Exhibit 1
Wisconsin Public Service Corporation
____% Senior Notes Due _______
Form of Underwriting Agreement
New York, New York
___________ , 19__
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Wisconsin Public Service Corporation, a corporation
organized under the laws of Wisconsin (the "Company"), proposes to sell to
the several underwriters named in Schedule II hereto (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, the
principal amount of its senior debt securities identified in Schedule I
hereto (the "Senior Notes"), to be issued under an Indenture dated as of
December 1, 1998, between the Company and Firstar Bank Milwaukee, N.A., as
trustee (the "Senior Trustee"), as supplemented by the _______ Supplemental
Indenture dated __________, 19__, creating the series in which the Senior
Notes are to be issued, a form of which is included as an exhibit to the
Registration Statement (the "Supplemental Indenture to the Senior
Indenture"). The term "Senior Indenture," as used herein, means such
Indenture dated as of December 1, 1998 , as supplemented by the
Supplemental Indenture to the Senior Indenture. To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as
the context requires.
Until the Release Date (as defined in the Senior
Indenture), the Senior Notes will be secured as to payment of principal and
interest by the Company's First Mortgage Bonds, Collateral Series ___ (the
"Collateral Bonds"), issued under and ratably secured by the First Mortgage
and Deed of Trust dated January 1, 1941 between the Company and Firstar Bank
Milwaukee, N.A. (the successor to First Wisconsin Trust Company), as Trustee
(the "Mortgage Trustee"), as amended and supplemented to the Execution Time
(as so amended and supplemented, the "Original Mortgage Indenture") and to be
further supplemented by the ___________ Supplemental Indenture thereto, a
form of which is included in the Registration Statement, creating the
Collateral Bonds (the "Supplemental Indenture to the Mortgage Indenture").
The term "Mortgage Indenture," as used herein, means the Original Mortgage
Indenture, as supplemented by the Supplemental Indenture to
the Mortgage Indenture. The Collateral Bonds will be issued, pledged and
delivered to the Senior Trustee by the Company concurrently with the issue
and delivery of the Senior Notes.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final 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 Exchange
Act on or before the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof. Capitalized terms used herein and not otherwise defined
have the meaning given such terms in the Senior Indenture.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Senior Notes. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission one of the following: (1) after the Effective Date of
such registration statement, a final prospectus supplement relating to the
Senior Notes in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement),
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
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(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) 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 or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Final Prospectus; the Company has not filed Articles of Dissolution
with the Secretary of State of Wisconsin, and no grounds exist for the
Secretary of State of Wisconsin to dissolve such corporation
administratively pursuant to the provisions of the Wisconsin Business
Corporation Law; the Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification; the Company is a "public utility
company" as such term is defined in the Public Utility Holding Company Act
of 1935, as amended (the "Public Utility Holding Company Act").
(d) 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 1-02 of Regulation S-X.
(e) All of the Company's issued and outstanding shares of common
stock are owned, beneficially and of record, by WPS Resources Corporation,
a Wisconsin corporation ("WPSR"); the Company's authorized preferred stock
is as set forth in the Final Prospectus; except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange
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any securities for, shares of capital stock or ownership interests of the
Company are outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit thereto, which is not described or filed as
required.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company enforceable in accordance with its terms.
(h) The Senior Indenture has been duly authorized by the Company; on
the Closing Date, the Senior Indenture will have been duly executed by the
Company and, assuming due authorization, execution and delivery by the
Senior Trustee, will be a valid and binding instrument enforceable against
the Company in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law (the
"Bankruptcy Exceptions"); the Senior Indenture has been duly qualified
under the Trust Indenture Act; the Senior Indenture conforms in all
material respects to the description thereof contained in the Final
Prospectus.
(i) The Senior Notes have been duly authorized by the Company; on the
Closing Date, the Senior Notes will have been duly executed by the Company,
and when authenticated in accordance with the provisions of the Senior
Indenture and delivered and paid for by the Underwriters pursuant to this
Agreement, will constitute valid and legally binding obligations of the
Company entitled to the benefits and security provided by the Senior
Indenture and enforceable against the Company in accordance with their
terms, subject, as to enforcement of remedies, to the Bankruptcy
Exceptions; the Senior Notes conform in all material respects to the
description thereof contained in the Final Prospectus.
(j) The Original Mortgage Indenture has been duly authorized,
executed and delivered by the Company; the Supplemental Indenture to the
Mortgage Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company
and, assuming due execution and delivery of the Supplemental Indenture to
the Mortgage Indenture by the Mortgage Trustee, the Mortgage Indenture will
constitute a valid and binding instrument, enforceable against the Company
in accordance with its terms, except as the same may be limited by the laws
of the States of Wisconsin and Michigan affecting the remedies for the
enforcement of the security provided for therein (which laws do not make
such remedies inadequate for the realization of the benefits of such
security) and by the Bankruptcy Exceptions; the Mortgage Indenture conforms
in all material respects to the description thereof contained in the Final
Prospectus.
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(k) The Collateral Bonds have been duly authorized by the Company
and, when duly executed and authenticated in accordance with the provisions
of the Mortgage Indenture and delivered to the Senior Trustee in the manner
provided therein, will have been duly authorized, executed, authenticated
and issued and will constitute valid and legally binding obligations of the
Company, secured by the lien of, and entitled to the benefits provided by,
the Mortgage Indenture, equally and ratably with all other bonds of the
Company duly issued and outstanding under the Mortgage Indenture, and will
be enforceable against the Company in accordance with their terms, except
as the same may be limited by the laws of the States of Wisconsin and
Michigan affecting the remedies for the enforcement of the security
provided for therein (which laws do not make such remedies inadequate for
the realization of the benefits of such security) and by the Bankruptcy
Exceptions; the Collateral Bonds conform in all material respects to the
description thereof contained in the Final Prospectus.
(l) Each of the Company and its subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted. The properties of the Company described under Item 2 of the
Company's most recent Annual Report on Form 10-K are owned in fee simple
either individually or jointly, as indicated in such annual report, or are
held under valid leases, in each case subject only to the lien of the
Mortgage Indenture and minor imperfections of titles and encumbrances, if
any, which are not substantial in amount, do not materially detract from
the value or marketability of the properties subject thereto, and do not
materially impair the Company's operations.
(m) The Company is not and, after giving effect to the offering and
sale of the Senior Notes and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(n) Except for WPSR, no person or corporation which is a "holding
company" or a "subsidiary of a holding company" within the meaning of such
terms as defined in the Public Holding Company Act, directly or indirectly
owns, controls or holds with power to vote 10% or more of the outstanding
voting securities of the Company; WPSR and the Company are presently exempt
from the provisions of the Public Utility Holding Company Act which would
require them to register thereunder.
(o) The Public Service Commission of Wisconsin has duly
authorized the issuance and sale by the Company of the Senior Notes and the
issuance and pledge of the Collateral Bonds on the terms set forth in the
Final Prospectus and this Agreement, and such authorization is in force
and effect and sufficient for the issuance and sale of the Senior Notes to
the Underwriters and the issuance and pledge of the Collateral Bonds to the
Senior Trustee. No other consent, approval, authorization, filing with or
order of any court or other governmental agency or body is required in
connection with the transactions contemplated herein, except such as have
been obtained under the Act and the Trust Indenture Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Senior Notes by the Underwriters in the
manner contemplated herein and in the Final Prospectus.
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(p) The execution and delivery of the Senior Indenture or the
Supplemental Indenture to the Mortgage Indenture, the issue and sale of the
Senior Notes, the issue and pledge of the Collateral Bonds, the
consummation of any other of the transactions herein contemplated or the
fulfillment of the terms hereof will not conflict with, result in a breach
or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries is a
party or bound or to which its or their property is subject (other than the
lien of the Mortgage Indenture), or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties.
(q) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(r) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiary included in the Final
Prospectus and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows of
the Company and its subsidiary as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected financial data
set forth under the caption "Summary Financial Information" in the Final
Prospectus and Registration Statement fairly present, on the basis stated
in the Final Prospectus and the Registration Statement, the information
included therein.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(t) Neither the Company nor any of its subsidiaries is in violation
or default of (i) any provision of its charter or bylaws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, except for such violations or defaults which would not,
individually or in the
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aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, or (iii) any statute,
law, rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any
of its properties, as applicable.
(u) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and its consolidated subsidiary and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(v) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently
being contested in good faith or as would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(w) No labor problem or dispute with the employees of the Company
exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
principal suppliers, contractors or customers, that could have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(x) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause, except for such claims
which, if successfully denied, would not have a material adverse effect on
the condition
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(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business; neither the
Company nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any subsidiary has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus (exclusive
of any supplement thereto).
(y) 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 subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto).
(z) 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.
(aa) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Senior Notes.
(bb) The Company and 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
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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 on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto). Except as
set forth in the Final Prospectus, the Company has not been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(cc) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis
of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(dd) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and its
subsidiaries are eligible to participate, and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published interpretations.
The Company and its subsidiaries have not incurred any unpaid liability to
the Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA.
(ee) The Company and its subsidiaries have 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 (the "Year 2000 Problem"), and
reasonably believes that such risk will be remedied on a timely basis
without material expense, except as set forth or contemplated in the Final
Prospectus, and will not have a material adverse effect upon the financial
condition and results of operations of the Company and its subsidiaries,
taken as a whole.
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Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Senior Notes shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Senior Notes set forth opposite
such Underwriter's name in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Senior
Notes shall be made on the date and at the time specified in Schedule I hereto
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Senior Notes being herein called the "Closing Date"). Delivery of the Senior
Notes shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Senior Notes shall be made through the facilities
of The Depository Trust Company.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Senior Notes for sale to the public as set
forth in the Final Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Senior Notes, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3) when,
prior to termination of the offering of the Senior Notes, any amendment to
the Registration Statement shall have been filed or become effective,
(4) of any request by the Commission
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or its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Senior Notes for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Senior Notes is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance, and
(3) supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Senior Notes for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Senior Notes;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Senior Notes, in any
jurisdiction where it is not now so subject.
11
(f) Until the Business Day set forth on Schedule I hereto, the
Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney, offer, sell or contract to sell, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company (other
than the Senior Notes, commercial paper or other short-term debt).
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Senior Notes.
(h) The Company will issue and deliver the Collateral Bonds to the
Senior Trustee as security for the Senior Notes in the manner described in
the Final Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Senior Notes shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date, or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Wisconsin,
with full corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of Michigan;
12
the Company is a "public utility company" as such term is defined
under the Public Utility Holding Company Act.
(ii) All of the Company's issued and outstanding shares of
common stock are owned of record by WPSR; the Company's authorized
preferred stock is as set forth in the Final Prospectus; except as set
forth in the Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are
outstanding.
(iii) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required.
(iv) The Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final Prospectus as
of its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Senior Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
instrument enforceable
13
against the Company in accordance with its terms, subject, as to
enforcement of remedies, to the Bankruptcy Exceptions; the Senior
Indenture has been duly qualified under the Trust Indenture Act;
the Senior Indenture conforms in all material respects to the
description thereof contained in the Final Prospectus.
(vii) The Senior Notes have been duly authorized by the
Company, and when executed and authenticated in accordance with the
provisions of the Senior Indenture and delivered and paid for by the
Underwriters pursuant to this Agreement, will constitute valid and
legally binding obligations of the Company entitled to the benefits
and security provided by the Senior Indenture and enforceable against
the Company in accordance with their terms, subject, as to enforcement
of remedies, to the Bankruptcy Exceptions; the Senior Notes conform in
all material respects to the description thereof contained in the
Final Prospectus.
(viii) The Mortgage Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
instrument, enforceable against the Company in accordance with its
terms, except as the same may be limited by the laws of the States of
Wisconsin and Michigan affecting the remedies for the enforcement of
the security provided for therein (which laws do not in such counsel's
opinion make such remedies inadequate for the realization of the
benefits of such security) and by the Bankruptcy Exceptions; the
Mortgage Indenture conforms in all material respects to the
description thereof contained in the Final Prospectus.
(ix) The Collateral Bonds have been duly authorized by the
Company and, when executed and authenticated in accordance with the
provisions of the Mortgage Indenture, and issued, pledged and
delivered to the Senior Trustee pursuant to the Senior Indenture as
security for the Senior Notes, will constitute valid and legally
binding obligations of the Company, secured by the lien of, and
entitled to the benefits provided by, the Mortgage Indenture, equally
and ratably with all other bonds of the Company duly issued and
outstanding under the Mortgage Indenture, and will be enforceable
against the Company in accordance with their terms, except as the same
may be limited by the laws of the States of Wisconsin and Michigan
affecting the remedies for the enforcement of the security provided
for therein (which laws do not in such counsel's opinion make such
remedies inadequate for the realization of the benefits of such
security) and by the Bankruptcy Exceptions; the Collateral Bonds
conform in all material respects to the description thereof contained
in the Final Prospectus.
(x) The Company has good and marketable title to the real and
fixed properties described in the Mortgage Indenture (other than
properties disposed of and released thereunder and lands described as
held only under flowage rights) free and clear of all liens, charges
and encumbrances against the same prior to or on a parity with the
lien of the Mortgage Indenture, except for and subject only to
permissible encumbrances as defined in the Mortgage Indenture and to
such exceptions, defects
14
and qualifications as in such counsel's opinion do not materially
affect the security for the Collateral Bonds or the Company's title
to or its right to use such properties in the conduct of its
business; the Mortgage Indenture constitutes a valid and direct
first lien upon all real and fixed property and governmental
licenses and permits owned by the Company (including its interests
as tenant-in-common), except property specifically excepted from
the Mortgage Indenture by the terms thereof, subject to no liens or
encumbrances prior to or on a parity with the lien of the Mortgage
Indenture, except permissible encumbrances as defined in the
Mortgage Indenture; and the description in the Mortgage Indenture
of said property is adequate to constitute the Mortgage Indenture a
lien thereon. No examination of title covering rights-of-way for
transmission and distribution lines has been made inasmuch as the
Company has been advised that the expense incident to the obtaining
of abstracts or certificates of title and of examinations in
respect thereto would be in excess of the cost of reacquiring by
condemnation or purchase, possession and use of such parts of such
rights-of-way as might be held under defective titles, and
accordingly, such opinion does not cover such rights-of-way.
Such counsel has relied on certificates of officers of the Company
to the effect that certain parcels described in the Mortgage
Indenture are rights-of-way and that certain parcels are not
required as an integral part of the Company's properties or are not
indispensable to its operations. All real property hereafter
acquired by the Company and located in counties in which the
Mortgage Indenture shall be of record will, upon acquisition,
become subject to the lien of the Mortgage Indenture, subject,
however, to permitted encumbrances and liens (as defined in the
Mortgage Indenture), any liens existing or placed thereon at
acquisition and any liens which might intervene prior to the filing
or recording of the instrument containing a sufficient legal
description confirming of record that such property is subject to
the lien of the Mortgage Indenture, except as the existence or
validity of the lien of the Mortgage Indenture may be affected by
the application of [Sections 547 and/or 552 ] of the U.S.
Bankruptcy Code or by analogous provisions of applicable state
insolvency laws.
(xi) The Mortgage Indenture has been duly recorded or filed
for record in each county in the States of Wisconsin and Michigan
where any real properties described in such instrument are located and
in all other places required by law in order to perfect the lien upon
the property described in the First Mortgage Indenture.
(xii) The Company has statutory authority, franchises, and
consents free from burdensome restrictions and adequate for the
conduct of the business in which it is engaged as described in the
Final Prospectus, except to the extent that the absence of such
statutory authority or the failure to obtain such franchises or
consents would not, singly or in the aggregate, (A) affect the
security for the Collateral Bonds, or (B) have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set forth
or contemplated in the Final Prospectus.
15
(xiii) The issuance and delivery by the Company of the
Collateral Bonds to the Trustee constitute a sale by the Company of
the Collateral Bonds to the Trustee as of the Closing Date or, if not
a sale, the grant by the Company to the Trustee of a perfected
security interest in the Collateral Bonds for the benefit of the
holders of the Senior Notes.
(xiv) The Company is not and, after giving effect to the
offering and sale of the Senior Notes and the application of the
proceeds thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(xv) The Public Service Commission of Wisconsin has duly
authorized the issuance and sale by the Company of the Senior Notes
and the issuance and pledge of the Collateral Bonds on the terms set
forth in the Final Prospectus and this Agreement, and such
authorization is, to the best knowledge of such counsel, in force and
effect and sufficient for the issuance and sale of the Senior Notes to
the Underwriters and the issuance and pledge of the Collateral Bonds
to the Senior Trustee. No consent, approval, authorization, filing
with or order of any court or other governmental agency or body is
required in connection with the transactions contemplated herein,
except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Senior Notes by the Underwriters in the manner contemplated herein
and in the Final Prospectus.
(xvi) The execution and delivery of the Senior Indenture or
the Supplemental Indenture to the Mortgage Indenture, the issuance and
sale of the Senior Notes, the issuance and pledge of the Collateral
Bonds, the consummation of any other of the transactions herein
contemplated or the fulfillment of the terms hereof will not conflict
with, result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, (i) the charter or by-laws of the Company, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument (other than the lien of the Mortgage Indenture)
known to such counsel to which the Company is a party or bound or to
which its property is subject, (iii) any statute, law, rule, or
regulation applicable to the Company, or (iv) any judgment, order or
decree known to such counsel and applicable to the Company of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its properties.
(xvii) To the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
16
In rendering such opinion, such counsel (A) may rely as to matters
involving the application of laws of any jurisdiction other than the State
of Wisconsin or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, (B) may assume, as to matters
of New York law relating to this Agreement, that New York law does not
differ from Wisconsin law in any material respect, and (C) may rely, as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements thereto
at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Senior Notes, the issuance and pledge of the
Collateral Bonds, the Senior Indenture, the Mortgage Indenure,the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated
17
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders and
directors of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 1997, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the published rules and regulations of the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
[September 30, 1998], there were any changes, at a specified date
not more than five days prior to the date of the letter, in the
consolidated long-term debt of the Company or capital stock of
the Company or decreases in consolidated net assets or
stockholders' equity of the Company as compared with the amounts
shown on the [September 30, 1998] consolidated balance sheet
included or incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period from
[October 1, 1998] to such specified date there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated operating revenues or in total
or per share amounts of net income of the Company, except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by
the Company as to the significance
18
thereof unless said explanation is not deemed necessary by the
Representatives; or
(3) the information included or incorporated by
reference in the Registration Statement and Final Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), [Item 402
(Executive Compensation)] and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the applicable
disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
set forth under the captions "Summary Financial Information" and
"Ratios of Earnings to Fixed Charges " in the Final Prospectus, the
information included or incorporated by reference in Items 1, 2, 6, 7
[and 11] of the Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final Prospectus, and
the information included in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q, incorporated by reference in the Registration Statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Senior Notes as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities (including
the Senior Notes) by any
19
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date, or at such
other place as may be agreed upon by the Company and the Underwriters.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Senior Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the Senior
Notes.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Senior Notes as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably
20
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action, or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
21
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Senior Notes;
PROVIDED, HOWEVER, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Senior Notes) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Senior Notes purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Senior Notes agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of
22
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the principal amount of Senior Notes set forth opposite
their names in Schedule II hereto bears to the aggregate principal amount of
Senior Notes set forth opposite the names of all the remaining Underwriters)
the Senior Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate
principal amount of Senior Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Senior Notes set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Senior Notes, and if such
nondefaulting Underwriters do not purchase all the Senior Notes, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter
of its liability, if any, to the Company and any nondefaulting Underwriter
for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Senior Notes, if at any time prior to
such time (i) trading in WPSR's common stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal, New York State or Wisconsin
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Senior Notes as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Senior Notes. The provisions
of Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ General Counsel (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Wisconsin Public Service Corporation (fax no: ___________) and confirmed
to Wisconsin Public
23
Service Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Treasurer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Milwaukee,
Wisconsin.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
24
"Final Prospectus" shall mean the prospectus supplement relating to
the Senior Notes that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Senior Notes and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Senior Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Wisconsin Public Service Corporation
By:_________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By:___________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to
the foregoing Agreement.
26
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Senior Notes:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 19 at
10:00 a.m. at
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP delivered pursuant to
Section 6(e) at the Execution Time:
1
SCHEDULE II
Principal Amount
of Senior Notes to
Underwriters be Purchased
------------ ------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Incorporated
------------------
Total: $
------------------
------------------
1
