Exhibit 1.02
Draft of 9/15/97
--------------------------------------------------------------------------------
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
900,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: September _____, 1997
--------------------------------------------------------------------------------
TABLE OF CONTENTS
SECTION 1. Representations and Warranties . . . . . . . . . . . . . . 3
(a) Representations and Warranties by the Company . . . . . . . . . 3
(i) Compliance with Registration Requirements. . . . . . . 4
(ii) Incorporated Documents . . . . . . . . . . . . . . . . 4
(iii) Independent Accountants. . . . . . . . . . . . . . . . 5
(iv) Financial Statements . . . . . . . . . . . . . . . . . 5
(v) No Material Adverse Change in Business . . . . . . . . 5
(vi) Good Standing of the Company . . . . . . . . . . . . . 5
(vii) Good Standing of Subsidiaries. . . . . . . . . . . . . 6
(viii) Capitalization . . . . . . . . . . . . . . . . . . . . 6
(ix) Authorization of Agreement . . . . . . . . . . . . . . 6
(x) Authorization and Description of Securities. . . . . . 6
(xi) Absence of Defaults and Conflicts. . . . . . . . . . . 7
(xii) Absence of Labor Dispute . . . . . . . . . . . . . . . 7
(xiii) Absence of Proceedings . . . . . . . . . . . . . . . . 7
(xiv) Accuracy of Exhibits . . . . . . . . . . . . . . . . . 8
(xv) Possession of Intellectual Property. . . . . . . . . . 8
(xvi) Absence of Further Requirements. . . . . . . . . . . . 8
(xvii) Possession of Licenses and Permits . . . . . . . . . . 8
(xviii) Title to Property. . . . . . . . . . . . . . . . . . . 9
(xix) Compliance with Cuba Act . . . . . . . . . . . . . . . 9
(xx) Investment Company Act . . . . . . . . . . . . . . . . 9
(xxi) Environmental Laws . . . . . . . . . . . . . . . . . . 9
(b) Officer's Certificates. . . . . . . . . . . . . . . . . . . . .10
SECTION 2. Sale and Delivery to International Managers; Closing . . .10
(a) International Initial Securities. . . . . . . . . . . . . . . .10
(b) International Option Securities . . . . . . . . . . . . . . . .10
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(d) Denominations; Registration . . . . . . . . . . . . . . . . . .11
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . .11
(a) Compliance with Securities Regulations and Commission
Requests. . . . . . . . . . . . . . . . . . . . . . . . . . .11
(b) Filing of Amendments. . . . . . . . . . . . . . . . . . . . . .12
(c) Delivery of Registration Statements . . . . . . . . . . . . . .12
(d) Delivery of Prospectuses. . . . . . . . . . . . . . . . . . . .12
(e) Continued Compliance with Securities Laws . . . . . . . . . . .13
(f) Blue Sky Qualifications . . . . . . . . . . . . . . . . . . . .13
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . . .13
(h) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . .13
(i) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . .14
(j) Restriction on Sale of Securities . . . . . . . . . . . . . . .14
(k) Reporting Requirements. . . . . . . . . . . . . . . . . . . . .14
SECTION 4. Payment of Expenses. . . . . . . . . . . . . . . . . . . .14
i
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . .14
(b) Termination of Agreement. . . . . . . . . . . . . . . . . . . .15
SECTION 5. Conditions of International Managers' Obligations. . . . .15
(a) Effectiveness of Registration Statement . . . . . . . . . . . .15
(b) Opinion of Counsel for Company. . . . . . . . . . . . . . . . .15
(c) Opinion of Counsel for International Managers . . . . . . . . .15
(d) Officers' Certificate . . . . . . . . . . . . . . . . . . . . .16
(e) Accountant's Comfort Letter . . . . . . . . . . . . . . . . . .16
(f) Bring-down Comfort Letter . . . . . . . . . . . . . . . . . . .16
(g) Approval of Listing . . . . . . . . . . . . . . . . . . . . . .16
(h) Purchase of U.S. Initial Securities.. . . . . . . . . . . . . .16
(i) Conditions to Purchase of International Option Securities . . .17
(i) Officers' Certificate. . . . . . . . . . . . . . . . .17
(ii) Opinion of Counsel for Company.. . . . . . . . . . . .17
(iii) Opinion of Counsel for International Managers. . . . .17
(iv) Bring-down Comfort Letter. . . . . . . . . . . . . . .17
(j) Additional Documents. . . . . . . . . . . . . . . . . . . . . .17
(k) Termination of Agreement. . . . . . . . . . . . . . . . . . . .17
SECTION 6. Indemnification. . . . . . . . . . . . . . . . . . . . . .18
(a) Indemnification of International Managers . . . . . . . . . . .18
(b) Indemnification of Company, Directors and Officers. . . . . . .19
(c) Actions against Parties; Notification . . . . . . . . . . . . .19
(d) Settlement without Consent if Failure to Reimburse. . . . . . .19
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery . . . . . . . . . . . . . . . . . . . .21
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . .21
(a) Termination; General. . . . . . . . . . . . . . . . . . . . . .21
(b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 10. Default by One or More of the International Managers. . .22
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 13. Governing Law and Time. . . . . . . . . . . . . . . . . .23
SECTION 14. Effect of Headings. . . . . . . . . . . . . . . . . . . .24
Schedule A List of International Managers . . . . . . . . . . . . .25
Schedule B Pricing Terms. . . . . . . . . . . . . . . . . . . . . .26
Exhibit A Form of Opinion of Company Counsel. . . . . . . . . . A-1
ii
Draft of 9/15/97
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
900,000 Shares of Common Stock
(Par Value $2.50 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
September ____, 1997
XXXXXXX XXXXX INTERNATIONAL
XXXXXXX SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXX XXXXXXXX INCORPORATED
XXXXX XXXXXXX INC.
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Northern States Power Company, a Minnesota corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx International and each of the other
International Managers named in Schedule A hereto (collectively, the
"International Managers," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Xxxxxxx
Xxxxx International, Xxxxxxx Sachs International, Salomon Brothers International
Limited, Xxxx Xxxxxxxx Incorporated and Xxxxx Xxxxxxx Inc. are acting as
representatives (in such capacity, the "Lead Managers"), with respect to (i) the
sale by the Company and the purchase by the International Managers, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $2.50 per share, of the Company ("Common Stock") set forth in Schedule
A hereto and (ii) the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 80,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 900,000 shares of Common Stock (the
"International Initial Securities") to be purchased by the International
Managers and all or any part of the 80,000 shares of Common Stock subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities."
1
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 3,600,000 shares of Common Stock
(the "U.S. Initial Securities") through arrangements with certain underwriters
in the United States and Canada (the "U.S. Underwriters") for which Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs
& Co., Salomon Brothers Inc, Xxxx Xxxxxxxx and Xxxxx Xxxxxxx are acting as
representatives (the "U.S. Representatives") and the grant by the Company to the
U.S. Underwriters, acting severally and not jointly, of an option to purchase
all or any part of the 320,000 additional shares of Common Stock solely to cover
overallotments, if any (the "U.S. Option Securities" and, together with the
International Option Securities, the "Option Securities"). The U.S. Initial
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that the Company is not obligated to sell, and
the International Managers are not obligated to purchase, any International
Initial Securities unless all of the U.S. Initial Securities are
contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the U.S. Initial Securities and the
International Initial Securities are hereinafter collectively called the
"Initial Securities", and the International Securities and the U.S. Securities
are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-33785) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses and
such amendments thereto, if any, as may have been required to the date hereof.
Two forms of prospectus are to be used in connection with the offering and sale
of the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus will be
identical to the Form of U.S. Prospectus, except for the front cover, inside
front cover and back cover page and the information under the caption
"Underwriting." Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a Form of U.S. Prospectus and a Form of
International Prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the
2
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file term sheets (a "Term Sheet") in accordance with
the provisions of Rule 434 and Rule 424(b). The information included in each
such prospectus or in each such Term Sheet, as the case may be, that was omitted
from such registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became effective
(a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of U.S. Prospectus and the final Form of
International Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first
furnished to the Underwriters for use in connection with the offering of the
Securities is herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the term terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated August 27, 1997 and preliminary
International Prospectus dated August 27, 1997, respectively, each together with
the applicable Term Sheet and all references in this Agreement to the date of
the Prospectus shall mean the date of the applicable Term Sheet. For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus, the U.S. Prospectus, the International Prospectus or
any Term Sheet or any amendment or 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").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectuses or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
3
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each International
Manager, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option Securities
are purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and 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.
Neither the Prospectuses nor any amendments or supplements thereto, at the time
the Prospectuses or any such amendment or supplement was issued and at the
Closing Time (and, if any International Option Securities are purchased, at the
Date of Delivery), included or will include an untrue statement of a material
fact or omitted or will 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. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International Manager
through Xxxxxxx Xxxxx International expressly for use in the Registration
Statement or International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectuses 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.
4
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectuses, 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 thereunder (the "1934 Act Regulations"),
and, when read together with the other information in the Prospectuses, at the
time the Registration Statement became effective, at the time the Prospectuses
were issued and at the Closing Time (and, if any International Option Securities
are purchased, at the Date of Delivery), 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.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectuses, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information included in
the Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein, (A) there has been no 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 (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for regular
dividends on the Common Stock and the Company's preferred stock in amounts per
share that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Minnesota and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this
5
Agreement and the U.S. Purchase Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or be in good standing would not result in a Material
Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the Company
named in Exhibit 21.01 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996 ("Significant Subsidiary") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each such Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Significant Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company are (a) the subsidiaries listed on Exhibit
21.01 to the Company's Annual Report on Form 10-K for the year ended December
31, 1996 and (b) certain other subsidiaries which, considered in the aggregate
as a single Subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(viii) CAPITALIZATION. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement or the U.S. Purchase Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or options
referred to in the Prospectuses). The shares of issued and outstanding capital
stock have been duly authorized and validly issued and are fully paid and non-
assessable; none of the outstanding shares of capital stock was issued in
violation of the preemptive or other similar rights of any securityholder of the
Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities have been
duly authorized for issuance and sale to the International Managers pursuant to
this Agreement and to the U.S. Underwriters pursuant to the U.S. Purchase
Agreement and, when issued and delivered by the Company pursuant to this
Agreement and the
6
U.S. Purchase Agreement, respectively, against payment of the consideration set
forth herein and therein, will be validly issued and fully paid and non-
assessable; the Common Stock conforms to all statements relating thereto
contained in the Prospectuses and such description conforms to the rights set
forth in the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the issuance
of the Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or, except as disclosed
in the Registration Statement, in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not result in
a Material Adverse Effect; and the execution, delivery and performance of this
Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated herein and therein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or
7
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially or adversely affect the properties or
assets thereof or 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 subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required in the Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to carry
on the business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would result in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. The Minnesota Public Utilities
Commission has issued its order approving capital structure which order
authorizes the issuance of the Securities, and no other filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations under this
Agreement and the U.S. Purchase Agreement, in connection with the offering,
issuance or sale of the Securities hereunder and thereunder or the consummation
of the transactions contemplated by this Agreement and the U.S. Purchase
Agreement, except such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or foreign or state securities laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
8
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company has good and valid title to all
real and fixed property and leasehold rights owned by it, subject only to taxes
and assessments not yet delinquent; the lien of the Company's Trust Indenture,
dated as of February 1, 1937, as supplemented and amended (the "Indenture"); as
to parts of the Company's property, certain easements, conditions, restrictions,
leases, and similar encumbrances which do not affect the Company's use of such
property in the usual course of its business and certain minor defects in titles
which are not material, and defects in titles to certain properties which are
not essential to the Company's business; and mechanics' lien claims being
contested or not of record or for the satisfaction or discharge of which
adequate provision has been made by the Company pursuant to the Indenture; and
any real property and buildings held under lease by the Company is held by it
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company.
(xix) COMPLIANCE WITH CUBA ACT. The Company has complied with, and is
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
(xx) INVESTMENT COMPANY ACT. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment
9
(including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation or
proceeding relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to the International Managers
or to counsel for the International Managers shall be deemed a representation
and warranty by the Company to each International Manager as to the matters
covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING.
(a) INTERNATIONAL INITIAL SECURITIES. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each International Manager and each
International Manager, severally and not jointly, agrees to purchase from the
Company, at the price per share set forth in Schedule B, the number of
International Initial Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of International Initial
Securities which such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof, subject to such adjustments
among the International Managers as the representatives in their sole discretion
shall make to eliminate any sales or purchases of fractional securities.
(b) INTERNATIONAL OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 80,000 shares of Common Stock, at the price per share set forth in
Schedule B, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the International Initial Securities but
not payable on the International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the
International Initial Securities upon notice by the Global Coordinator to the
Company setting
10
forth the number of International Option Securities as to which the several
International Managers are then exercising the option and the time and date of
payment and delivery for such International Option Securities. Any such time
and date of delivery (a "Date of Delivery") shall be determined by the Global
Coordinator, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of
International Initial Securities set forth in Schedule A opposite the name of
such International Manager bears to the total number of International Initial
Securities, subject in each case to such adjustments as the Lead Managers in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the International Initial Securities shall be made at the
offices of Xxxxxxx, Carton & Xxxxxxx, 000 X. Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as shall be agreed upon by the Global Coordinator
and the Company 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 Global Coordinator and the Company (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Lead Managers and the Company, on each Date of
Delivery as specified in the notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
the Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the International Initial Securities and the International
Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the
International Initial Securities or the International Option Securities, if any,
to be purchased by any International Manager whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such International Manager from its obligations
hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the International
Initial Securities and the International Option Securities, if any, shall be in
such denominations and registered in
11
such names as the Lead Managers may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the International Initial Securities and the
International Option Securities, if any, will be made available for examination
and packaging by the Lead Managers in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
International Manager as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Lead Managers immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or 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.
(b) FILING OF AMENDMENTS. The Company will give the Lead Managers notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectuses included in the Registration
Statement at the time it became effective or to the Prospectuses, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Lead
Managers 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 to which the Lead Managers or counsel for the International
Managers shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Lead Managers and counsel for the International Mangers,
without charge, signed 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
12
of experts, and will also deliver to the Lead Managers, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the International Managers.
The copies of the Registration Statement and each amendment thereto furnished to
the International Managers 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 has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the Prospectuses are required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectuses (as amended
or supplemented) as such International Manager may reasonably request. The
Prospectuses and any amendments or supplements thereto furnished to the
International Managers 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 the U.S. Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the 1933 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 International Managers or for the Company, to amend the
Registration Statement or amend or supplement the Prospectuses in order that the
Prospectuses 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 Prospectuses 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 Prospectuses comply with such requirements, and the Company
will furnish to the International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Lead Managers may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any
13
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 or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(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 net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(i) LISTING. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange, Chicago Stock Exchange and
Pacific Exchange.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 120 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of Xxxxxxx Xxxxx International (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder or under the
U.S. Purchase Agreement, (B) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectuses, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectuses or (D) any shares of Common Stock issued pursuant to any non-
employee director stock plan or dividend reinvestment plan.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are 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.
14
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, any Intersyndicate Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the International Managers and the U.S. Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (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 International Managers
in connection therewith and in connection with the preparation of any Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of any Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities and (ix) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange,
Chicago Stock Exchange and Pacific Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the International Managers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The obligations
of the several International Managers 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 of the
Company 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 Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the International Managers. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and
15
declared effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been filed
with the Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Lead Managers
shall have received the favorable opinion, dated as of Closing Time, of Xxxx X.
Xxxxxxx, Vice President and General Counsel of the Company, in form and
substance satisfactory to counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other International
Managers to the effect set forth in Exhibit A hereto and to such further effect
as counsel to the International Managers may reasonably request.
(c) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx, Carton & Xxxxxxx, counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers with respect to the matters set forth in paragraphs (1),
(2), (5), (6) (solely as to preemptive or other similar rights arising by
operation of law or under the charter or by-laws of the Company), (8) through
(10), inclusive, (13), (15) (solely as to the information in the Prospectuses
under "Description of Common Stock") and the penultimate paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of the jurisdictions other than the federal law of the
United States, upon the opinions of counsel satisfactory to the Lead Managers.
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) OFFICERS' CERTIFICATE. At Closing Time, there shall have not been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, 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 Lead Managers
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) 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, (iii) 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 (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Lead Managers shall have received from Price Waterhouse LLP a
letter dated such date, in form
16
and substance satisfactory to the Lead Managers, together with signed or
reproduced copies of such letter for each of the other International Managers
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectuses.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead Managers shall
have received from Price Waterhouse 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 business days prior to Closing
Time.
(g) APPROVAL OF LISTING. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(h) PURCHASE OF U.S. INITIAL SECURITIES. Contemporaneously with the
purchase by the International Managers of the International Initial Securities
under this Agreement, the U.S. Underwriters shall have purchased the U.S.
Initial Securities under the U.S. Purchase Agreement.
(i) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES. In the
event that the International Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company and any
subsidiary of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Lead Managers shall have
received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
(ii) OPINION OF COUNSEL FOR COMPANY. The favorable opinion of Xxxx X.
Xxxxxxx, Vice President and General Counsel of the Company in form and substance
satisfactory to counsel for the International Managers, dated such Date of
Delivery, relating to the International Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(b) hereof.
(iii) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS. The favorable
opinion of Xxxxxxx, Carton & Xxxxxxx, counsel for the International Managers,
dated such Date of Delivery, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
17
(iv) BRING-DOWN COMFORT LETTER. A letter from Price Waterhouse LLP, in
form and substance satisfactory to the Lead Managers and dated such Date of
Delivery, substantially in the same form and substance as the letter furnished
to the Lead Managers pursuant to Section 5(e) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(j) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery
counsel for the International Managers 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 Lead
Managers and counsel for the International Managers.
(k) TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of International
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
International Option Securities, may be terminated by the Lead Managers by
notice to the Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, 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 INTERNATIONAL MANAGERS. The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager 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), including the Rule 430A Information and Rule 434
Information, if applicable, 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
Prospectuses (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;
18
(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 (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx International),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through Xxxxxxx Xxxxx International expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
International Manager severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act 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), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through Xxxxxxx Xxxxx International
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the International 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 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 Xxxxxxx Xxxxx
International, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties
19
shall be selected by Xxxxxxx Xxxxx International, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. 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.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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 or 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 International Managers on the other hand from the offering of the
International 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 the
International Managers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
20
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International 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
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers 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 International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the International Managers agree that it would not be just
and equitable if the contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the International Managers 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 or 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 International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any 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
International Manager 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
International Manager, 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 International Managers' respective obligations to contribute pursuant to
this Section 7 are several in
21
proportion to the number of International Initial Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS 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 International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Lead Managers may terminate this Agreement,
by notice to the Company, at any time at or prior to 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 Prospectuses, any material adverse
change, or any development which could reasonably be expected to result in a
prospective 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 Lead Managers, 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 American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market 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 other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal, Minnesota or New York authorities.
(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 OF THE INTERNATIONAL MANAGERS. If one or
more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangement for one or more of
the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as
22
may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period;
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting International Managers 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 International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to sell
the International Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-defaulting
International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers or
the Company shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the
term "International Manager" includes any person substituted for an
International Manager under this Section 10.
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 International
Managers shall be directed to the Lead Managers at: Xxxxxxx Xxxxx International,
Ropemaker Place, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, attention of
Equity Capital Markets; with a copy to Xxxxxxx, Carton & Xxxxxxx, 000 X. Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx X. Xxxxxx, Esq.; and
notices to the Company shall be directed to it at Northern States Power Company,
000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, attention of Corporate
Secretary.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the International Managers 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
International Managers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or
23
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 International Managers and the Company and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
International Manager 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 MINNESOTA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO MINNEAPOLIS 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.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the International Managers and the Company in accordance with its terms.
Very truly yours,
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
By:
--------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
XXXXXXX SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXX XXXXXXXX INCORPORATED
XXXXX XXXXXXX INC.
By: XXXXXXX XXXXX INTERNATIONAL
By:
-----------------------------
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
25
SCHEDULE A
Number of
International
Name of International Managers Initial Securities
------------------------------ ------------------
Xxxxxxx Xxxxx International
Xxxxxxx Sachs International. . . . . . . . . . . . . . .
Salomon Brothers International Limited . . . . . . . . .
Xxxx Xxxxxxxx Incorporated . . . . . . . . . . . . . . .
Xxxxx Xxxxxxx Inc. . . . . . . . . . . . . . . . . . . .
------------------
Total. . . . . . . . . . . . . . . . . . . . 900,000
-------
-------
00
XXXXXXXX X
XXXXXXXX XXXXXX POWER COMPANY
(a Minnesota corporation)
900,000 Shares of Common Stock
(Par Value $2.50 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $__________.
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $__________, being an amount
equal to the initial public offering price set forth above less $__________ per
share; provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the International Initial
Securities but not payable on the International Option Securities.
27
EXHIBIT A
FORM OF OPINION OF XXXX X. XXXXXXX
Re: 900,000 Shares of Common Stock, par value $2.50
per share, of Northern States Power Company,
a Minnesota corporation
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of 900,000
shares of Common Stock, par value $2.50 per share, herein called the
"International Securities." In connection therewith I have participated in the
preparation of the proceedings for the issuance and sale of the Securities
including (i) the International Purchase Agreement dated September _____, 1997,
between you and the Company relating to your purchase of the International
Securities, herein called the "Agreement" and (ii) the U.S. Purchase Agreement
dated September _____, 1997 between Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co., Salomon Brothers Inc, Xxxx
Xxxxxxxx Incorporated and Xxxxx Xxxxxxx Inc. and the Company relating to the
issue and sale of the U.S. Securities, herein called the "U.S. Purchase
Agreement." I also have participated in the preparation of or examined the
registration statement and any amendments thereto and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (the "Act"), with respect to the Securities. Capitalized terms
not otherwise defined herein shall have the respective meanings set forth in the
Agreement. My examination has extended to all statutes, records, instruments,
and documents which I have deemed necessary to examine for the purposes of this
opinion.
I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the Agreement
and the U.S. Purchase Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
4. The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization"
A-1
(except for subsequent issuances, if any, pursuant to the Agreement and the U.S.
Purchase Agreement or pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectuses or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses); the shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
5. The Securities to be purchased by the International Managers and the
U.S. Underwriters from the Company have been duly authorized for issuance and
sale to the International Managers and the U.S. Underwriters pursuant to the
Agreement and the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to the Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration set forth in the
Agreement and the U.S. Purchase Agreement, respectively, will be validly issued
and fully paid and non-assessable and no holder of the Securities is or will be
subject to personal liability by reason of being such a holder.
6. The issuance and sale of the Securities by the Company is not subject
to the preemptive or other similar rights of any securityholder of the Company.
7. Each Significant Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best of my knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Significant Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary.
8. The Agreement and the U.S. Purchase Agreement have been duly
authorized, executed and delivered by the Company.
9. The Registration Statement, including any Rule 462(b) Registration
Statement has been declared effective under the 1933 Act; any required filing of
the Prospectuses pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of my knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
A-2
10. The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectuses, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to which I
need express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
11. The documents incorporated by reference in the Prospectuses (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which I need express no opinion), when they were filed
with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
12. If Rule 434 has been relied upon, the Prospectus were not "materially
different," as such term is used in Rule 434, from the prospectuses included in
the Registration Statement at the time it became effective.
13. The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the New York Stock Exchange.
14. To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably by expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Agreement and the U.S. Purchase Agreement or
the performance by the Company of its obligations thereunder.
15. The information in the Prospectuses under "Description of Common
Stock" and "Certain United States Tax Consequences to Non United States
Holders", and in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's charter
and bylaws or legal proceedings, or legal conclusions, has been reviewed by me
and is correct in all material respects.
16. To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectuses that are not described as
required.
17. All descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of my knowledge, there are no franchises,
contracts, indentures, mortgage,
A-3
loan agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
18. To the best of my knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
19. The Minnesota Public Utilities Commission has issued its order
approving the Company's capital structure which order authorizes the issuance of
the Securities, and no other filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under the 1933
Act and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states, as to
which I need express no opinion) is necessary or required in connection with the
due authorization, execution and delivery of the Agreement and the U.S. Purchase
Agreement or for the offering, issuance, sale or delivery of the Securities.
20. The execution, delivery and performance of the Agreement and the U.S.
Purchase Agreement and the consummation of the transactions contemplated in the
Agreement and the U.S. Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its obligations
under the Agreement and the U.S. Purchase Agreement do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in
Section 1(a)(xi) of the Agreement) under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument,
known to me, to which the Company or any subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to me, of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their respective
properties, assets or operations.
21. The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
A-4
22. The Company has good and valid title to all real and fixed property
and leasehold rights owned by it, subject only to: (a) taxes and assessments not
yet delinquent; (b) the lien of the Indenture (as defined in the Agreement); (c)
as to parts of the Company's property, certain easements, conditions,
restrictions, leases, and similar encumbrances which do not affect the Company's
use of such property in the usual course of its business, certain minor defects
in titles which are not material, defects in titles to certain properties which
are not essential to the Company's business; and mechanics' lien claims being
contested or not of record or for the satisfaction or discharge of which
adequate provision has been made by the Company pursuant to the Indenture.
23. The Company has all necessary power under statutory provisions,
franchises (which expire at various dates), or permits to serve the customers in
the jurisdictions where it provides electric and gas service, except in certain
instances that are not material to the Company.
These opinions do not cover title to easements for water flowage purposes
or rights of way for electric and gas transmission and distribution facilities,
steam mains, and telephone lines. However, the Company has the power of eminent
domain in the states in which it operates.
In the course of my participation in the preparation of the Registration
Statement and Prospectuses I made investigations as to the accuracy of certain
of the statements of fact contained therein, I discussed other matters with
officers, employees, and representatives of the Company, and I examined various
corporate records and data. While I do not pass upon or assume responsibility
for, and shall not be deemed to have independently verified, the accuracy and
completeness of the statements contained in the Registration Statement or
Prospectuses (except as to matters set forth in paragraphs 4,15 and 17 above)
nothing has come to my attention that would lead me to believe that the
Registration Statement (including the Rule 430A Information) at the time it
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectuses as of the date of the
Agreement or at the date hereof contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
A-5
In giving my opinion under paragraph 22 above, I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts which
would adversely affect the titles shown on the abstracts. In giving opinions as
to conformity to the laws of States other than Minnesota and as to the
franchises and titles to property of the Company, I have in certain instances
relied upon the opinion of other counsel employed or retained by the Company to
render opinions in respect thereto.
Respectfully submitted,
By:
---------------------------------
Xxxx X. Xxxxxxx
VICE PRESIDENT AND GENERAL COUNSEL
NORTHERN STATES POWER COMPANY
A-6
