1,100,000 Shares
WICOR, Inc.
(a Wisconsin corporation)
Common Stock
($1.00 Par Value)
PURCHASE AGREEMENT
___________, 1995
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
As Representatives of the several Underwriters
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
WICOR, Inc., a Wisconsin corporation (the "Company"), confirms
its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxx Xxxxxx Xxxxxxxx Inc. and Xxxxxx
X. Xxxxx & Co. Incorporated and each of the other Underwriters, if any,
named in Schedule A hereto (collectively, the "Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 9 hereof), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the "Representatives"),
with respect to the sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, $1.00 par value per share, of the Company (the
"Common Stock") set forth in Schedule A hereto. The shares of Common
Stock to be purchased by the Underwriters are hereinafter called the "Firm
Securities". The Company also proposes to issue and sell severally to the
Underwriters not more than an additional 165,000 shares of Common Stock
(the "Additional Securities"), if and to the extent that the
Representatives, on behalf of the Underwriters, shall have determined to
exercise the right to purchase the Additional Securities pursuant to
Section 2 hereof. The Firm Securities and the Additional Securities are
hereafter collectively referred to as the "Securities."
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-_____) and a related preliminary prospectus relating to the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed such amendments thereto, if any, and such amended preliminary
prospectus as may have been required to the date hereof. Such
registration statement (as amended, if applicable) has been declared
effective by the Commission. Such registration statement (as amended, if
applicable) and the prospectus constituting a part thereof (including in
each case all documents incorporated and deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act (the
"Incorporated Documents") and the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations")), as from time
to time amended or supplemented pursuant to the 1933 Act, the 1933 Act
Regulations, the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus on file at the Commission at the time the Registration
Statement becomes effective (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of the 1933
Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the
Underwriters for such use. References to the Registration Statement and
the Prospectus shall, unless otherwise specified, be deemed to refer to
the Registration Statement and the Prospectus as amended or supplemented
to the date of this Agreement.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document
under the 1934 Act which is or is deemed to be incorporated by reference
in the Registration Statement or the Prospectus, as the case may be, after
the date of effectiveness of the Registration Statement or issue date of
the Prospectus.
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to each Underwriter as of the date of this
Agreement as follows:
(i) The Registration Statement, at the time it was
declared effective by the Commission under the 1933 Act and at each
date any post-effective amendment or amendments thereto became
effective (the "Effective Date") (including the information deemed to
be included therein pursuant to Rule 430A(b) of the 1933 Act
Regulations), complied and, as of the date of this Agreement,
complies in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. The Registration Statement, at the
Effective Date (including the information deemed to be included
therein pursuant to Rule 430A(b) of the 1933 Act Regulations), did
not and, at the date of this Agreement, does not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time it was first
provided to the Underwriters for use in connection with the offering
of the Securities (whether or not required to be filed by the Company
with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations), did not and, as of the date of this Agreement, does not
and, as of the Closing Time (as defined in Section 2(c) hereof) and,
in respect of Additional Securities, at the Option Closing Time (as
defined in Section 2(c) hereof), will not include 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or
the Prospectus, but nothing contained herein is intended as a waiver
of compliance with the 1933 Act, the 1934 Act, the 1933 Act
Regulations or the 1934 Act Regulations.
(ii) The Incorporated Documents, 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
1934 Act Regulations, and, when read together with the other
information in the Prospectus, at the Effective Date, as of the date
of this Agreement and at the Closing Time, 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 were
made, not misleading.
(iii) The accountants who certified the financial
statements and supporting schedules incorporated by reference in the
Prospectus are independent certified accountants (the "Independent
Accountants") with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations.
(iv) The financial statements incorporated by reference in
the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries
as at the dates indicated and the results of their operations for the
periods specified; except as otherwise stated in the Registration
Statement, such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis; and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the
information required to be stated therein.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the financial or business condition or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, that are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular quarterly dividends, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing 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 Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the financial or business condition or the
earnings or business affairs of the Company and its subsidiaries
considered as one enterprise.
(vii) Each of Wisconsin Gas Company, Sta-Rite Industries,
Shurflo Pump Manufacturing Company and Hypro Corporation (the
"Subsidiaries") has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the financial or business condition or the earnings or
business affairs of the Company and its subsidiaries considered as
one enterprise; all of the issued and outstanding capital stock of
each of the Subsidiaries has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The authorized capital stock of the Company is
60,000,000 shares of Common Stock and 1,500,000 shares of Cumulative
Preferred Stock, $1.00 par value, of which ______ shares and no
shares, respectively, are outstanding at September 30, 1995 (except
for subsequent issuances, if any, pursuant to dividend reinvestment
or employee benefit plans referred to in the Prospectus); the shares
of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; the Securities
have been duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration therefor, will be validly issued and fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus; and the issuance of the
Securities is not subject to preemptive or other similar rights.
(ix) Neither the Company nor any of the Subsidiaries is in
violation of its charter or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any of
the Subsidiaries is subject; and the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all
necessary corporate action and 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 or any of the Subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of the Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of the Subsidiaries is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any applicable
law, administrative or court decree or, to the best knowledge of the
Company, any administrative regulation.
(x) No labor dispute with the employees of the Company or
any of the Subsidiaries exists or, to the knowledge of the Company,
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, or
in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xi) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened, against or
affecting the Company or any of the Subsidiaries, that is required to
be disclosed in the Registration Statement (other than as disclosed
therein), or that might result in any material adverse change in the
financial or business condition or in the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise, or that might materially and adversely affect the
properties or assets thereof or that might materially and adversely
affect the consummation of this Agreement; and all pending legal or
governmental proceedings to which the Company or any of the
Subsidiaries is a party or of which any of their respective
properties or assets is the subject that are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xii) The Company and the Subsidiaries own or possess, or
can acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names (collectively, "patent and proprietary rights") presently
employed by them in connection with the business now operated by
them, and neither the Company nor any of the Subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any patent or
proprietary rights, or of any facts which would render any patent and
proprietary rights invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xiii) No authorization, approval or consent of any court
or governmental authority or agency is necessary in connection with
the sale of the Securities hereunder, except such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities
laws.
(xiv) The Company and the Subsidiaries possess such
certificates, authorizations, franchises and permits issued by the
appropriate state, federal, local and foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, and
neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authority, permit or franchise that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the financial or
business condition or the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise.
(xv) Neither the Company nor any of its subsidiaries is a
party to any agreement entitling any person or entity to require the
Company to register any securities of the Company owned of record or
beneficially by such person or entity as a result of the transactions
contemplated by this Agreement, or to file any registration statement
in connection therewith.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On
the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees
to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $______ per share, the number of
Securities set forth in Schedule A hereto opposite the name of such
Underwriter, plus any additional number of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each of the Underwriters, and the
Underwriters shall have a one-time right to purchase from the Company,
severally and not jointly, at a purchase price $______ per share, up to
165,000 Additional Securities. Additional Securities may be purchased as
provided in Section 2(c) hereof solely for the purpose of covering over-
allotments made in connection with the public offering of the Firm
Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities that bears the same proportion to the total number
of Additional Securities to be purchased as the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule A attached
hereto bears to the total number of Firm Securities.
(b) The Company has been advised by the Representatives that
the Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has been
executed and delivered. The Company has further been advised that the
Underwriters propose to initially offer the Securities to the public at
the public offering price of $______ per share.
(c) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of Xxxxx &
Xxxxxxx, Milwaukee, Wisconsin, or at such other place as shall be agreed
upon by the Representatives and the Company, at 10:00 A.M. on the third
business day (unless postponed in accordance with the provisions of
Section 9 hereof) following the date of this Agreement, or such other time
not later than ten business days after such date as shall be agreed upon
by the Representatives and the Company (such time and date of payment and
delivery being herein called the "Closing Time"). Payment for any
Additional Securities shall be made as provided above except that the hour
and date shall be designated in a written notice from the Representatives
to the Company (the "Option Closing Time") (which may be the same as the
Closing Time but shall in no event be earlier than the Closing Time nor
later than three business days after the giving of the notice herein
referred to). Such notice shall include the number of the Additional
Securities to be purchased. The notice of the determination to exercise
the option to purchase Additional Securities and of the Option Closing
Time may be given at any time within 30 days of the date of this
Agreement. Payment shall be made to the Company by certified or official
bank check or checks drawn in New York Clearing House funds or similar
next day funds payable to the order of the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. Certificates for
the Securities shall be in such denominations and registered in such names
as the Representatives may request in writing at least two business days
before the Closing Time or the Option Closing Time, as the case may be.
It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Securities that it has agreed to purchase.
Xxxxxxx Xxxxx, individually and not as representative of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for
the Securities to be purchased by any Underwriter whose check has not been
received by the Closing Time or the Option Closing Time, as the case may
be, but such payment shall not relieve such Underwriter from its
obligations hereunder. The certificates for the Securities will be made
available for examination and packaging by the Representatives not later
than 10:00 A.M. on the last business day prior to the Closing Time or the
Option Closing Time, as the case may be, at the office
of______________________, New York, New York.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) The Company will notify the Representatives immediately (i)
of the effectiveness of any amendment to the Registration Statement, (ii)
of the transmittal to the Commission for filing of any supplement to the
Prospectus, including any document to be filed pursuant to the 1934 Act
which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission, (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.
(b) The Company will give the Representatives notice of its
intention to file or prepare any amendment (including any post-effective
amendment) to the Registration Statement or, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
any amendment or supplement to the Prospectus and will furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file any such amendment or supplement or use any
such prospectus to which the Representatives or counsel for the
Underwriters shall direct.
(c) The Company will deliver to the Representatives three
signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein) and will also deliver to the Representatives a
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will furnish to the Representatives for the use
by the Underwriters, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request for the purposes contemplated by
the 1933 Act or the 1933 Act Regulations, or the 1934 Act or the 1934 Act
Regulations.
(e) During the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, if any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the
Company will forthwith amend or supplement the Prospectus (in form and
substance reasonably satisfactory to counsel for the Underwriters after
consultation with the Representatives) so that, as so amended or
supplemented, the Prospectus will not include 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 existing at the
time it is delivered to a purchaser, not misleading, and the Company will
furnish to the Representatives for the use by the Underwriters a
reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may reasonably designate; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect until the
distribution of all of the Securities has been completed.
(g) 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, an earning statement covering a twelve
month period beginning not later than the first day of the Company's
fiscal quarter next following the Effective Date of the Registration
Statement, which earning statement shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 of the 1933 Act Regulations and which
need not be certified by independent public accountants unless required by
the 1933 Act.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(i) If, at the Effective Date, any information shall have been
omitted therefrom in reliance upon Rule 430A(b) of the 1933 Act
Regulations, the Company will prepare, and file or transmit for filing
with the Commission in accordance with such Rule 430A(b) and Rule 424(b)
of the 1933 Act Regulations, copies of an amended Prospectus, or, if
required by such Rule 430A(b), a post-effective amendment to the
Registration Statement (including an amended Prospectus), containing all
information so omitted.
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
(k) During a period of [180] days from the date of this
Agreement, the Company will not, without the Representatives' prior
written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Common Stock or any
security convertible into or exchangeable into or exercisable for Common
Stock (except for Common Stock issued pursuant to this Agreement or
pursuant to dividend reinvestment or employee benefit plans in effect on
the date hereof).
SECTION 4. Payment of Expenses. Except as otherwise provided
in this Agreement, the Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (a) the
printing and filing of the Registration Statement as originally filed and
of each amendment thereto, (b) the printing of this Agreement, (c) the
preparation, issuance and delivery of the certificates for the Securities
to the Underwriters, (d) the fees and disbursements of the Company's
counsel and accountants, (e) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey (not to exceed in the aggregate
$6,000), (f) the printing and delivery to the Underwriters of copies of
the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Prospectus and any
amendments or supplements thereto, (g) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, (h) fees payable in
connection with any required filing by the Underwriters with the National
Association of Securities Dealers Inc., and (i) the fees and expenses
incurred in connection with the listing of the Common Stock on the New
York Stock Exchange.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 hereof, the Company shall
reimburse the Underwriters for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for
the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy, at
the date of this Agreement and at the Closing Time, of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The price
of the Securities and any price-related information previously omitted
from the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed
time period and prior to Closing Time and the Company shall have provided
evidence satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with such Rule
430A(b).
(b) At the Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of Closing Time, of
Xxxxx & Xxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Wisconsin and has corporate authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus; and to the best of
their knowledge and information, the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required;
(ii) The authorized, issued and outstanding capital
stock of the Company is as set forth in Section 1(a)(viii) of
this Agreement and the shares of issued and outstanding Common
Stock have been duly authorized and validly issued and are fully
paid and non-assessable;
(iii) The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment therefor, will be validly issued and
fully paid and non-assessable;
(iv) The issuance of the Securities is not subject to
preemptive or other similar rights arising by operation of law,
under the charter or by-laws of the Company or, to the best of
their knowledge and information, otherwise;
(v) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and, to
the best of their knowledge and information, is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required; all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, to the best of their
knowledge and information, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(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 Effective
Date (including the information deemed to be included therein
pursuant to Rule 430A(b) of the 1933 Act Regulations), and the
Prospectus, at the date it was transmitted for filing to the
Commission pursuant to Rule 424(b) and as of the date hereof
(other than the financial statements and supporting schedules
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 and the 1933 Act Regulations; and
the Incorporated Documents, at the time they were filed with the
Commission, complied as to form in all material respects with
the 1934 Act and the 1934 Act Regulations;
(ix) The Common Stock conforms to the description
thereof contained in the Prospectus, and the form of certificate
used to evidence the Common Stock is in due and proper form and
complies with all applicable statutory requirements;
(x) There are no legal or governmental proceedings
pending or threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and to the best
of their knowledge and information, all pending legal or
governmental proceedings to which the Company or any subsidiary
is a party or to which any of their property is subject which
are not described in the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate, not material;
(xi) There are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to
be described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto
are correct, and to the best of their knowledge and information,
no default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to, or filed or
incorporated by reference;
(xii) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the sale of the Securities to the Underwriters,
except such as may be required under the 1933 Act or the 1933
Act Regulations or state securities law; and, to the best of
their knowledge and information, the execution and delivery of
this Agreement and the consummation of the transactions
contemplated 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 or any of the Subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or by-
laws of the Company, or any applicable law, administrative
regulation or administrative or court decree; and
(xiii) Neither the Company nor any of its
subsidiaries is a party to any agreement entitling any person or
entity to require the Company to register any securities of the
Company owned of record or beneficially by such person or entity
as a result of the transactions contemplated by this Agreement,
or to file any registration statement in connection therewith.
(2) The favorable opinion, dated as of Closing Time, of
Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Underwriters,
with respect to the matters set forth in (iii) and (vi) to (ix),
inclusive, of subsection (b)(1) of this Section, except that, with
respect to the matters referred to in (ix), no opinion need be
expressed (A) as to whether any of the Company's outstanding shares
of Common Stock, other than the Securities, have been duly authorized
or validly issued or are fully paid or non-assessable or (B) with
respect to the statement that holders of Common Stock have no
preemptive rights, except to the extent that such rights may arise by
operation of law or under the charter or by-laws of the Company.
In giving such opinion, counsel for the Underwriters may rely
(i) as to all matters of Wisconsin law and legal conclusions based
thereon, upon the opinion of Xxxxx & Lardner and (ii) as to matters
of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
(3) In giving their opinions required by subsections
(b)(1) and (b)(2), respectively, of this Section, Xxxxx & Xxxxxxx and
Winthrop, Stimson, Xxxxxx & Xxxxxxx shall each additionally state
that nothing has come to their attention that would lead them to
believe that the Registration Statement (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which counsel
need make no statement), at the Effective Date or at the date hereof
(including the information deemed included therein pursuant to Rule
430A(b) of the 1933 Act Regulations), 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 (except for financial statements
and schedules and other financial or statistical data included or
incorporated by reference therein, as to which counsel need make no
statement), at the date it was transmitted for filing to the
Commission pursuant to Rule 424 or at Closing Time, included or
includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(c) At the Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is given
in the Registration Statement and the Prospectus (without giving effect to
any amendment or supplement thereto), any material adverse change in the
financial or business condition or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President or
a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section l are true and correct with the
same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement the
Representatives shall have received from the Independent Accountants a
letter dated the date of this Agreement, in form and substance
satisfactory to the Representatives, confirming, through a specified date
not more than five days prior to the date of this Agreement, that they are
independent certified accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations and stating in effect that (i) in their opinion, the financial
statements and supplemental schedules of the Company and its subsidiaries
audited by them and incorporated by reference in the Prospectus and
included or incorporated by reference in the Company's most recent Form
10-K comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations and
(ii) on the basis of (1) procedures performed, as specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited balance sheets and related unaudited
condensed statements of income, retained earnings and cash flows of the
Company incorporated by reference in the Registration Statement and
included in the Company's quarterly reports on Form 10-Q (collectively,
"Form 10-Qs"), (2) a reading of the latest unaudited operating revenues
and net income included or incorporated by reference in the Prospectus,
(3) a reading of the latest available unaudited financial statements of
the Company, (4) a reading of the minutes of the meetings of the
stockholder, the Board of Directors and the Executive Committee of the
Board of Directors of the Company as set forth in the minute books since
December 31, 1994, and (5) inquiries of certain officials of the Company
who have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit made
in accordance with generally accepted auditing standards and would not
necessarily reveal matters of significance with respect to the comments
made in such letter, and accordingly that the Independent Accountants make
no representations as to the sufficiency of such procedures for the
Representatives' purposes), nothing has come to their attention which
caused them to believe that (A) the unaudited financial statements
included in the Form 10-Qs do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and
the 1934 Act Regulations, or that any material modifications should be
made to said unaudited financial statements for them to be in conformity
with generally accepted accounting principles, (B) on the date of the
latest available financial statements and on a specified date not more
than five days prior to the date of this Agreement, as the case may be,
there was any change in the common stock or long-term debt (except for
long-term debt acquired for sinking fund purposes or redeemed pursuant to
sinking fund provisions, or changes in obligations under capital leases
incurred in the ordinary course of the Company's business), of the
Company, or any decrease in its net assets (except as occasioned by the
declaration of dividends), in each case as compared with the amounts shown
in the most recent balance sheet included in the most recent Form 10-K or
Form 10-Q, except in all instances for changes or decreases which the
Registration Statement discloses have occurred or may occur, and (C) for
the period January 1, 1995 through the most recent month-end preceding the
date of the Prospectus there were any decreases in operating revenues or
net income compared to the corresponding period in the previous year.
Such letter shall also cover such other matters as the Representatives may
reasonably request.
(e) At the Closing Time the Representatives shall have received
from the Independent Accountants a letter, dated as of the Closing Time,
in form and substance satisfactory to the Representatives, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section 5, except that the specified date referred
to therein shall be a date not more than five days prior to the Closing
Time.
At the Option Closing Time, the Representatives shall receive
from the Independent Accountants a letter in respect of the Additional
Securities, dated the Option Closing Time, in form and substance
satisfactory to the Representatives, confirming as of a date not more than
five days prior to the date of the letter the statements contained in the
letters referred to above.
(f) At the time of the execution of this Agreement the
Representatives shall have received from Deloitte & Touche LLP, the
independent accountants for Hypro Corporation ("Hypro"), a letter dated
the date of this Agreement, in form and substance satisfactory to the
Representatives, with respect to financial information relating to Hypro
[and its subsidiaries] included or incorporated by reference in the
Registration Statement and the Prospectus as may be requested by the
Representatives.
(g) At the Closing Time and, with respect to the Additional
Securities, the Option Closing Time, counsel for the Underwriters shall
have been furnished with such documents as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale
of the Securities as herein contemplated shall be satisfactory in form and
substance to counsel for the Underwriters.
(h) At the Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange upon notice of
issuance.
At the Option Closing Time, the Representatives shall be
entitled to receive the opinions and certificates described in subsections
(b) and (c) of this Section, modified to relate to the Additional
Securities.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives 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 4
hereof.
SECTION 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter, its officers, directors,
employees and agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter, acting severally and not jointly, agrees
to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section 6, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). In
case any action shall be brought against the Company or any person so
indemnified based on the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties
given to the Company, and the Company and each person so indemnified shall
have the rights and duties given to the Underwriters in each case by the
provisions of subsection (a) of this Section 6.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability that it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense
of such action with counsel chosen by it reasonably satisfactory to such
indemnified parties in such action. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action; provided, however, that if such
indemnified parties reasonably object to such assumption on the ground
that there may be legal defenses available to them that are different from
or in addition to those available to such indemnifying party, then the
fees and expenses of separate counsel for the indemnified parties shall be
paid by the indemnifying parties. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction (plus local counsel)
arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be
unenforceable by the indemnified parties although applicable in accordance
with its terms, the Company and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and one
or more of the Underwriters in respect of such offering in such
proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on
the cover page of the Prospectus bears to the initial public offering
price appearing thereon, and the Company is responsible for the balance;
provided, however, that person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Representatives,
in consultation with the other Underwriters, may terminate this Agreement,
by notice to the Company, at any time at or prior to the Closing Time, (i)
if there has occurred any outbreak of hostilities, or escalation thereof,
or other calamity or crisis, the effect of which is such as to make it, in
the judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities or (ii)
if trading in the Common Stock has been suspended by the Commission or the
New York Stock Exchange, or 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 such Exchanges or by order
of the Commission or any other governmental authority or (iii) if a
banking moratorium has been declared by either Federal, Wisconsin or New
York authorities.
(b) If this Agreement is terminated pursuant to this Section 9,
such termination shall be without liability of any party to any other
party except as provided in Sections 4 and 6 hereof.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Securities that it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; provided, however,
that if the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) If the number of Defaulted Securities does not exceed 10%
of the Securities, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters.
(b) If the number of Defaulted Securities exceeds 10% of the
Securities, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company, except with respect to
the payment of expenses to be borne by the Company and the Underwriters as
provided in Section 4 hereof and the indemnities of the Company and the
Underwriters contained in Section 6 hereof.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either the Representatives or the Company
shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus, or any supplements or amendments
thereto, or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to the Representatives, x/x
Xxxxxxx Xxxxx, Xxxxxxx Xxxxx World Headquarters, North Tower, World
Financial Center, New York, New York 10281-1327, attention of General
Counsel ________ _________; notices to the Company shall be directed to it
at 000 Xxxx Xxxxxxxxx Xxxxxx, P. O. Xxx 000, Xxxxxxxxx, Xxxxxxxxx 00000,
attention of _______________, _______________.
SECTION 12. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any person, firm or corporation,
other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred
to in Section 6 hereof and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company 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 Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Company in accordance
with its terms.
Very truly yours,
WICOR, INC.
By
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:_____________________________________________
Authorized Signatory
For themselves and as Representatives
of the other Underwriters named in Schedule A hereto.
SCHEDULE A
Number
Name of Underwriter of Shares
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ...........................
Xxxx Xxxxxx Xxxxxxxx Inc. ................
Xxxxxx X. Xxxxx & Co. Incorporated .......
_________
Total ............................... 1,100,000
