Exhibit 1(a)
MP&L CAPITAL I
_____% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
(QUIPSSM)*
(LIQUIDATION PREFERENCE $25.00 PER PREFERRED SECURITY)
____________
UNDERWRITING AGREEMENT
----------------------
March __, 1996
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
PaineWebber Incorporated
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MP&L Capital I, a Delaware statutory business trust ("MP&L
Capital"), and Minnesota Power & Light Company, a Minnesota
corporation (the "Company"), as depositor of MP&L Capital and as
guarantor, propose, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") an aggregate of _______ of the
Preferred Securities specified above (each a "Security" and
collectively the "Securities") representing undivided preferred
beneficial interests in the assets of MP&L Capital, guaranteed on
a subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation or redemption,
to the extent set forth in a guarantee agreement (the
"Guarantee") between the Company and The Bank of New York, as
trustee (the "Guarantee Trustee"). MP&L Capital is to invest the
proceeds of the sale of the Securities and _______ of its Common
Securities (liquidation amount $25 per common security) (the
"Common Securities") in _____% Junior Subordinated Debentures,
Series ___, Due _________, ____ (the "Junior Subordinated
Debentures") to be issued pursuant to an Indenture (the
"Indenture") between the Company and The Bank of New York, as
trustee (the "Debenture Trustee").
1. Each of MP&L Capital and the Company, jointly and
severally, represents and warrants to, and agrees with, each of
the Underwriters that:
--------------------
* QUIPS is a servicemark of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(a) A registration statement on Form S-3 (File Nos.
333-01035 and 333-01035-01) in respect of the Securities, the
Expense Agreement (as defined herein), the Guarantee and the
Junior Subordinated Debentures (collectively, the "Registered
Securities") has been filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933,
as amended (the "Act"); such registration statement, as amended
by any amendment thereto, and any post-effective amendment
thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared
effective by the Commission in such form; no other document with
respect to such registration statement, as amended by any
amendment thereto, or document incorporated by reference therein
has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of such registration statement, as
amended by any amendment thereto, has been issued and no
proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in such
registration statement, as amended by any amendment thereto, or
filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act is hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement, as amended by any amendment thereto,
including all exhibits thereto but excluding Form T-1 and
including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the
registration statement at the time it was declared effective and
(ii) the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of
the registration statement became effective, each as amended at
the time such part of the registration statement became
effective, is hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, and
did 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; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to MP&L Capital and the
Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly
for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and such documents taken together as a whole did 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; and any further documents
so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and taken together with
all other documents incorporated by reference will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to MP&L Capital or the Company
by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein;
(d) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "TIA") and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto, and as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to MP&L
Capital or the Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. expressly for use therein;
(e) Neither MP&L Capital nor the Company and its
subsidiaries, taken together as a whole, has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus;
since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been
any change in the capital stock (other than shares issued under
the Company's Automatic Dividend Reinvestment and Stock Purchase
Plan, the Minnesota Power and Affiliated Companies Employee Stock
Purchase Plan or any compensation plan disclosed in the Company's
Proxy Statement with respect to the Company's 1995 Annual Meeting
of Shareholders (collectively, the "Stock Purchase and
Compensation Plans")) or long-term debt of the Company and its
subsidiaries, taken together as a whole, in excess of
$20,000,000, or any material adverse change, or any development
involving, so far as the Company can now reasonably force, a
prospective material adverse change, in or affecting the business,
management, financial position, common and preferred stock equity
or results of operations of MP&L Capital or the Company and its
subsidiaries, taken together as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(f) The Company and its Material Subsidiaries (as
defined below) have good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to
be made of such property by the Company and its Material
Subsidiaries; and any real property and buildings held under
lease by the Company and its Material Subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by
the Company and its subsidiaries (as used in this Agreement, the
term "Material Subsidiary" means a significant subsidiary under
Rule 1-02(w) of Regulation S-X of the Commission);
(g) MP&L Capital has been duly created and is validly
existing as a statutory business trust in good standing under the
Business Trust Act of the State of Delaware (the "Delaware
Business Trust Act") with the power and authority (trust and
other) to own property and conduct its business as described in
the Prospectus, and has conducted and will conduct no business
other than the transactions contemplated by this Agreement and
described in the Prospectus; MP&L Capital is not a party to or
bound by any agreement or instrument other than this Agreement,
the trust agreement (as amended and restated from time to time,
the "Trust Agreement") between the Company and the trustees named
therein (the "Trustees") and the agreements and instruments
contemplated by the Trust Agreement and described in the
Prospectus; MP&L Capital has no liabilities or obligations other
than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the
Prospectus; and MP&L Capital is not a party to or subject to any
action, suit or proceeding of any nature;
(h) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of Minnesota, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and there is no jurisdiction wherein the character of
the properties owned or held under lease by the Company or the
nature of the business transacted by the Company would expose the
Company to any material liability or disability by reason of the
failure to qualify the Company as a foreign corporation in any
such jurisdiction; and each Material Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation, and there is no jurisdiction wherein the
character of the properties owned or held under lease by any
Material Subsidiary or the nature of the business transacted by
such Material Subsidiary would expose such Material Subsidiary to
any material liability or disability by reason of the failure to
qualify such Material Subsidiary as a foreign corporation in any
such jurisdiction;
(i) The Company has the authorized equity capital as
set forth in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(j) The Securities have been duly and validly
authorized by MP&L Capital, and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of MP&L Capital and will
conform to the description thereof contained in the Prospectus;
the issuance of the Securities is not subject to preemptive or
other similar rights; the Securities will have the rights set
forth in the Trust Agreement, and the terms of the Securities are
valid and binding on MP&L Capital; the holders of the Securities
(the "Securityholders") will be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware;
(k) The Common Securities have been duly and validly
authorized by MP&L Capital, and, when delivered to the Company by
MP&L Capital against payment therefor as provided in the
Prospectus, will be duly and validly issued undivided beneficial
interests in the assets of MP&L Capital and will conform to the
description thereof contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or other
similar rights;and at the Time of Delivery (as defined in Section
4 hereof), all of the issued and outstanding Common Securities of
MP&L Capital will be directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims; and the
Common Securities and the Securities are the only interests
authorized to be issued by MP&L Capital;
(l) The Company has filed a Petition for Certification
of Capital Structure with the Minnesota Public Utilities
Commission ("Minnesota Commission") pursuant to the Minnesota
Public Utilities Act with respect to the issuance and sale by the
Company of the Junior Subordinated Debentures and the Guarantee.
The Minnesota Commission has entered an authorizing order (the
"Authorizing Order") approving the capital structure including
the issuance and sale of the Junior Subordinated Debentures and
the Guarantee;
(m) The Guarantee, the Junior Subordinated Debentures,
the Trust Agreement, the Agreement as to Expenses and Liabilities
between the Company and MP&L Capital (the "Expense Agreement")
and the Indenture (collectively, the "Company Agreements") have
each been duly authorized and when validly executed and delivered
by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Debenture
Trustee, and, in the case of the Junior Subordinated Debentures,
when validly authenticated and delivered by the Debenture
Trustee, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (whether considered at a proceeding in
equity or at law); the Trust Agreement, the Indenture and the
Guarantee have been duly qualified under the TIA; the Junior
Subordinated Debentures are entitled to the benefits of the
Indenture; and the Company Agreements will conform to the
descriptions thereof in the Prospectus;
(n) The issue and sale of the Securities and the
Common Securities by MP&L Capital, the compliance by MP&L Capital
with all of the provisions of this Agreement, the purchase of the
Junior Subordinated Debentures by MP&L Capital, the distribution
of the Junior Subordinated Debentures by MP&L Capital in the
circumstances contemplated by the Trust Agreement and the
consummation of the transactions contemplated herein and in the
Trust Agreement will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any agreement or instrument to which MP&L Capital
is a party or by which MP&L Capital is bound or to which any of
the property or assets of MP&L Capital is subject, nor will such
actions result in any violation of the provisions of the Trust
Agreement or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over
MP&L Capital or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
issue and sale of the Securities and the Common Securities by
MP&L Capital, the purchase of the Junior Subordinated Debentures
by MP&L Capital or the consummation by MP&L Capital of the
transactions contemplated by this Agreement and the Trust
Agreement, except the registration under the Act and the Exchange
Act of the Registered Securities, the qualification of the Trust
Agreement, the Indenture and the Guarantee under the TIA, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(o) The issue and sale of the Securities and the
Common Securities by MP&L Capital, the issuance by the Company of
the Guarantee, the compliance by the Company and MP&L Capital
with all of the provisions of this Agreement, the execution,
delivery and performance by the Company of the Company
Agreements, the distribution of the Junior Subordinated
Debentures by MP&L Capital in the circumstances contemplated by
the Trust Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries
is subject except for such conflict, breach, violation or default
which does not have a material adverse effect on the business,
management, financial position, common and preferred stock equity
or results of operations of the Company and its subsidiaries,
taken together as a whole (hereinafter, a "Material Adverse
Effect"), nor will such action require a consent or approval of
any holder of the Company's capital stock or result in any
violation of the provisions of the Articles of Incorporation or
By-laws of the Company or the charter or by-laws or any other
organizational document of any of its Material Subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company
or any of its Material Subsidiaries or any of their respective
properties;
(p) No consent, approval, authorization or order of,
or any filing or declaration with, any court or governmental
agency or body is required for the issue of the Guarantee, the
issuance and sale of the Junior Subordinated Debentures, the
distribution of the Junior Subordinated Debentures by MP&L
Capital in the circumstances contemplated by the Trust Agreement
or the consummation by the Company of the other transactions
contemplated by this Agreement and the Company Agreements, except
the registration under the Act of the Registered Securities and
the qualification of the Trust Agreement, the Indenture and the
Guarantee under the TIA, the entry of the Authorizing Order of
the Minnesota Commission, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase of the Securities and distribution of the
Securities by the Underwriters;
(q) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject,
which, if determined adversely to the Company or any of its
subsidiaries would individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(r) There are no legal or governmental proceedings
pending to which MP&L Capital is a party or to which any property
of MP&L Capital is subject; and, to the best of MP&L Capital's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(s) Neither MP&L Capital nor the Company is nor, after
giving effect to the offering and sale of the Securities, will be
an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
and
(t) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes.
2. Subject to the terms and conditions herein set forth,
MP&L Capital and the Company agree that MP&L Capital will issue
and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
MP&L Capital, at a purchase price of $25 per Security, the number
of the Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
As compensation to the Underwriters for their commitments
hereunder, and in view of the fact that the proceeds from the
sale of the Securities will be used by MP&L Capital to purchase
the Junior Subordinated Debentures of the Company, the Company at
the Time of Delivery will pay by wire transfer of federal (same
day) funds to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the accounts of the
several Underwriters, an amount equal to $_________ per Security
to be delivered by the Company hereunder at the Time of Delivery.
3. Upon the authorization by you of the release of the
Securities, the several Underwriters propose to offer the
Securities for sale upon the terms and conditions set forth in
the Prospectus.
4. (a) The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive
global Securities in book-entry form which will be deposited
by or on behalf of MP&L Capital with The Depository Trust
Company ("DTC") or its designated custodian. MP&L Capital
will deliver the Securities to ▇▇▇▇▇▇▇, Sachs & Co., for the
account of each Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor by wire
transfer, payable to the order of MP&L Capital in federal
(same day) funds, by causing DTC to credit the Securities to
the account of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at DTC. MP&L Capital
will cause the certificates representing the Securities to
be made available to ▇▇▇▇▇▇▇, Sachs & Co. for checking at
least twenty-four hours prior to the Time of Delivery (as
defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of
such delivery and payment shall be 10:00 a.m., New York City
time, on March __, 1996, or such other time and date as
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may agree upon in
writing. Such time and date are herein called the "Time of
Delivery".
(b) The documents to be delivered at the Time of
Delivery by or on behalf of the parties hereto pursuant to
Section 7 hereof, including the cross-receipt for the
Securities and any additional documents requested by the
Underwriters pursuant to Section 7(i) hereof will be
delivered at the offices of ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Closing Location"), and the
Securities will be delivered at the Designated Office, all
at the Time of Delivery. A meeting will be held at the
Closing Location at 2:00 p.m., New York City time, on the
New York Business Day next preceding the Time of Delivery,
at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive
order to close.
5. MP&L Capital and the Company, jointly and severally,
agree with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably
approved by you, and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus prior
to the Time of Delivery which shall be reasonably
disapproved by you promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; in the case of the Company,
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of
the qualification of the Registered Securities for offering
or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as
you may reasonably request to qualify the Registered
Securities for offering and sale under the securities laws
of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities,
provided that in connection therewith neither MP&L Capital
nor the Company shall be required to qualify as a foreign
corporation or to file a general consent to service of
process in any jurisdiction;
(c) To use its best efforts to furnish the
Underwriters, prior to 10:00 a.m., New York City time, on
the New York Business Day next succeeding the date of this
Agreement and from time to time, with copies of the
Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with
the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act,
the Exchange Act or the TIA, to notify you and upon your
reasonable request to file such amendment or supplement or
document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies
as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
(d) In the case of the Company, to make generally
available to its shareholders as soon as practicable, but in
any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof
and continuing to and including the earlier of (i) the date,
after the Time of Delivery, on which the distribution of the
Securities ceases, as determined by you, and (ii) 90 days
after the Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of, any other beneficial interests
in MP&L Capital, or any other securities of MP&L Capital or
the Company, as the case may be, that are substantially
similar to the Securities (including any guarantee of such
Securities) or any securities that are convertible into or
exchangeable for, or that represent the right to receive,
any such substantially similar securities of either MP&L
Capital or the Company, without the prior written consent of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.; provided that this subclause (e) shall
specifically not apply to the Company's common stock,
preferred stock, secured indebtedness and unsecured
indebtedness which is not subordinated;
(f) During a period of two years from the effective
date of the Registration Statement, to furnish to you upon
your request copies of all reports or other communications
(financial or other) furnished to shareholders of the
Company, and to deliver to you upon your request as soon as
they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which any class of
securities of MP&L Capital or the Company is listed;
(g) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Securities as
contemplated herein;
(h) To use the net proceeds received by it from the
sale of the Securities pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(i) To use its best efforts to list, subject to notice
of issuance, the Securities on the New York Stock Exchange.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the
registration of the Registered Securities under the Act and all
other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, the Trust
Agreement, the Guarantee, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and
delivery of the Registered Securities; (iii) all expenses in
connection with the qualification of the Registered Securities
for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees (not to exceed $10,000)
and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky
Survey; (iv) any fees charged by securities rating services for
rating the Securities; (v) all fees and expenses in connection
with listing the Securities on the New York Stock Exchange and
the cost of registering the Securities under Section 12 of the
Exchange Act; the cost of preparing certificates for the
Securities and Junior Subordinated Debentures; (vii) the cost and
charges of any transfer agent or registrar; (viii) the cost and
charges of qualifying the Securities with DTC; (ix) the fees and
expenses of the Trustees, the Debenture Trustee and the Guarantee
Trustee and any agent thereof and the fees and disbursements of
their counsel; and (x) all other costs and expenses incident to
the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their
counsel, stock transfer taxes on resale of any of the Securities
by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all
representations and warranties and other statements of MP&L
Capital and the Company herein are, at and as of the Time of
Delivery, true and correct, the condition that MP&L Capital and
the Company shall have performed all of their respective
obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all
requests for additional information on the part of the
Commission shall have been complied with to your reasonable
satisfaction;
(b) Lane & ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to you such opinion or
opinions (a draft of each such opinion is attached as Annex
II(a) hereto), dated the Time of Delivery, with respect to
the formation of MP&L Capital, insofar as the federal laws
of the United States and the laws of the State of New York
or the State of Delaware are concerned; the validity of the
Registered Securities, the Registration Statement and the
Prospectus; and other related matters as you may reasonably
request, and such counsel shall have received such papers
and information as they may reasonably request to enable
them to pass upon such matters; provided that in rendering
such opinion, Lane & ▇▇▇▇▇▇▇▇▇▇ LLP may rely on the opinion
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger delivered pursuant to
subsection (e) hereof as to matters of Delaware law relating
to statutory business trusts;
(c) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., general counsel of the
Company, shall have furnished to you his written opinion (a
draft of such opinion is attached as Annex II(b) hereto) (in
rendering such opinion, such counsel may rely on the opinion
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger delivered pursuant to
subsection (e) hereof as to matters of Delaware law relating
to statutory business trusts), dated the Time of Delivery,
in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Minnesota with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company is a public utility corporation
duly authorized by its Articles of Incorporation to conduct
the business which it is now conducting as set forth in the
Prospectus and the Company holds valid and subsisting
franchises, licenses and permits authorizing it to carry on
the utility business in which it is engaged;
(iii) The Company has the authorized equity
capital as set forth in the Prospectus; and the Securities
conform to the description of the Securities contained in
the Prospectus;
(iv) There is no jurisdiction wherein the
character of the properties owned or held under lease by the
Company or the nature of the business transacted by the
Company would expose the Company to any material liability
or disability by reason of the failure to qualify the
Company as a foreign corporation in any such jurisdiction;
(such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of
the Company, provided that such counsel shall state that
such counsel believes that both you and such counsel are
justified in relying upon such opinions and certificates);
(v) Each Material Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, and there is no jurisdiction
wherein the character of the properties owned or held under
lease by any Material Subsidiary or the nature of the
business transacted by such Material Subsidiary would expose
such Material Subsidiary to any material liability or
disability by reason of the failure to qualify such Material
Subsidiary as a foreign corporation in any such
jurisdiction; and other than as set forth in the Prospectus
all of the issued shares of capital stock of each such
subsidiary are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel
and in respect to matters of fact upon certificates of
officers of the Company or its subsidiaries; provided that
such counsel shall state that such counsel believes that
both you and such counsel are justified in relying upon such
opinions and certificates);
(vi) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or
any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best
of such counsel's knowledge, no such proceedings are
threatened or overtly contemplated by governmental
authorities or threatened by others;
(vii) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending to
which MP&L Capital is a party or of which any property of
MP&L Capital is the subject; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
overtly contemplated by governmental authorities or
threatened others;
(viii) This Agreement has been duly authorized,
executed and delivered by each of MP&L Capital and the
Company;
(ix) The Company Agreements have each been duly
authorized, executed and delivered by the Company and each
of the Company Agreements constitutes a valid and legally
binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equitable principles (whether considered at a
proceeding in equity or at law); the Junior Subordinated
Debentures are entitled to the benefits provided by the
Indenture;
(x) The issue and sale of the Securities and the
Common Securities by MP&L Capital, the issuance by the
Company of the Guarantee and the Junior Subordinated
Debentures, the compliance by the Company and MP&L Capital
with all of the provisions of this Agreement, the execution,
delivery and performance by the Company of the Company
Agreements, the distribution of the Junior Subordinated
Debentures by MP&L Capital in the circumstances contemplated
by the Trust Agreement and the consummation of the
transactions herein and therein contemplated will not (i)
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject except for such conflict,
breach, violation or default which does not have a Material
Adverse Effect, nor (ii) will such action result in any
violation of the provisions of the Articles of Incorporation
or By-laws of the Company or any statute or any order, rule
or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its Material Subsidiaries or any of their
respective properties;
(xi) The issue and sale of the Securities and the
Common Securities by MP&L Capital, the compliance by MP&L
Capital with all of the provisions of this Agreement, the
purchase of the Junior Subordinated Debentures by MP&L
Capital, the distribution of the Junior Subordinated
Debentures by MP&L Capital in the circumstances contemplated
by the Trust Agreement and the consummation of the
transactions contemplated herein and in the Trust Agreement
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any agreement or instrument to which MP&L Capital is
a party or by which MP&L Capital is bound or to which any of
the property or assets of MP&L Capital is subject, nor will
such action result in any violation of the provisions of the
Trust Agreement or any statute or any order, rule or
regulation of any court or governmental agency or body
having jurisdiction over MP&L Capital or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Securities and the Common Securities by MP&L
Capital, the purchase of the Junior Subordinated Debentures
by MP&L Capital or the consummation by MP&L Capital of the
transactions contemplated by this Agreement and the Trust
Agreement, except the registration under the Act and the
Exchange Act of the Registered Securities, the qualification
of the Trust Agreement, the Indenture and the Guarantee
under the TIA, and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(xii) No consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body having jurisdiction over the
Company or any of its properties is required for the issue
of the Guarantee, the issuance and sale of the Junior
Subordinated Debentures, the distribution of the Junior
Subordinated Debentures by MP&L Capital in the circumstances
contemplated by the Trust Agreement or the consummation by
the Company of the transactions contemplated herein and in
the Company Agreements, except the registration under the
Act of the Registered Securities, the qualification of the
Trust Agreement, the Indenture and the Guarantee under the
TIA, the entry of the Authorizing Order of the Minnesota
Commission, and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(xiii) The statements set forth in the
Prospectus under the captions "Description of the Preferred
Securities", "Description of the Guarantee" and "Description
of the Junior Subordinated Debentures", insofar as they
purport to constitute a summary of the terms of the
securities, documents and instruments therein described, are
accurate and fairly present the information contained
therein in all material respects;
(xiv) The documents incorporated by reference
in the Prospectus or any further amendment or supplement
thereto made by MP&L Capital or the Company prior to the
Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the
Commission thereunder; and such counsel has no reason to
believe that such documents when such documents became
effective or were so filed, as the case may be, taken
together as a whole contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or in the case of other
documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so
filed, not misleading; and
(xv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other
financial or statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and
the TIA and the rules and regulations thereunder; although
such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection
(xiii) of this section 7(c), such counsel has no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto, as of its
effective date, made by MP&L Capital or the Company prior to
the Time of Delivery (other than the financial statements
and related schedules and other financial or statistical
data contained therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto
made by MP&L Capital or the Company prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial or statistical data contained
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Time of
Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial or statistical data contained
therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(d) ▇▇▇▇ & Priest LLP, counsel for the Company, shall
have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(c) hereto) (in rendering
such opinion, such counsel may rely on the opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger delivered pursuant to subsection
(e) hereof as to matters of Delaware law relating to
statutory business trusts), dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) This Agreement has been duly authorized,
executed and delivered by the Company and each of this
Agreement and the Expense Agreement has been duly
authorized, executed and delivered by MP&L Capital;
(ii) The Company Agreements have each been duly
authorized, executed and delivered by the Company and each
of the Company Agreements constitutes a valid and legally
binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equitable principles (whether considered at a
proceeding in equity or at law); the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under
the TIA; the Junior Subordinated Debentures are entitled to
the benefits provided by the Indenture;
(iii) The Securities, the Common Securities
and the Junior Subordinated Debentures conform as to legal
matters to the descriptions thereof contained in the
Prospectus;
(iv) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue of the
Guarantee, the issuance and sale of the Junior Subordinated
Debentures, the distribution of the Junior Subordinated
Debentures by MP&L Capital in the circumstances contemplated
by the Trust Agreement or the consummation by the Company of
the transactions contemplated herein and in the Company
Agreements, except the registration under the Act of the
Registered Securities, the qualification of the Trust
Agreement, the Indenture and the Guarantee under the TIA,
the entry of the Authorizing Order of the Minnesota
Commission, and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(v) The statements set forth in the Prospectus
under the captions "Description of Preferred Securities,"
"Description of the Guarantee" and "Description of the
Junior Subordinated Debentures," insofar as they purport to
constitute a summary of the terms of the securities,
documents and instruments therein described, and under the
captions "Certain United States Income Tax Considerations,"
insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate and
fairly present the information contained therein in all
material respects;
(vi) Neither MP&L Capital nor the Company is an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act; and
(vii) The Registration Statement and the
Prospectus and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules
and other financial or statistical data contained therein,
as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of
the Act and the TIA and the rules and regulations
thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion
in subsection (xiii) of this section 7(c), such counsel has
no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by MP&L Capital or the Company prior to the Time of Delivery
(other than the financial statements and related schedules
and other financial or statistical data contained therein,
as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of
its date, the Prospectus or any further amendment or
supplement thereto made by MP&L Capital or the Company prior
to the Time of Delivery (other than the financial statements
and related schedules and other financial or statistical
data contained therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that, as of the Time of Delivery, the Prospectus or any
further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules and other financial or
statistical data contained therein, as to which such counsel
need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware
counsel to MP&L Capital and the Company, shall have
furnished to you, the Company and MP&L Capital their written
opinion (a draft of such opinion is attached as Annex II(d)
hereto), dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) MP&L Capital has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the
creation and valid existence of MP&L Capital as a business
trust have been made;
(ii) Under the Delaware Business Trust Act and the
Trust Agreement, MP&L Capital has the trust power and
authority to own property and conduct its business, all as
described in the Prospectus;
(iii) The Trust Agreement constitutes a valid
and binding obligation of the Company and the Trustees,
enforceable against the Company and the Trustees in
accordance with its terms, subject, as to enforcement, to
(a) bankruptcy, insolvency, moratorium, receivership,
liquidation, fraudulent conveyance, reorganization and other
similar laws relating to or affecting the remedies and
rights of creditors, (b) general principles of equity,
including applicable laws relating to fiduciary duties
(regardless of whether considered or applied in a proceeding
in equity or at law) and (c) the effect of applicable public
policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, MP&L Capital has the trust power and
authority (a) to execute and deliver, and to perform its
obligations under, this Agreement and (b) to issue and
perform its obligations under the Securities;
(v) Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery by MP&L Capital
of this Agreement, and the performance by MP&L Capital of
its obligations hereunder, have been duly authorized by all
necessary trust action on the part of MP&L Capital;
(vi) The Securities have been duly authorized by
MP&L Capital and are duly and validly issued and, subject to
the qualifications set forth herein, fully paid and non-
assessable undivided beneficial interests in the assets of
MP&L Capital; the Securityholders, as beneficial owners of
MP&L Capital, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such
counsel may note that the Securityholders may be obligated,
pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay a sum sufficient
to cover any taxes or governmental charges arising from
transfers or exchanges of Securities certificates and the
issuance of replacement Securities certificates and (b)
provide security and/or indemnity in connection with
requests of or directions to the Property Trustee (as
defined in the Trust Agreement) to exercise its rights and
powers under the Trust Agreement;
(vii) Under the Delaware Business Trust Act
and the Trust Agreement, the issuance of the Securities is
not subject to preemptive rights;
(viii) The issuance and sale by MP&L Capital of
the Securities, the execution, delivery and performance by
MP&L Capital of this Agreement, the consummation by MP&L
Capital of the transactions contemplated hereby and
compliance by MP&L Capital with its obligations hereunder do
not violate (a) any of the provisions of the Certificate of
Trust of MP&L Capital or the Trust Agreement, or (b) any
applicable Delaware law or administrative regulation;
(ix) Assuming that MP&L Capital derives no income
from or connected with sources within the State of Delaware
and has no assets, activities (other than having a Delaware
trustee as required by the Delaware Business Trust Act and
the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency
is required to be obtained by MP&L Capital solely in
connection with the issuance and sale of the Securities; and
(x) Assuming that MP&L Capital derives no income
from or connected with sources within the State of Delaware
and has no assets, activities (other than having a Delaware
trustee as required by the Delaware Business Trust Act and
the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware,
and assuming that MP&L Capital is treated as a grantor trust
or partnership for federal income tax purposes, the
Securityholders (other than those holders of the Securities
who reside or are domiciled in the State of Delaware) will
have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in MP&L
Capital, and MP&L Capital will not be liable for any income
tax imposed by the State of Delaware (in rendering the
opinion expressed in this paragraph (e), such counsel need
express no opinion concerning the securities laws of the
State of Delaware);
(f) On the date of the Prospectus at a time prior to
the execution of this Agreement, on the effective date of
any post-effective amendment to the Registration Statement
containing financial information filed subsequent to the
date of this Agreement and also at the Time of Delivery,
Price Waterhouse LLP and Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I
hereto (the executed copies of such letter or letters
delivered prior to execution of this Agreement are attached
as Annex I(a) hereto and drafts of the forms of letter or
letters to be delivered on the effective date of any post-
effective amendment to the Registration Statement and as of
the Time of Delivery are attached as Annex I(b) hereto);
(g) The Trust Agreement, the Guarantee and the
Indenture shall have been executed and delivered, in each
case in form reasonably satisfactory to you;
(h) (i) Neither MP&L Capital nor the Company and its
subsidiaries, taken together as a whole, shall have
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the
Prospectus there shall not have been any change in the
capital stock (other than shares issued under the Stock
Purchase and Compensation Plans) or long-term debt of the
Company and its subsidiaries, taken together as a whole, in
excess of $20,000,000, or any change, or any development
that could reasonably be expected to involve a prospective
change, in or affecting the business, management, financial
position, common or preferred stock equity or results of
operations of MP&L Capital or the Company and its
subsidiaries, taken together as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of
which, in any such case described in Clause (i) or (ii), is
in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in
the Prospectus;
(i) On or after the date hereof up to and including
the Time of Delivery (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical
rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's
debt securities or preferred stock;
(j) On or after the date hereof there up to and
including the Time of Delivery shall not have occurred any
of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration
by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in
the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and
in the manner contemplated in the Prospectus;
(k) The Securities to be sold at the Time of Delivery
by MP&L Capital shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange; and
(l) MP&L Capital and the Company shall have furnished
or caused to be furnished to you at the Time of Delivery
certificates of officers of MP&L Capital and the Company
satisfactory to you as to the accuracy of the
representations and warranties of MP&L Capital and the
Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and
(h) of this Section and as to such other matters as you may
reasonably request.
8. (a) MP&L Capital and the Company, jointly and
severally, will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the
Act, the Exchange Act or other federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided,
however, that neither MP&L Capital nor the Company shall be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information
furnished to MP&L Capital and the Company by any Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein; and
provided, further, that neither MP&L Capital nor the Company
shall be liable in any such case with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such
Underwriter sold Securities to a person as to whom it shall be
established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where delivery is required
by the Act if MP&L Capital or the Company has previously
furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was
identified in writing at such time to such Underwriter and
corrected in the Prospectus as then amended or supplemented
(excluding documents incorporated by reference).
(b) Each Underwriter will indemnify and hold harmless
MP&L Capital and the Company against any losses, claims, damages
or liabilities to which MP&L Capital and the Company may become
subject, under the Act, the Exchange Act or other federal or
state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information
furnished to MP&L Capital and the Company by such Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and will
reimburse MP&L Capital and the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under
such subsection, notify an indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party. An indemnifying party shall not
be required to indemnify an indemnified party for any amounts
paid or payable by the indemnifying party in the settlement of
any action, proceeding or investigation without the written
consent of the indemnifying party, which consent shall not be
unreasonably withheld. An indemnifying party shall not be
liable, in connection with any proceedings or related proceedings
in the same jurisdiction, for the fees and expenses of more than
one separate counsel (in addition to any one local counsel in any
such jurisdiction) for all of the indemnified parties.
(d) If the indemnification provided for in this
Section 8 is unavailable to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the
relative benefits received by MP&L Capital and the Company on the
one hand and the Underwriters on the other from the offering of
the Securities (taking into account the portion of the proceeds of
the offering (before deducting expenses) realized by each),
the relative fault of MP&L Capital and the Company on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. Relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by MP&L Capital and the Company on the one
hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. MP&L Capital, the
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the 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 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of MP&L Capital and the Company
under this Section 8 shall be in addition to any liability which
MP&L Capital and the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of MP&L Capital and the
Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another
party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default
by any Underwriter you do not arrange for the purchase of such
Securities, then MP&L Capital and the Company shall be entitled
to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase
such Securities on such terms. In the event that, within the
respective prescribed periods, you notify MP&L Capital and the
Company that you have so arranged for the purchase of such
Securities, or MP&L Capital and the Company notify you that it
has so arranged for the purchase of such Securities, you or MP&L
Capital and the Company shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other
documents or arrangements, and MP&L Capital and the Company agree
to file promptly any amendments to the Registration Statement or
the Prospectus which in your reasonable opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like
effect as if such person had originally been a party to this
Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for
the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and MP&L Capital and the Company as provided
in subsection (a) above, the aggregate number of such Securities
which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Securities, then MP&L Capital and the
Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Securities which such
Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities which such Underwriter
agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for
the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and MP&L Capital and the Company as provided
in subsection (a) above, the aggregate number of such Securities
which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Securities, or if MP&L Capital and the Company
shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any non-
defaulting Underwriter, MP&L Capital or the Company except for
the expenses to be borne by MP&L Capital and the Company and the
Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for
its default.
10. The respective indemnities, agreements, representations
and warranties of MP&L Capital and the Company and the several
Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter,
or MP&L Capital, the Company, or any officer or director or
controlling person of MP&L Capital or the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to
Section 9 hereof, neither MP&L Capital nor the Company shall then
be under any liability to any Underwriter except as provided in
Sections 6 and 8 hereof; but, if because of any failure or
refusal on the part of the Company to comply with the terms of
this Agreement or because any of the conditions in Section 7 are
not satisfied, the Securities are not delivered by or on behalf
of MP&L Capital or the Company as provided herein, MP&L Capital
and the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and
delivery of the Securities, but MP&L Capital and the Company
shall then be under no further liability to any Underwriter
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by you
jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to you
as the Representatives in care of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; and if to MP&L Capital or the Company shall be
delivered or sent by mail, telex or facsimile transmission to
MP&L Capital or the Company in care of the Company, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Chief
Financial Officer; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be
supplied to MP&L Capital and the Company by you upon request.
Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, MP&L Capital, the Company
and, to the extent provided in Sections 8 and 10 hereof, the
officers, directors and administrative trustees of MP&L Capital,
the Company, and each person who controls MP&L Capital or the
Company, or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us one for MP&L Capital, the Company
and each of the Representatives plus one for each counsel
counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between
each of the Underwriters, MP&L Capital and the Company. It is
understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
MP&L Capital I
By:____________________________
Name:
Title:
Minnesota Power & Light Company
By:____________________________
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
PaineWebber Incorporated
By:_______________________________
▇▇▇▇▇▇▇, Sachs & Co.
On behalf of each of the Underwriters
SCHEDULE I
Total Number
of Securities to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
PaineWebber Incorporated
[Names of other Underwriters]
-------------
Total =============
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement,
the accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and
any supplementary financial information and schedules (and,
if applicable, financial forecasts and/or pro forma
financial information) examined by them and included or
incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related published
rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected
financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to
the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report
on Form 10-Q incorporated by reference into the Prospectus
as indicated in their reports thereon copies of which have
been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of
officials of the Company who have responsibility for
financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form
in the related in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to
their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the
Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited
procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that
caused them to believe that this information does not
conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with generally
accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information
referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or
(ii) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus or included in
the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements
included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were
derived the unaudited condensed financial statements
referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated
by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments
have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been
any changes in the consolidated capital stock (other
than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs
of performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference in the
Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or
any decreases in consolidated net current assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items
specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the
Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have
occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income
or other items specified by the Representatives, or any
increases in any items specified by the
Representatives, in each case as compared with the
comparable period of the preceding year and with any
other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in
their report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an
examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which
are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part
II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found
them to be in agreement.
