EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT FOR DEBT SECURITIES]
WISCONSIN ENERGY CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
Dated the date set
forth in Schedule B hereto
----------
To the Underwriters set forth
on Schedule A hereto
Ladies and Gentlemen:
Wisconsin Energy Corporation, a Wisconsin corporation (the "Company"),
-------
proposes to issue and sell to one or more underwriters (the "Underwriters")
------------
named in Schedule A to this purchase agreement (this "Agreement") the aggregate
---------- ---------
principal amount of one or more new series of its debt securities (the
"Securities") set forth in Schedule B hereto. The Securities will be issued
---------- ----------
under an indenture, dated as of March 15, 1999 (the "Indenture"), between the
---------
Company and Bank One Trust Company, National Association (successor to The First
National Bank of Chicago), as Trustee (the "Trustee"), in one or more series,
-------
which series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series of
the Securities being determined at the time of sale.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as their representative or representatives
identified on Schedule B hereto (the "Representatives") deem advisable after
---------- ---------------
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
---------------------------------------------
represents and warrants to each Underwriter and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company meets
---------------------------------------------
the requirements for use of Form S-3 under the Securities Act of 1933, as
amended (the "1933 Act"). The Company has filed with the Securities and
--------
Exchange Commission (the "Commission") a registration statement on such
----------
Form (having the number(s) set
-2-
forth on Schedule B hereto), which has become effective (including
----------
information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A under the 1933 Act), for
the registration under the 1933 Act of the Securities. Such registration
statement meets the requirements set forth in Rule 415(a)(1)(x) under the
1933 Act and complies in all other material respects with said Rule, and
as amended at the date of this Agreement, including the exhibits thereto,
is hereinafter called the "Registration Statement". The form of
----------------------
prospectus included in such Registration Statement is hereinafter called
the "Basic Prospectus"; the form of prospectus supplement included in
----------------
such Registration Statement, or, if the Company files with the Commission
a subsequent prospectus supplement to be used in connection the issuance
and sale of the Securities under the Prospectus in accordance with Rule
424(b) under the 1933 Act, such subsequent prospectus supplement, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus,
---------------------
as supplemented by the Prospectus Supplement, in the form in which it
shall be filed with the Commission pursuant to Rule 424(b) is hereinafter
called the "Prospectus". Any preliminary form of the Prospectus which has
----------
heretofore been filed pursuant to Rule 424(b) is hereinafter called the
"Preliminary Prospectus". Any reference herein to the Registration
----------------------
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), on or before the date of this Agreement, or the issue date
--------
of the Basic Prospectus, any Preliminary Prospectus or the Prospectus, as
the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the filing of any document under the
1934 Act after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(ii) No Misstatements or Omissions. As of the date hereof, when
-----------------------------
the Prospectus is first filed or transmitted for filing pursuant to Rule
424(b)(2) or 424(b)(5) under the 1933 Act, when, prior to the Closing Date
(as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as then amended as of any such time, and the
Prospectus, as then amended or supplemented as of such time, and the
Indenture will comply in all material respects with the applicable
requirements of the 1933 Act, the Trust Indenture Act of 1939, as amended
(the "1939 Act"), and the 1934 Act and the respective rules thereunder (the
--------
"1934 Act Regulations") and (ii) neither the Registration Statement, as
--------------------
then amended as of such time, nor the Prospectus, as then amended or
supplemented,
-3-
as of such time, will contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1) under the 1939 Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the Registration
Statement and the Prospectus.
(iii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
(iv) Authorization of the Indenture. The Indenture has been duly
-----------------------------------------------
authorized by the Company and duly qualified under the 1939 Act and
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(v) Authorization of the Securities. The Securities have been
-------------------------------
duly authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and entitled
to the benefits of, the Indenture.
(vi) Description of the Securities and the Indenture. The
-----------------------------------------------
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and
will be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement.
-4-
(vii) Absence of Defaults and Conflicts. Neither the Company nor
---------------------------------
any "significant subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each, a "Subsidiary" and collectively, the
----------
"Subsidiaries" and each of which is listed on Schedule C hereto) is in
------------ ----------
violation of its charter or by-laws or 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 as would not have a material
-----------
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
Subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"); and the execution,
-----------------------
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein 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 Prospectus
under the caption "Use of Proceeds") and compliance by the Company with
its obligations hereunder 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,
Repayment Events 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
(through acceleration or otherwise) of all or a portion of such
indebtedness by the Company or any Subsidiary.
(viii) Absence of Further Requirements. No 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 hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required un-
-5-
der the 1933 Act or the rules and regulations of the Commission
thereunder (the "1933 Act Regulations") or state securities laws and
--------------------
except for qualification of the Indenture under the 1939 Act.
(ix) 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").
--------
(b) Officer's Certificates. Any certificate signed by any officer
----------------------
of the Company or any of its Subsidiaries delivered to the Representatives or
to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) 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 Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price and with the terms set forth in Schedule B, the
----------
aggregate principal amount of Securities set forth in Schedule A opposite the
----------
name of such Underwriter, plus any additional amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
-------
certificates for, the Securities shall be made at the offices of the
Representatives, or at such other place as shall be agreed upon by the
Representatives and the Company at 9:00 A.M. (Eastern 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 Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
------------
Payment shall be made to the Company by wire transfer of
immediately available or next day funds as set forth in Schedule B to a bank
----------
account(s) designated by the Company against delivery to or for the account of
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Securities which it has agreed to purchase.
-6-
(c) Denominations; Registration. Certificates for the Securities
---------------------------
shall be in such principal amounts and registered in such names as the
Representatives may request in writing at least one full business day before
the Closing Time. The certificates for the Securities will be made available
for examination and packaging by the Representatives in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
------------------------
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
-----------------------------------------------------
Requests. The Company, subject to Section 3(b), will prepare the
--------
Prospectus in a form approved by the Representatives and file such
Prospectus pursuant to Rule 424(b) within the time prescribed under Rule
424(b) or Rule 430(A)(3), as the case may be) and will notify the
Representatives 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 Prospectus or any amended Prospectus
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
Prospectus 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 Representatives
--------------------
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or revision to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish the Representatives 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
Representatives or counsel for the Underwriters shall object.
-7-
(c) Delivery of Registration Statements. The Company has
-----------------------------------
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, one original signed copy 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 one originally signed copy of all consents and certificates
of experts, and will also deliver to the Representatives, without charge,
a conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇") except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
------------------------
Underwriter, without charge, as many copies of each Preliminary
Prospectus relating to the Securities as such Underwriter 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
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
-----------------------------------------
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the Prospectus. 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 Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein 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
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or
-8-
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
-----------------------
efforts, in cooperation with the Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as the Representatives 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; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified 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.
(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 any such stock exchange or exchanges as are
set forth in Schedule B hereto.
(j) Restriction on Sale of Securities. Until the business day
---------------------------------
following the Closing Time, the Company will not, without the prior
written consent of the Representatives, sell or contract to sell or
announce the offering of, any debt securities of the Company with
characteristics and terms similar to those of the Securities.
(k) Reporting Requirements. The Company, during the period when
----------------------
the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
-9-
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 and the Form T-1) as originally
filed and of each amendment thereto, (ii) the preparation, printing,
reproduction and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters, the Indenture 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 transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the Securities to
the 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 Underwriters in connection therewith, (vi) the printing and delivery to the
Underwriters of copies of each Preliminary Prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (viii) any fees payable in
connection with the rating of the Securities, and (ix) the fees and expenses
incurred in connection with the listing, if applicable, of the Securities on any
such exchange or exchanges as are listed on Schedule B hereto.
----------
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1(a) 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 Prospectus shall
---------------------------------------
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the 1933 Act
Regulations and in accordance with Section 3(a) hereof; and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission.
-10-
(b) Opinion of Counsel for Company. At Closing Time, the
------------------------------
Representatives shall have received the favorable opinion, dated as of
Closing Time, of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to the
effect set forth in Exhibit A-1 hereto and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
-----------
Counsel for the Company, to the effect set forth in Exhibit A-2 hereto,
-----------
each in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters and addressed to the Underwriters and to such further
effect as counsel to the Underwriters may reasonably request. In giving
such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Wisconsin and
the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. 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. In rendering its
opinion, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP may rely as to the exempt status of the
Company under the Public Utility Holding Company Act, upon the opinion of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
-----------------------------------
Representatives shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, the counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters and addressed to the Underwriters with respect to such
matters as the Representatives may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives.
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 not have
---------------------
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Change"), and the Representatives 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 in all material respects, with the
-11-
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, to the knowledge of
such officers, contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
---------------------------
this Agreement, the Representatives shall have received from the Company's
independent public accountants a letter dated such date, in form and
substance satisfactory to the Representatives (substantially in the form of
Exhibit B hereto), together with signed or reproduced copies of such letter
---------
for each of the other Underwriters and addressed to the Underwriters
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 Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
-------------------------
Representatives shall have received from the Company's independent public
accountants a letter, dated as of Closing Time, together with signed or
reproduced copies of such letter for each of the other Underwriters and
addressed to the Underwriters, 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) Maintenance of Rating. At Closing Time, the Securities shall
---------------------
be rated by each of Moody's Investor's Service Inc. and Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. as set forth in Schedule B
----------
hereto. Since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any "nationally recognized statistical
rating agency," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have
publicly announced that is has under surveillance or review its rating of
the Securities or any of the Company's other debt securities.
(h) Approval of Listing. At Closing Time, the Securities shall
-------------------
have been approved for listing on any such exchange or exchanges as are
listed on Schedule B hereto, subject only to official notice of issuance.
----------
(i) Additional Documents. At Closing Time counsel for the
--------------------
Underwriters shall have been furnished with such documents and opinions as
they reasonably may require for the purpose of enabling them to pass upon
the issuance and sale of the Se-
-12-
curities 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
Representatives and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to
-------------------------------
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission; 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 reasonable fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
-13-
or any claim whatsoever based upon any such untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (i) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) and (ii) such
indemnity with respect to any Preliminary Prospectus or the Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, liability, claim,
damage or expense purchased the Securities which are the subject thereof if the
Underwriters did not send or deliver to such person a copy of the Prospectus (or
the Prospectus, as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of the
Securities to such person in any case where such delivery is required by the
1933 Act and the untrue statement or omission of a material fact contained in
any Preliminary Prospectus or the Prospectus was corrected in the Prospectus (or
the Prospectus, as amended or supplemented). This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Indemnification of Company, Directors and Officers. Each
--------------------------------------------------
Underwriter 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) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Promptly after receipt
-------------------------------------
by an indemnified party under this Section 6 of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 6. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to
-14-
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it or other indemnified parties which are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to assume
the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
representing the indemnified parties), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying 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
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
-15-
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by an Underwriter in writing through the
Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall
-16-
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
----------
SECTION 8. Representations, 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
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
--------------------
Agreement, by notice to the Company, at any time at or prior to 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 Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited (other than to provide for an orderly market),
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 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.
-17-
SECTION 10. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
---------
Securities"), the Representatives shall have the right, within 24 hours
----------
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such principal amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased on such date, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement either (i) the Representatives or (ii) the Company
shall have the right to postpone Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter 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
Underwriters shall be directed to the Representatives at the address set forth
in Schedule B; notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇
----------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Chief Financial
Officer.
SECTION 12. Parties. This Agreement shall each inure to the
-------
benefit of and be binding upon the Underwriters, the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and their respective successors
-18-
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 claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters, 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 Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
----------------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
------------------
herein are for convenience only and shall not affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
S-1
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the Underwriters.
Very truly yours,
WISCONSIN ENERGY CORPORATION
By:______________________________
Name:
Title:
S-2
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule B.
----------
[NAME(S) OF REPRESENTATIVE(S)]
By: ____________________________
Authorized Signatory
For itself and the other Under-
writers, if any, named in
Schedule A to the foregoing
----------
Agreement
SCHEDULE A
WISCONSIN ENERGY CORPORATION
Debt Securities
---------------
Principal
Underwriter Amount
----------- ---------
$
------------
Total...................................................... $
============
SCHEDULE B
----------
WISCONSIN ENERGY CORPORATION
Debt Securities
Underwriting Agreement dated _________, 200__
Registration Statement No(s). 333-_______
Title and Certain Terms of Securities:
Title: ______% [Debentures]/[Notes] due _______, _____
Principal amount: $_________
Maturity: ________, ____ (__ years)
Interest Rate: ______%
Interest Payment Dates: _________ and _________
Sinking Fund:
Redemption provisions:
Listing:
Rating: ____ Moody's Investor's Service Inc.:
____ Standard & Poor's Ratings Group:
Purchase Price: ______% of principal amount, plus accrued interest[,
if any,] from , .
Expected Reoffering Price: ___% of principal amount, subject to
change by the Representatives.
Closing Date, Time and Location:
________, 200__ ____ __.M. (Central time)
Offices of:
Settlement and Trading: [Physical certificated form.] [Book-Entry
Only via the Depository Trust Company ("DTC"). The Securities [will]
---
[will not] trade in DTC's Same Day Funds Settlement System.]
Notices: Notices to be given to the Underwriters should be directed
to the Representatives as follows:
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
SCHEDULE C
----------
WISCONSIN ENERGY CORPORATION
List of Significant Subsidiaries
--------------------------------
Exhibit A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit A is
---------
attached.
(i) The Company has been duly incorporated and is validly existing as
a corporation in active status under the laws of the State of Wisconsin.
(ii) The Agreement has been duly authorized, executed and delivered
by the Company.
(iii) The Indenture has been duly authorized, executed and delivered
by the Company, has been duly qualified under the 1939 Act and (assuming the due
authorization, execution and delivery thereof by the Trustee) constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(iv) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed,
issued and delivered by the Company and constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing, and are entitled to the benefits of the Indenture.
(v) The Securities and the Indenture conform as to legal matters in
all material respects to the descriptions thereof contained in the Prospectus.
(vi) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectus 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 our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under
A-1
the 1933 Act and no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
(vii) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements, including any pro forma financial information and
supporting schedules included therein or omitted therefrom and the Statement of
Eligibility on Form T-1 of the Trustee, as to which we express no opinion)
appear on their face to comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act.
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we need express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder.
(ix) To the best of our knowledge, no 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 and the 1939 Act, which have been
obtained or made, or as may be required under the securities or blue sky laws of
the various states, as to which we express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the
Agreement or for the offering, issuance, sale or delivery of the Securities.
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
We have participated in conferences with officers and other
representatives of the Company, representatives of the Underwriters and
representatives of the independent public accountants for the Company at which
conferences the contents of the Prospectus and the Registration Statement and
related matters were discussed and, although we have not independently verified,
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as otherwise indicated above), we advise you
that, on the basis of the foregoing (relying as to materiality to the extent we
deem appropriate upon the opinions of officers and other representatives of the
Company), no facts have come to our attention that lead us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment 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
Prospectus, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to
A-2
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 (it
being understood that we express no comment with respect to the Form T-1 or
the financial statements, including the notes thereto, or any other financial
or statistical data found in or derived from the internal accounting and other
records of the Company and its Subsidiaries set forth or referred to in the
Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its Subsidiaries,
representatives of the Trustee and public officials. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of Wisconsin and the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representatives. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit A is
---------
attached.
(i) The Company has been duly incorporated and is validly existing as
a corporation in active status under the laws of the State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Agreement.
(iii) Each Subsidiary set forth on Schedule C to the Agreement has
----------
been duly incorporated and is validly existing as a corporation or limited
liability company in good standing (or equivalent status) under the laws of the
jurisdiction of its incorporation or formation, and has corporate or limited
liability company power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock or membership interests, as the case may be, of each Subsidiary
has been duly authorized and validly issued, and, in the case of capital stock,
is fully paid and non-assessable (except as otherwise provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially
interpreted) and, to the best of our knowledge, except for the outstanding
shares of preferred stock of Wisconsin Electric Power Company or as otherwise
set forth on Schedule C, is owned by the Company, directly or through
----------
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; to the best of our knowledge, none of the
outstanding shares of capital stock or membership interests, as the case may be,
of any Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary.
(iv) The Agreement has been duly authorized, executed and delivered
by the Company.
(v) The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the 1939 Act and (assuming the due
authorization, execution and delivery thereof by the Trustee) constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(vi) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed,
issued and delivered by the Company and constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing, and are entitled to the benefits of the Indenture.
(vii) The Securities and the Indenture conform as to legal matters in
all material respects to the descriptions thereof contained in the Prospectus.
(viii) The Registration Statement has been declared effective under
the 1933 Act; any required filing of the Prospectus 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 our knowledge, no stop order suspending the effectiveness of the
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.
(ix) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements, including any pro forma financial information and
supporting schedules included therein or omitted therefrom and the Statement of
Eligibility on Form T-1 of the Trustee, as to which we express no opinion)
appear on their face to comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the ▇▇▇▇ ▇▇▇.
(x) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder.
(xi) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(xii) All descriptions in the Registration Statement of written
contracts and other documents to which the Company or its Subsidiaries are a
party are accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, 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
de-
A-2
scribed 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.
(xiii) To the best of our 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
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xiv) To the best of our knowledge, no 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 and the 1939 Act, which have been
obtained or made, or as may be required under the securities or blue sky laws of
the various states, as to which we express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the
Agreement or for the offering, issuance, sale or delivery of the Securities.
(xv) The execution, delivery and performance of the Agreement, the
Indenture and the Securities and the consummation of the transactions
contemplated in the 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 Prospectus under the caption "Use Of
Proceeds") and compliance by the Company with its obligations under the
Agreement, the Indenture and the Securities 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 similar event 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 written contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, known to us, 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, similar events 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 us, 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.
(xvi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the ▇▇▇▇
▇▇▇.
(xvii) The Company is exempt from the provisions of the Public
Utility Holding Company Act of 1935, as amended (the "Public Utility Holding
----------------------
Company Act"), except Section 9(a)(2) thereof relating to the acquisition of
-----------
securities of other public utility companies.
A-3
We have participated in conferences with officers and other
representatives of the Company, representatives of the Underwriters and
representatives of the independent public accountants for the Company at which
conferences the contents of the Prospectus and the Registration Statement and
related matters were discussed and, although we have not independently verified,
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as otherwise indicated above), we advise you
that, on the basis of the foregoing (relying as to materiality to the extent we
deem appropriate upon the opinions of officers and other representatives of the
Company), no facts have come to our attention that lead us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment 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
Prospectus, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we express no comment with respect to the Form T-1 or the financial
statements, including the notes thereto, or any other financial or statistical
data found in or derived from the internal accounting and other records of the
Company and its Subsidiaries set forth or referred to in the Registration
Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its Subsidiaries,
representatives of the Trustee and public officials. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of Wisconsin and the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representatives. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
A-4
Exhibit B
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
------------------------------------------------------------
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by reference
in the Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of the
Company for the three month periods ended ____________ and ____________ ,
the three and six month periods ended ____________ and ____________ and the
three and nine month periods ended ____________ and ____________, included
or incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials") , a reading of the
---------------
unaudited interim consolidated financial statements of the Company for the
_____-month periods ended ____________ and ____________, included in the
Registration Statement and the Prospectus (the "____-month financials"), a
- -----------------
reading of the latest available unaudited interim consolidated financial
statements of the Company, a reading of the minutes of all meetings of the
stockholders and directors of the Company and its subsidiaries and the
Audit Committee of the Company's Board of Directors and any subsidiary
committees since day after end of last audited period, inquiries of certain
officials of the Company and its subsidiaries responsible for financial and
accounting matters, a review of interim financial information in accordance
with standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"), with respect to the description of relevant periods
------
and such other inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them to
be in conformity with generally accepted accounting principles;
B-1
(B) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations applicable to unaudited interim financial
statements included in registration statements or any material
modifications should be made to the _____-month financials included in
the Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles;
(C) at ____________ and at a specified date not more than five
days prior to the date of this Agreement, there was any change in the
Shareholders' Equity of the Company and its subsidiaries or any
decrease in the Total Current Assets of the Company and its
subsidiaries or any increase in the Long- Term Debt of the Company and
its subsidiaries, in each case as compared with amounts shown in the
latest balance sheet included in the Registration Statement, except in
each case for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
(D) for the period from ____________ to ____________ and for the
period from ____________ to a specified date not more than five days
prior to the date of this Agreement, there was any decrease in Net
Sales, Earnings Before Extraordinary Loss or Net Earnings, in each
case as compared with the comparable period in the preceding year,
except in each case for any decreases that the Registration Statement
discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and
a reading of the Selected Financial Data included in the Registration
Statement and a reading of the financial statements from which such data
were derived, nothing came to our attention that caused us to believe that
the Selected Financial Data included in the Registration Statement do not
comply as to form in all material respects with the disclosure requirements
of Item 301 of Regulation S-K, that the amounts included in the Selected
Financial Data are not in agreement with the corresponding amounts in the
audited consolidated financial statements for the respective periods or
that the financial statements not included in the Registration Statement
from which certain of such data were derived are not in conformity with
generally accepted accounting principles;
(iv) we have compared the information in the Registration Statement
under selected captions with the disclosure requirements of Regulation S-K
and, on the basis of limited procedures specified herein, nothing came to
our attention that caused us to believe that this information does not
comply as to form in all material respects with the disclosure requirements
of Items 302, 402 and 503(d), respectively, of Regulation S-K;
B-2
(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Company for the most
recent period that have not been included in the Registration Statement and
a review of such financial statements in accordance with SAS No. 71,
nothing came to our attention that caused us to believe that the unaudited
amounts for Net Sales, Net Earnings or Shareholders' Equity for the most
recent period do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited consolidated financial
statements;
[(vi) we are unable to and do not express any opinion on the Pro
Forma Combining Statement of Operations (the "Pro Forma Statement")
included in the Registration Statement or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statement;
however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed a review in accordance with SAS No. 71 of the
financial statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis
for their determination of the pro forma adjustments and whether the
Pro Forma Statement complies as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-
X;
(D) proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the Pro Forma
Statement;
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statement included in the Registration Statement does
not comply as to form in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements;] and
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement, which are specified
herein, and have compared certain of such items with, and have found such
items to be in agreement with, the accounting and financial records of the
Company.
B-3