Exhibit 1
WPS RESOURCES CORPORATION
UNDERWRITING AGREEMENT
November 9, 1999
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
c/o X.X. Xxxxxxx & Son's, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
WPS Resources Corporation, a Wisconsin corporation (the "Company")
confirms its agreement (the "Agreement") with the underwriters named in
Schedule B (collectively, the "Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 10 hereof),
for whom you are acting as representatives (the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the principal amount of
its senior debt securities, identified in Schedule A hereto (the "Senior
Securities"), to be issued under an Indenture dated as of October 1, 1999,
between the Company and Firstar Bank, National Association, as trustee (the
"Senior Trustee"), as supplemented by the First Supplemental Indenture, dated
as of November 1, 1999, between the Company and the Trustee (the "Senior
Indenture"). If the firm or firms listed in Schedule B hereto include only
the firm or firms described above as Representatives, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms. The Senior Securities are more fully described
in the Final Prospectus (as defined below).
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No.333-88525)
relating to the Senior Securities, the subordinated debt securities of the
Company, and the common stock, par value $0.01 per share, of the Company,
including the related common stock purchase rights provided for in the Rights
Agreement, dated December 12, 1996 between the Company and Firstar Trust
Company (the "Common Stock" and, together
with the Senior Securities and the subordinated debt securities, the
"Securities") and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (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. The Company has filed with the Commission pursuant to
Rule 424(b) under the 1933 Act any preliminary prospectus used in connection
with the offering of the Senior Securities prior to the date hereof and
required to be so filed. The Company proposes to file with the Commission
pursuant to Rule 424(b) under the 1933 Act a final prospectus, including a
supplement to the form of prospectus included in such registration statement,
relating to the Senior Securities and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the "Registration Statement;"
such prospectus in the form in which it appears in the Registration Statement
is hereinafter called the "Basic Prospectus;" and such final form of
prospectus, including the prospectus supplement relating to the Senior
Securities, in the form in which it shall be filed with the Commission
pursuant to Rule 424(b) (including the Basic Prospectus as so supplemented)
is hereinafter called the"Final Prospectus." Any preliminary form of the
Final Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
on or before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be; provided that if the Company files a registration statement with
the Commission pursuant to Rule 462(b) under the Act (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the 1934 Act
after the date of this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. 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
Final Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information that are or are deemed to be incorporated by reference in the
Registration Statement or the Final Prospectus, as the case may be.
For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Final
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the
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copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of
the Closing Time referred to in Section 2(c) hereof and agrees with each
Underwriter as follows.
(i) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation under the
laws of the State of Wisconsin with power and authority (corporate and
other) to own, lease and operate its properties and conduct its business
as described in the Registration Statement and Final Prospectus; the
Company has not filed Articles of Dissolution with the Department of
Financial Institutions of the State of Wisconsin, and no grounds exist
for the Department of Financial Institutions of the State of Wisconsin
to dissolve such corporation administratively pursuant to the provisions
of the Wisconsin Business Corporation Law; the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification,
except where the failure to so qualify and be in good standing would not
result in a material adverse change in the condition (financial or
other), net worth or results of operations or 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 (a "Material Adverse Effect")
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each a "Significant Subsidiary"), as defined
in Rule 405 of Regulation C of the rules and regulations of the
Commmission under the 1933 Act (the "1933 Act Regulations"), has been
duly incorporated and is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, and has corporate power
and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Final
Prospectus; no Significant Subsidiary which is incorporated under the
laws of the State of Wisconsin has filed Articles of Dissolution with
the Department of Financial Institutions of the State of Wisconsin, and
no grounds exist for the Department of Financial Institutions of the
State of Wisconsin to dissolve any such Significant Subsidiary
administratively pursuant to the provisions of the Wisconsin Business
Corporation Law; each Significant Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the ownership or lease of substantial properties
or the conduct of its business requires such qualification, except where
the failure to so qualify or to be in good standing would not result in
a Material Adverse Effect.
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(iii) Authorization of Stock of the Company. All of the issued
and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable, except with respect
to wage claims of employees of the Company as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as such
statutory provision has been judicially interpreted.
(iv) Ownership of Significant Subsidiaries. All of the issued
and outstanding shares of capital stock of the Significant Subsidiaries
have been duly and validly issued, and are fully paid and non-
assessable, except with respect to wage claims of employees of those
Significant Subsidiaries which are subject to Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law, as such statutory provision has
been judicially interpreted; the Company owns, beneficially and of
record, all of the common stock of each Significant Subsidiary, directly
or through subsidiaries, in each case free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of the Significant Subsidiaries were issued in
violation of the preemptive or similar rights of any securityholder of
such subsidiary. Other than the Significant Subsidiaries, the Company
has no subsidiaries which, either individually or considered in the
aggregate as a single subsidiary, constitute a "significant subsidiary"
as defined in Rule 405 under the 1933 Act Regulations.
(v) Compliance with Registration Requirements.
(A) The Company meets the requirements for use of Form
S-3 under the 1933 Act Regulations. The Registration Statement has
become effective under the 1933 Act and the 1933 Act Regulations, and no
stop order suspending the effectiveness of such Registration Statement
has been issued, and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company,
threatened by the Commission. The Company has complied with any request
on the part of the Commission for additional information.
(B) On the effective date of the Registration Statement
(including any Rule 462(b) Registration Statement), as of the date
hereof, when, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective (including the
filing of any document incorporated by reference in the Registration
Statement), and at the applicable Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Senior Indenture
complied or will comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act,
and the rules and regulations of the Commission under the 1939 Act ("the
1939 Act Regulations"), and (ii) the Registration Statement, as amended
as of any such time, 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
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the statements therein not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or any amendment or supplement
thereto made in reliance upon and in conformity with information
furnished to the Company in writing by an Underwriter, or by the
Representatives on behalf of an Underwriter, expressly for use in the
Registration Statement or any amendment or supplement thereto or to any
statements in or omissions from the Statements of Eligibility of the
Senior Trustee on Form T-1 (the "Form T-1's").
(C) On its issue date, when filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, and, in the case of the
Final Prospectus, as of the date hereof and at the Closing Date,
(i) each Preliminary Prospectus and the Final Prospectus complied or
will comply when so filed in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations, and (ii) each
Preliminary Prospectus and the Final Prospectus 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 representations and warranties
in this subsection shall not apply to statements in or omissions from
any Preliminary Prospectus or the Final Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing
by an Underwriter, or by the Representatives on behalf of an
Underwriter, expressly for use in the Preliminary Prospectus or the
Final Prospectus. Each Preliminary Prospectus and the Final Prospectus
delivered to the Underwriters for use in connection with the offering of
the Securities was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T under the 1933 Act Regulations.
(vi) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
Final Prospectus, (A) at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act ("the 1934 Act Regulations"), and (B) at
the time the Registration Statement and any amendments thereto became
effective, at the time any Preliminary Prospectus and the Final
Prospectus were issued, and at the Closing Time, when read together with
the other information in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus, as applicable, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(vii) Accountants. The accountants who audited the annual
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement and the Final Prospectus are
independent public
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accountants with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(viii) Financial Statements. The financial statements and
any supporting schedules included or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, and the Final
Prospectus, present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles which have been consistently applied in all
material respects throughout the periods involved, except as may
otherwise be stated therein and except to the extent that certain
information normally disclosed in financial statements and related notes
may be omitted or condensed in the quarterly financial statements of the
Company and its consolidated subsidiaries if done so pursuant to the
rules and regulations of the SEC. The Company's ratios of earnings to
fixed charges included in any Preliminary Prospectus and the Final
Prospectus under the caption "Ratios of Earnings to Fixed Charges" and
in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and, upon execution
and delivery by or on behalf of the Underwriters, will constitute the
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (the "Bankruptcy Exceptions").
(x) Senior Indenture. The Senior Indenture has been duly and
validly authorized, executed and delivered by the Company; the Senior
Indenture has been duly qualified under the 1939 Act; and, assuming due
authorization, execution and delivery by the Senior Trustee, the Senior
Indenture constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions.
(xi) Senior Securities. The Senior Securities have been duly
and validly authorized by the Company and, when executed by the proper
officers of the Company, and authenticated in accordance with the
provisions of the Senior Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the
Senior Indenture and enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
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the Bankruptcy Exceptions; the Senior Securities are in the form
contemplated by the Senior Indenture.
(xii) Conforming Documents. The Senior Securities and the Senior
Indenture will conform in all material respects to the respective
statements relating thereto contained in any Preliminary Prospectus, the
Final Prospectus and the Registration Statement and will be in
substantially the respective forms filed or incorporated by reference,
as the case may be, as exhibits to the Registration Statement.
(xiii) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any amendment thereto, and the Final Prospectus and except as
may otherwise be stated or contemplated therein, (a) the Company and its
subsidiaries considered as one enterprise have not sustained any
material loss or interference with their business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, (b)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its subsidiaries considered as
one enterprise, except for borrowings under existing revolving credit
agreements and pursuant to the Company's existing commercial paper and
4(2) short-term note program, in each case consistent with past
practices, and the accrual of interest on long-term debt of the
Company's Employee Stock Ownership Plan that is guaranteed by Wisconsin
Public Service Corporation, or any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or other), net worth or results of operations or
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 (c) there has not been any material
transaction entered into by the Company and its subsidiaries considered
as one enterprise, other than transactions in the ordinary course of
business. The Company does not have any material contingent obligations
required to be disclosed in the Registration Statement and Final
Prospectus which are not disclosed therein.
(xiv) No Defaults; Regulatory Compliance. Neither the Company
nor any Significant Subsidiary is in violation of its articles of
incorporation or by-laws or in breach or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in the Indenture or in any other material contract, mortgage,
loan agreement, lease, note or other instrument to which it is a party
or by which it or any of them may be bound or to which any of their
properties may be subject, or any rule, order, law, administrative
regulation or administrative or court order, except to the extent set
forth in the Registration Statement and Final Prospectus.
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(xv) No Conflicts. The execution and delivery of this Agreement
and the Senior Indenture, the issuance, sale and delivery by the Company
of the Senior Securities, the compliance by the Company with the
provisions of this Agreement and the provisions of the Senior Indenture
and Senior Securities, and the use of the proceeds from the sale of the
Senior Securities as described in the Final Prospectus under the caption
"Use of Proceeds" do not and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or by-laws of the Company, any
material contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any Significant
Subsidiary is a party, or by which it or any of them is bound or to
which any of their properties may be subject, or result in the violation
of any law, order, rule, administrative regulation or administrative or
court decree applicable to the Company or any Significant Subsidiary of
any court or of any Federal or state regulatory body or administrative
agency or other governmental body having jurisdiction over the Company
or any Significant Subsidiary or their respective properties; there are
no proceedings, at law or in equity or before any governmental agency or
body, pending, or to the knowledge of the Company threatened, which
affect or may affect any of the transactions contemplated by this
Agreement; and the Company has full power and lawful authority to
authorize, issue and sell the Senior Securities on the terms and
conditions herein set forth.
(xvi) No Consents. No filing with, or consent, approval,
authorization, order, or decree of, any court or governmental authority
or agency is necessary or required for the performance by the Company
of its obligations hereunder or in connection with the offering,
issuance or sale of the Senior Securities hereunder or the consummation
of the transactions contemplated by this Agreement, except such as have
been already obtained or as may be required under the 1933 Act, the 1933
Act Regulations, the 1939 Act, the 1939 Act Regulations or state
securities laws.
(xvii) Public Utility Holding Company Act Compliance. The
Company is not currently required to register as a "holding company"
under the Public Utilities Holding Company Act of 1935, as amended.
(xviii) Legal Proceedings. Except as set forth in the
Registration Statement and Final Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, overtly threatened, against or affecting
the Company or any of its subsidiaries which is required to be disclosed
in the Registration Statement or the Final Prospectus or which might
result in a Material Adverse Effect or adversely affect the consummation
of the transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective property or
assets is the subject which
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are not described in the Registration Statement or the Final Prospectus,
including ordinary routine litigation incidental to the business, would
not, if adversely determined, result in a Material Adverse Effect.
(xix) Exhibits. There are no contracts or other documents of the
Company or any of its subsidiaries which are required to be described in
the Registration Statement, any Preliminary Prospectus, the Final
Prospectus, or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
"\1 4 (xx) Licenses and Authorizations. The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses,
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, except as set forth in or
contemplated in the Registration Statement and Final Prospectus.
(xxi) Restrictions on Dividends. The Final Prospectus (including
the documents incorporated by reference therein) accurately describes
the most restrictive of the existing limitations on the payment of
dividends by WPSC on the shares of common stock of WPSC held by the
Company.
(xxii) Internal Accounting Controls. The Company and each of
its subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxiii) Environmental Compliance. The Company and each of its
subsidiaries are (i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses, and (iii) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance
with
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Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Registration Statement and Final Prospectus.
Except as set forth in the Registration Statement and Final Prospectus,
neither the Company nor any of its subsidiaries has been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, except
in such instances which would not, individually or in the aggregate,
have a Material Adverse Effect.
(xxiv) Year 2000 Compliance. In the case of offerings of
Securities before January 1, 2000, the Company, on behalf of itself and
each of its subsidiaries, has implemented, or caused to be implemented,
a comprehensive, detailed program to analyze and address the risk that
the computer hardware and software used by it may be unable to recognize
and properly execute date-sensitive functions involving certain dates
prior to and any dates after December 31, 1999, and reasonably believe
that such risk will be remedied on a timely basis without material
expense, except as set forth or contemplated in the Registration
Statement and Final Prospectus, and will not have a Material Adverse
Effect.
(xxv) Investment Company Act. The Company is not an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and is not required to register or take any
other action with respect to or under the Investment Company Act by
reason of the issuance of any of the Senior Securities by the Company.
(b) Officer Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries that is delivered to the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters stated therein.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to issue and sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the public
offering price and upon the terms and conditions set forth in Schedule A
hereto the principal amount or number of Senior Securities set forth opposite
such Underwriter's name in Schedule B hereto.
(b) As compensation for their commitments hereunder, the
Company will pay to the Representatives, for the account of the Underwriters,
on the Closing
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Date, an amount equal to the total underwriting commission specified for the
Senior Securities in Schedule A hereto.
(c) Delivery and Payment. Delivery of the Senior Securities
shall be made to the Senior Trustee, as custodian for The Depository Trust
Company ("DTC") in book-entry form. The Company will deliver the Senior
Securities in book-entry form to the Representatives, for the account of each
Underwriter, against payment by and behalf of such Underwriter of a purchase
price equal to the public offering price therefor reflected in Schedule A, as
appropriate. Such delivery shall be made by causing DTC to credit the Senior
Securities to the account of the Representatives at DTC. Payment of the
purchase price shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, issue receipt for, and make payment of the
purchase price for, the Senior Securities which it has agreed to purchase.
The closing of the sale of the Senior Securities shall take place at the
offices of Xxxxx & Xxxxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000 or at such other place as shall be agreed upon by the Company and the
Underwriters, at 9:00 A.M. (central time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriters and the Company (such time
and date being herein called the "Closing Time").
At the Closing Time, the Company will pay, or cause to be paid,
the total underwriting commission payable to the Underwriters at such time
under Section 2(b) to a bank account designated by the Representatives, on
behalf of the Underwriters, by wire transfer of immediately available funds.
If mutually agreed by the Company and the Underwriters, the amount of the
total underwriting commission due to the Underwriters may be offset by the
Underwriters against the amount of the purchase price for the Senior
Securities payable by the Underwriters to the Company pursuant to this
Section 2(a).
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. Immediately following the execution of this Agreement, the Company
will prepare a Final Prospectus setting forth the principal amount of Senior
Securities covered thereby and their terms, the names of the Underwriters and
the principal amount of Senior Securities which each severally has agreed to
purchase, the names of the Representatives, the price at which the Senior
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 Representatives and the Company deem
appropriate in connection with the offering of the Senior Securities.
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The Company will promptly transmit copies of the Final Prospectus to the
Commission for filing pursuant to Rule 424 of the 1933 Act and will furnish
to the Underwriters named therein as many copies of the Final Prospectus and
any Preliminary Prospectus as such Underwriters shall reasonably request.
(b) Amendments. The Company will notify the Representatives
immediately, and promptly confirm the notice in writing, (i) when any post-
effective amendment to the Registration Statement shall become effective, or
(ii) of the mailing or the delivery to the Commission for filing, after the
date of this Agreement and prior to the Closing Date, of any supplement to
the Final Prospectus or any document to be filed pursuant to the 1934 Act
which will be incorporated by reference into the Registration Statement or
Final Prospectus, (iii) of the receipt of any comments or other
communications from the Commission with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus or for
additional information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement of any order
preventing or suspending the use of any Preliminary Prospectus, or of the
suspension of the qualification of the Senior Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424 (b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. 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.
The Company will give the Underwriters notice of its intention to file
or prepare any amendment to the Registration Statement or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Final Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file
or use any such document (excluding documents incorporated by reference in
the Registration Statement) to which the Underwriters or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, such number of signed and conformed copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts. The
12
copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will furnish to each
Underwriter, without charge, during the period when the Final Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Final Prospectus (as amended or supplemented following the date
of this Agreement) as such Underwriter may reasonably request. The Final
Prospectus (and any amendments or supplements thereto following the date of
this Agreement) furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Senior Securities as contemplated in this Agreement and
in the Final Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Senior Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement or amend or supplement the Final
Prospectus in order that the Final Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Final Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or
the Final Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its
reasonable best efforts, in cooperation with the Underwriters, to qualify
the Senior Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriters may designate
and to maintain such qualifications in effect for as long as may be necessary
to complete the distribution of the Senior Securities; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as
13
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) Use of Proceeds. The Company will use the proceeds
received by it from the sale of the Senior Securities in the manner specified
in the Final Prospectus under "Use of Proceeds."
(i) Restriction on Sale of Senior Securities. For the period
beginning on the date of this Agreement and ending on the date specified in
Schedule A , the Company will not, without the Representatives' prior written
consent, directly or indirectly, sell, offer to sell, grant any option for
the sale of, enter into an agreement to sell, or otherwise dispose of, any
Senior Securities or securities similar to the Senior Securities, or any
securities convertible into or exchangeable or exercisable for the Senior
Securities or any such similar securities, except for Senior Securities sold
pursuant to this Agreement, and the Company will not file a registration
statement under the 1933 Act with respect to any such securities or
securities similar to such securities of the Company held by others.
(j) Reporting Requirements. The Company, during the period
when the Final Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of the Company's obligations under
this Agreement, including, but not limited to, (i) the preparation,
reproduction and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto,
(ii) the preparation, issuance and delivery of the certificates for the
Senior Securities to DTC or the Underwriters, including any transfer taxes
and any stamp or other duties payable upon the sale, issuance, or delivery of
the Senior Securities, (iii) any fees charged by Standard & Poor's Ratings
Services ("S&P") or Xxxxx'x Investors Services, Inc. ("Moody's") or any other
nationally recognized securities rating agency (each, a "Rating Agency") for
rating the Senior Securities, (iv) the qualification of the Senior Securities
under securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey, if any, and any supplement thereto,
(v) the printing and delivery to the Underwriters of copies of each
Preliminary Prospectus, the Final Prospectus, and any amendments or
supplements thereto, (vi) the preparation, reproduction and delivery to the
Underwriters of copies of the Blue Sky Survey, if any, and any supplement
thereto, (vii) the fees and expenses of any transfer agent or registrar for
the Senior Securities, (viii) the fees and expenses of the Senior Trustee,
including the fees and reimbursements of counsel for the Senior Trustee in
connection with the Indenture, and (ix) the cost of qualifying the Senior
Securities with DTC.
14
(b) Termination of Agreement. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 5 or Section
10(b) hereof, the Company shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company or any subsidiary delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Final
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the 1933 Act
Regulations, and no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission.
(b) Opinion of Counsel for the Company. At Closing Time, the
Underwriters shall have received 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 set forth in
Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx Xxxxxx & Xxxxx, counsel for the Underwriters, with respect to
the validity of the Senior Securities, the Registration Statement, the Final
Prospectus and other related matters as the Underwriters may reasonably
request (it being understood that such counsel may rely as to all matters of
Wisconsin law and legal conclusions based thereon upon the opinion of counsel
for the Company referred to in Section 5(b). Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) Officer Certificates. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Final Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Underwriters shall have received certificates of the President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that
(A) there has been no such material adverse change, (B) the representations
and warranties in
15
Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (C) the Company
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (D) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or,
to the best knowledge of the Company, are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Xxxxxx Xxxxxxxx
LLP a letter, dated as of the date hereof, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
applicable 1933 Act Regulations;
(ii) in their opinion, the audited consolidated financial
statements and financial statement schedule(s) incorporated by reference
in the Registration Statement and the Final Prospectus and included in
the Company's most recent Annual Report on Form 10-K (the "Form 10-K")
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the
0000 Xxx and the applicable 1934 Act Regulations;
(iii) on the basis of (A) the performance of procedures specified
by the American Institute of Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards
No. 71, Interim Financial Information, on the unaudited consolidated
balance sheets, the unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated statements of cash
flows, of the Company and its subsidiaries included in the Company and
WPSC's quarterly reports on Form 10-Q filed with the Commission under
Section 13 of the 1934 Act (the "Form 10-Q's") subsequent to the Form
10-K, (B) a reading of the latest available unaudited financial
statements of the Company and its subsidiaries, (C) a reading of the
minutes of the Annual Meeting of Shareholders and the latest minutes of
meetings of the Board of Directors of the Company as set forth in the
minute books for the current year, and (D) inquiries of the officers of
the Company who have responsibility for financial and accounting matters
(it being understood that the foregoing procedures do not constitute an
audit made in accordance with generally accepted accounting procedures
and would not necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that Xxxxxx Xxxxxxxx
LLP makes no representation as to the sufficiency of such procedures for
the purposes of the several Underwriters), nothing has come to their
attention which caused them to believe that (1) any material
modifications should be made to the unaudited consolidated
16
financial statements included in the Form 10-Q's for them to be in
conformity with generally accepted accounting procedures; (2) the
unaudited consolidated financial statements included in the Form
10-Q's do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934 Act
Regulations, as they apply to Form 10-Q, or (3) at the date of the
latest available consolidated financial statements and at a specified
date not more than three business days prior to the date of such
letter, there was any change in the consolidated capital stock or
increase in the consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net assets or
shareholders' equity of the Company, in each case as compared with the
amounts shown in the most recent consolidated balance sheet of the
Company incorporated by reference into the Registration Statement and
the Final Prospectus or, during the period from the date of such
balance sheet to a specified date not more than three business days
prior to the date of such letter, based upon inquiries of the
appropriate officers of the Company, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated operating revenues, consolidated net income or
earnings per share, except in each case as set forth in or contemplated
by the Registration Statement and the Final Prospectus or except for
such exceptions enumerated in such letter as shall have been agreed to
by the Underwriters and the Company; and
(iv) in addition to the audits referred to in their report
appearing in the Form 10-K incorporated by reference in the Registration
Statement and the Final Prospectus, and the limited procedures referred
to in clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
percentages, and financial information which are included or
incorporated by reference in the Registration Statement and the Final
Prospectus and which are specified by the Underwriters, and have found
such amounts, percentages, and financial information to be in agreement
with the relevant accounting, financial and other records of the Company
and its subsidiaries identified in such letter.
(f) Bring-down Comfort Letter. At Closing Time, the
Underwriters shall have received from Xxxxxx Xxxxxxxx LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three calendar days
prior to Closing Time.
(g) Maintenance of Rating. Since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Senior Securities or any of the other securities of the Company or WPSC by
S&P or Moody's, and neither S&P or Moody's shall have publicly announced that
it has under surveillance or review its rating of the Senior Securities or
any of the Company's or WPSC's other securities.
17
(h) Execution of Agreements. The Senior Indenture shall have
been executed and delivered, in each case in a form reasonably satisfactory
to the Underwriters.
(i) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Senior Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Senior
Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and their counsel.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives, on behalf of the Underwriters, by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus or the Final
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that any such
settlement is effected with the written consent of the Company; and
18
(iii) against any and all expense whatsoever (including 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, at the time that such expense is incurred, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in
the Registration Statement (or any amendment or supplement thereto) or the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus (or any
amendment or supplement thereto); and provided further, that the foregoing
indemnity with respect to any untrue statement or omission from a Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting such loss,
liability, claim, damage or expense purchased any of the Senior Securities
that are the subject thereof if the Company shall sustain the burden of
proving that: (i) the untrue statement or omission contained in the
Preliminary Prospectus (excluding documents incorporated by reference) was
corrected, (ii) such person was not sent or given a copy of the Final
Prospectus (excluding documents incorporated by reference) which corrected
the untrue statement or omission at or prior to the written confirmation of
the sale of the Senior Securities to such person if required by applicable
law, and (iii) the Company satisfied its obligation to provide a sufficient
number of copies of the Final Prospectus to such Underwriter.
(b) Indemnification of Company, Officers and Directors. Each
Underwriter severally agrees to indemnify and hold harmless the Company, the
Company's directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any Preliminary Prospectus or the Final 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 in such Preliminary Prospectus or the Final Prospectus
(or any amendment or supplement thereto).
19
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company, in each case reasonably acceptable
to the indemnifying party. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim, and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand from
the offering of the Senior Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
20
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Senior
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Senior Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting commission received by the
Underwriters, in each case as set forth on the cover of the Final Prospectus,
bear to the aggregate initial public offering price of the Senior Securities
as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Senior Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company,
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the
21
Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries 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 Senior Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT
(a) Termination; General. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to the
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in
the Final Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States,
any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Wisconsin authorities, or (iv) if the ratings
assigned by any Rating Agency to the Senior Securities or any other debt
securities of the Company shall have been lowered since the date of this
Agreement or if any such Rating Agency shall have publicly announced that it
has placed under surveillance or review, with possible negative implications,
its rating of the Senior Securities or any other debt securities of the
Company.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
22
SECTION 10. DEFAULT BY ONE OR MORE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Senior Securities
(other than for some reason to justify, in accordance with the provisions
hereof, the cancellation or termination of its or their obligations
hereunder) which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), 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; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period, then:
(a) if the amount of Defaulted Securities does not exceed 10%
of the aggregate amount of Senior Securities to be purchased on such date,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the
aggregate amount of Senior Securities to be purchased on such date, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either 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 Final
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to X.X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, attention Xxxxxx X. Xxxxxxxx,
and notices to the Company shall be directed to it at 000 Xxxxx Xxxxx Xxxxxx,
P. O. Xxx 00000, Xxxxx Xxx, Xxxxxxxxx 00000, attention Xxxxx X. Xxxxxx.
SECTION 12. PARTIES. This Agreement shall 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, officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be
23
for the sole and exclusive benefit of the Underwriters and the Company and
their respective successors, and said controlling persons, officers and
directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Senior Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO CENTRAL TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 15. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
24
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 between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXXX & SONS, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: X.X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director/Vice President
25
SCHEDULE A
SENIOR SECURITIES
Underwriting Agreement dated November 9, 1999
Trustee: Firstar Bank, National Association
Title, Purchase Price and Description of Debt Securities:
Title: 7.00% Senior Notes Due November 1, 2009
Principal amount: $150,000,000
Interest rate: 7.00%
Interest payable: May 1 and November 1
Commencing: May 1, 2000
Date of maturity: November 1, 2009
Public offering price: $996.08
Per Debt Security: $996.08
Total: $149,412,000
Underwriting Commission:
Per Debt Security: $6.50
Total: $975,000
Form of payment: Wire transfer in immediately available funds
Form of Securities: book-entry only
Redemption provisions: The Senior Securities will be redeemable at the
option of the Company in whole at any time or in
part from time to time at a price equal to the
greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the
remaining scheduled payments of principal and
interest thereon discounted to the date of
redemption on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months)
at the Treasury Yield as defined in the Final
Prospectus and in the First Supplemental
Indenture dated as of November 1, 1999 to the
Indenture dated as of October 1, 1999 from the
Company to Firstar Bank, National Association
(the "Supplemental Senior Indenture") plus .20
basis points, plus in each case accrued interest
to the date of redemption.
Sinking fund requirements: None
26
Lockup provisions: Until November 15, 1999
Other provisions: None
Other Provisions of or Amendments to Underwriting Agreement:
Securities Closing Date, Time and Location: November 15, 1999 at 9:00 a.m.
Xxxxx & Xxxxxxx
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Modification of items to be covered by the letter from Xxxxxx Xxxxxxxx LLP
delivered pursuant to Section 5(e):
27
SCHEDULE B
SENIOR SECURITIES
Name of Underwriters Amount
-------------------- ------
X.X. Xxxxxxx & Sons, Inc.....................................$75,000,000
-----------
Xxxxxx X. Xxxxx & Co. Incorporated...........................$37,500,000
-----------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.........................$37,500,000
-----------
Total $ 150,000,000
=============
1
EXHIBIT A
Form of Opinion of Company's Counsel
(To Be Delivered pursuant to Section 5(b))
(i) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Wisconsin; based solely on a
certificate of the Department of Financial Institutions of the State of
Wisconsin, the Company has filed its most recent required annual report and,
as of the date specified in such certificate, (a) the Company has not filed
articles of dissolution with the Department of Financial Institutions of the
State of Wisconsin, and (b) the Department of Financial Institutions of the
State of Wisconsin has not commenced proceedings for the dissolution of the
Company and has made no determination that grounds exist for such action
against the Company.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Final Prospectus.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business
requires such qualification and in which the failure of the Company to be so
qualified and in good standing would have a Material Adverse Effect.
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation 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 Registration Statement and the Prospectus.
(v) All of the issued and outstanding common stock of each
Significant Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, except with respect to wage claims of
employees of such Significant Subsidiary as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as such statutory
provision has been judicially interpreted; the Company is the owner of record
of all of the common stock of each Significant Subsidiary, directly or
through subsidiaries.
(vi) This Agreement has been duly and validly authorized, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
the enforcement of creditors' rights generally or by general equity
principles and except that no opinion as to enforceability need be expressed
as to rights to indemnification and contribution provided in Section 6 and 7
of this Agreement or clauses concerning agreements to agree.
2
(vii) The Indenture has been duly and validly authorized, executed and
delivered by the Company; the Indenture has been duly qualified under the
1939 Act; and, assuming due authorization, execution and delivery by the
Trustee, the Indenture constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by the Bankruptcy Exceptions.
(viii) The Senior Securities have been duly and validly authorized
by the Company and, when executed by the proper officers of the Company, and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will in each case constitute valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company
in accordance with their terms, except as enforcement thereof may be limited
by the Bankruptcy Exceptions; the Senior Securities are in the form
contemplated by the Indenture.
(ix) The Senior Securities and the Senior Indenture conform in all
material respects to the respective statements relating thereto contained in
the Final Prospectus and the Registration Statement.
(x) The Registration Statement is effective under the 1933 Act and,
to the best of such counsel's knowledge, 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 SEC.
(xi) The Registration Statement, on its effective date, and the Final
Prospectus, as of the date hereof (other than in each case financial
statements and other financial or statistical data included or incorporated
by reference therein and the Form T-1, as to which no opinion need be
rendered) complied or comply as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act, and the
1939 Act Regulations.
(xii) To the best of such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Registration
Statement and the Final Prospectus or to be filed as exhibits to the
Registration Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
(xiii) Each document incorporated by reference into the
Registration Statement or the Final Prospectus complied as to form, when
filed, in all material respects with the 1934 Act and the 1934 Act
Regulations.
3
(xiv) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Final Prospectus, other than those that are disclosed
therein.
(xv) To the best of such counsel's knowledge and information, neither
the Company nor any Significant Subsidiary is in violation of its articles of
incorporation or by-laws or in breach or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in the applicable Indenture, if any, or any other material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any Significant Subsidiary is a party or
by which it or any of them or their properties may be bound.
(xvi) No filing, consent, approval, authorization, order, or decree of
any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except (A) such as have been obtained under the 1933 Act, the 1933
Act Regulations, the 1939 Act or the 1939 Act Regulations, and (B) such as
may be required under state securities or blue sky laws.
(xvii) To the best of such counsel's knowledge and information, the
execution and delivery of this Agreement and the Senior Indenture, the
issuance, sale and delivery by the Company of the Senior Securities, and the
compliance by the Company with the provisions of this Agreement and the
provisions of the Senior Indenture and Senior Securities do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the articles of incorporation or by-laws of the
Company, any material contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or any
Significant Subsidiary is a party, or by which it or any of them is bound or
to which any of their properties may be subject, or result in the violation
of any law, order, rule, administrative regulation or administrative or court
decree applicable to the Company or any Significant Subsidiary of any court
or of any Federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or any Significant
Subsidiary or their respective properties; there are no proceedings, at law
or in equity or before any governmental agency or body, pending, or to the
knowledge of the Company threatened, which affect or may affect any of the
transactions contemplated by this Agreement; and the Company has full power
and lawful authority to authorize, issue and sell the Senior Securities on
the terms and conditions herein set forth.
(xviii) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and is not required to be registered
thereunder.
(xix) The Company and its Subsidiaries have statutory authority,
franchises, permits, easements and consents adequate to conduct the
businesses in which they
4
are respectively engaged without legal restrictions that would materially
affect their ability to so conduct such business.
In giving such opinion, such counsel shall additionally state that
nothing has come to its attention that would lead it to believe that the
Registration Statement, as of its effective date and the Closing Date,
contained an untrue statement of material fact or omitted to state a material
fact necessary to be stated therein in order to make the statements therein
not misleading, or that the Final Prospectus, as of its issue date and the
Closing Date, contains any untrue statement of a material fact 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.
Such counsel need not render an opinion with respect to financial statements
and other financial or statistical data included or incorporated by reference
in the Registration Statement or the Final Prospectus or as to any Form T-1.
5
