.
(ix) Each document, if any, filed pursuant to the 1934
Act (other than the financial statements included therein,
as to which no opinion need be rendered) and incorporated
by reference in the Prospectus complied when so filed as to
form in all material respects with the 1934 Act and the
rules and regulations thereunder.
(x) The Wisconsin Commission has authorized the issue
and sale of the Notes; such authorization, to the best of
their knowledge, is still in full force and effect and no
stay with respect thereto is pending or in effect and such
authorization is sufficient for the issue and sale of the
Notes; the issue and sale of the Notes as described in the
Prospectus are in conformity with the terms of such
authorization; and no other consent, approval,
authorization or order of any court or governmental
authority or agency is required in connection with the sale
of the Notes to the Underwriters, except such as may be
required under the 1933 Act and state securities laws; and
to the best of their knowledge and information, the
execution and delivery of this Agreement and the Terms
Agreement, the Indenture and the consummation of the
transactions contemplated herein and therein will not
conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument set forth in a
certificate of the President and Chief Executive Officer
and Chief Financial Officer of the Company, dated as of the
date of such opinion of counsel (which certificate shall
set forth all material contracts, indentures, mortgages,
deeds of trust, loan agreements, notes, leases or other
agreements or instruments to which the Company is a party
or by which it may be bound or to which any of its
properties or assets are subject), nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company, or any law, administrative
regulation or administrative or court decree, other than
such breaches, defaults or violations which individually or
in the aggregate would not result in a material adverse
change in the condition (financial or otherwise), business
or results of operations of the Company.
You shall also have received from such counsel a letter advising
that nothing has come to such counsel's attention that would lead
such counsel to believe that the Registration Statement, at the time
it became effective, or if an amendment to the Registration Statement
or an annual report on Form 10-K has been filed by the Company with
the Commission subsequent to the effectiveness of the Registration
Statement (other than the financial statements and supporting
schedules and other financial or statistical information set forth
therein, as to which no advice is given), then at the time of the
most recent such filing, and as of the date of the Terms Agreement,
contained any 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
amended or supplemented at the date of the Terms Agreement and at the
Closing Time, contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(2) The opinion or opinions, dated as of the Closing Time,
of Vedder, Price, Xxxxxxx & Kammholz, counsel for the
Underwriters, with respect to the Registration Statement, the
Prospectus, the validity of the Notes, and such other related
matters as the Underwriters may reasonably require. In giving
such opinion or opinions, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law
of the State of Illinois, the State of Delaware and the federal
law of the United States, upon opinions of counsel satisfactory
to the Underwriters. The Company shall have furnished or caused
to have been furnished to such counsel such documents as they
may request for the purpose of enabling them to pass upon such
matters.
(c) At the Closing Time there shall not have been, since the
date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, of the
Company or in the earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate of
the President and Chief Executive Officer and Chief Financial Officer
of the Company, dated as of the Closing Time, to the effect that
there has been no such material adverse change and to the effect that
the representations and warranties of the Company contained in
Section 2 are true and correct with the same force and effect as
though the Closing Time were a Representation Date.
(d) You shall have received from Xxxxxx Xxxxxxxx LLP a letter,
dated as of the date hereof or the date of the most recent report
filed with the Commission containing financial statements or
unaudited consolidated information and incorporated by reference in
the Registration Statement, if the date of such report is later than
the date hereof, and delivered at such time, in form heretofore
agreed to.
(e) The Underwriters shall receive from Xxxxxx Xxxxxxxx LLP or
other independent certified public accountants acceptable to the
Underwriters a letter, dated as of the Closing Time, reconfirming or
updating the letter required by subsection (d) of this Section to the
extent that may be reasonably requested.
(f) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Notes as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to
you.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 5.
9. Termination. This Agreement may be terminated for any reason at
any time by either the Company or you upon the giving of thirty days'
written notice of such termination to the other parties hereto. You may
also terminate the Terms Agreement, immediately upon notice to the
Company, at any time at or prior to the Closing Time (i) if there has
been, since the date of the Terms Agreement or since the respective dates
as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, of the
Company or in the earnings, business affairs or business prospects of the
Company whether or not arising in the ordinary course of business; or (ii)
if there has occurred any downgrading in the rating accorded the debt
securities of the Company by any rating agency; or (iii) if trading
generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any
other governmental authority, if a banking moratorium in the United States
generally or in the City or State of New York has been declared by either
Federal or New York authorities; or (iv) if there has been any material
adverse change in the financial markets of the United States, Japan or
Europe or any outbreak or material escalation of hostilities between the
United States and any foreign power, or of any other insurrection or armed
conflict involving the United States which, in your judgment makes it
impracticable or inadvisable to offer or sell the Notes or enforce
contracts for the sale of the Notes; or (v) if there has been any pending
legal proceedings against the Company or the Underwriters relating to the
Notes. In the event of any such termination, (x) the covenants set forth
in Section 4 with respect to any offering of Notes shall remain in effect
so long as any Underwriter owns any such Notes purchased from the Company
pursuant to the Terms Agreement and (y) the covenant set forth in
Section 4(c), the provisions of Section 5, the indemnity agreement set
forth in Section 6, the contribution provisions set forth in Section 6,
and the provisions of Sections 7 and 12 shall remain in effect.
10. Default. If one or more of the Underwriters participating in an
offering of Notes shall fail at the Closing Time to purchase the Notes
which it or they are obligated to purchase hereunder and under the Terms
Agreement (the "Defaulted Notes"), then such of you shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
nondefaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Notes in such amounts as may be
agreed upon and upon the terms herein set forth. If, however, during such
24 hours you shall not have completed such arrangements for the purchase
of all of the Defaulted Notes, then:
(a) if the aggregate amount of Defaulted Notes does not exceed
10% of the aggregate amount of the Notes to be purchased pursuant to
such Terms Agreement, the non-defaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting
obligations thereunder bear to the underwriting obligations of all
such non-defaulting Underwriters, or
(b) if the aggregate amount of Defaulted Notes exceeds 10% of
the aggregate amount of the Notes to be purchased pursuant to the
Terms Agreement, the Terms Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter or the
Company.
As used in this Section only, the "aggregate amount" of Notes shall
mean the aggregate principal amount of any Notes. No action taken
pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement and the Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you c/o Xxxx Xxxxxx Xxxxxxxx Inc. at Xxx
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, attention of
______________________, or, in respect of the Terms Agreement, to such
other person and place as may be specified therein; notices to the Company
shall be directed to it at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, attention of Chief Financial Officer.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company, and the Terms Agreement shall inure to
the benefit of and be binding upon the Company and any Underwriter who
becomes a party to the Terms Agreement, and their respective successors.
Nothing expressed or mentioned in this Agreement or a Terms Agreement is
intended or shall be construed to give any person, firm or corporation,
other than the parties hereto or thereto and their respective successors
and the controlling persons and officers and directors referred to in
Section 6 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or
the Terms Agreement or any provision herein or therein contained. This
Agreement and the Terms Agreement and all conditions and provisions hereof
or thereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Notes from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
13. Governing Law. This Agreement and the Terms Agreement shall be
governed by and construed in accordance with the laws of the State of New
York without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters acceptance thereof in the space provided below
for that purpose, whereupon this letter and the Underwriters acceptance
shall constitute a binding agreement between us.
Very truly yours,
WISCONSIN GAS COMPANY
By:
Title:
Accepted and delivered,
as of the date first above written:
XXXX XXXXXX XXXXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
X.X. XXXXXXX & SONS, INC.
By: XXXX XXXXXX XXXXXXXX INC.
Acting on its behalf and the
other named Underwriters
By:
Authorized Signature
EXHIBIT A
WISCONSIN GAS COMPANY
(a Wisconsin corporation)
Notes
TERMS AGREEMENT
Dated: ___________, 1995
TO: WISCONSIN GAS COMPANY
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Re: Underwriting Agreement dated November __, 1995.
Title of Notes:
Indenture (if other than as specified in the Underwriting Agreement):
Principal amount to be issued: $
Current ratings:
Interest rate: % Payable:
Date of maturity:
Form and Denomination:
Redemption provisions:
Sinking fund requirements:
[Public offering price: __%, plus accrued interest, or amortized original
issue discount, if any, from ____________, 1995.]
Purchase price: __%, plus accrued interest, or amortized original issue
discount, if any, from __________, 1995.] (payable in next day funds).
Closing date and location:
Each Underwriter severally agrees, subject to the terms and
provisions of the above referenced Underwriting Agreement, which is
incorporated herein in its entirety and made a part hereof, to purchase
the principal amount of Notes set forth opposite its name.
[Principal Amount
of
Name Notes
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxx X. Xxxxx & Co.
Incorporated
X.X. Xxxxxxx & Sons, Inc.
$______________
TOTAL: $____________ ]
This Terms Agreement may be executed by any one or more of the
parties 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.
XXXX XXXXXX XXXXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
X.X. XXXXXXX & SONS, INC.
By: XXXX XXXXXX XXXXXXXX INC.
Acting on its behalf and the other
named Underwriters.
By:
[Title]
Accepted:
WISCONSIN GAS COMPANY
By:
[Title]
