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