EXHIBIT 1-A
OTTER TAIL CORPORATION
$
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[DEBT SECURITIES]
UNDERWRITING AGREEMENT
, 2002
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[NAMES OF UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
Otter Tail Corporation, a Minnesota corporation (the COMPANY), hereby
confirms its agreement with the several Underwriters (as defined below) as
follows:
1. Purchase and Sale. Upon 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 of the several firms or corporations
named in Schedule I hereto and any firm or corporation substituted as provided
in Section 9 hereof as if such firm or corporation had originally been a party
to this Agreement (each, an UNDERWRITER), and each Underwriter agrees, at the
time and place herein specified, severally and not jointly, to purchase from the
Company, at a purchase price of [____]% of the principal amount thereof, the
respective principal amounts of the Company's [Debt Securities] (the SECURITIES)
set forth opposite such Underwriter's name on Schedule I hereto and having the
terms set forth in the Prospectus (as defined in Section 2(a) hereof). The
Securities will be issued pursuant to an Indenture (For Unsecured Debt
Securities) dated as of November 1, 1997 (the INDENTURE) between the Company and
U.S. Bank National Association (formerly First Trust National Association), as
trustee (the Trustee).
2. Representations and Warranties of Company. The Company represents
and warrants to, and covenants and agrees with, the several Underwriters that:
(a) Filing of Registration Statement and any Preliminary
Prospectus with SEC. The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the 1933 ACT), and has filed with
the Securities and Exchange Commission
(the SEC) the Registration Statement (as defined below) and each Preliminary
Prospectus (as defined below) relating to the Securities, if any, required to be
filed pursuant to Rule 424 under the 1933 Act; and the Registration Statement
has been declared effective by the SEC under the 1933 Act and meets the
requirements set forth in paragraph (a)(1)(ix) or (a)(1)(x) of Rule 415 under
the 1933 Act and complies in all other material respects with such Rule 415. No
stop order suspending the effectiveness of the Registration Statement or any
part thereof has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or, to the best of the Company's knowledge,
threatened by the SEC, and any request on the part of the SEC for additional
information in connection with the Registration Statement has been complied with
by the Company. For purposes of this Agreement, the following terms used herein
shall have the following meanings: (i) REGISTRATION STATEMENT shall mean the
registration statement on Form S-3 (No. 333-[_____]) filed by the Company with
the SEC for the registration under the 1933 Act of debt securities of the
Company, including the Securities, as amended and supplemented to the date of
this Agreement and including the exhibits thereto, and shall be deemed to
include the Incorporated Documents (as defined below) as of the date hereof;
(ii) INCORPORATED DOCUMENTS shall mean the documents filed by the Company with
the SEC under the Securities Exchange Act of 1934, as amended (the 1934 ACT),
that are, or are deemed to be, incorporated by reference in the Registration
Statement, the Preliminary Prospectus or the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act; (iii) PRELIMINARY PROSPECTUS shall mean (A) any
prospectus included in the Registration Statement prior to the initial Effective
Date (as defined below), or (B) any supplement to the prospectus included in the
Registration Statement at the initial Effective Date, as such prospectus may be
amended or supplemented as of the date thereof, used in connection with the
offering and sale of the Securities (other than making confirmations of sales of
the Securities) filed with the SEC pursuant to Rule 424 under the 1933 Act, and
shall in each case be deemed to include the Incorporated Documents; (iv)
PROSPECTUS shall mean the prospectus included in the Registration Statement at
the initial Effective Date, as such prospectus may be amended or supplemented
(including by Incorporated Documents) as of the date hereof, including by a
supplement thereto specifying the terms of the Securities and the plan of
distribution thereof (the PROSPECTUS SUPPLEMENT), as first filed with the SEC
pursuant to Rule 424(b) under the 1933 Act; and (v) EFFECTIVE DATE shall mean
the later of (x) the date or time that the Registration Statement or any
post-effective amendment thereto was declared effective by the SEC under the
1933 Act and (y) the time when the Company filed its latest Annual Report on
Form 10-K with the SEC under the 1934 Act. For purposes of this Agreement, the
words "amend," "amendment," "amended," "supplement" or "supplemented" with
respect to the Registration Statement or the Prospectus shall mean (i)
amendments or supplements to the Registration Statement or the Prospectus,
respectively, and (ii) Incorporated Documents, in each case filed with the SEC
after the date hereof and prior to the completion of the distribution of the
Securities; provided, however, that any supplement to the Prospectus filed with
the SEC pursuant to Rule 424(b) under the 1933 Act with respect to an offering
of securities of the Company other than the Securities shall not be deemed to be
a supplement to, or a part of, the Prospectus.
(b) Registration Statement; Prospectus; Incorporated
Documents. (i) The Registration Statement, at the Effective Date, any
Preliminary Prospectus, at the time it was filed with the SEC pursuant to Rule
424(b) under the 1933 Act and when delivered to the Underwriters for their use
in marketing the Securities, and the Prospectus, at the time it is filed with
the SEC pursuant to Rule 424(b) under the 1933 Act and when delivered to the
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Underwriters for their use in making confirmations of sales of the Securities,
complied and will comply, as the case may be, in all material respects with the
applicable requirements of the 1933 Act, the Trust Indenture Act of 1939, as
amended (the 1939 ACT), and, in each case, the rules and regulations of the SEC
thereunder; (ii) the Registration Statement, at the Effective Date, did not
include 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) the Prospectus, at the time it is filed with the SEC pursuant
to Rule 424(b) under the 1933 Act, when delivered to the Underwriters for their
use in making confirmations of sales of the Securities, and at the Closing Date
(as defined herein) will not and any Preliminary Prospectus, at the time it was
filed with the SEC pursuant to Rule 424(b) under the 1933 Act and when delivered
to the Underwriters for their use in marketing the Securities, did not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (iv) each
Incorporated Document, at the time it was or is filed with the SEC pursuant to
the 1934 Act, complied and will comply, as the case may be, in all material
respects with the applicable requirements of the 1934 Act and the rules and
regulations of the SEC thereunder and, at such times, did not contain and will
not contain, as the case may be, an untrue statement of a material fact and did
not omit and will not omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that, in the case of clauses (i), (ii)
and (iii) above, the Company makes no representation or warranty as to
information furnished by the Underwriters in writing to the Company expressly
for use in the Prospectus, which for purposes of this Agreement shall be deemed
to consist solely of the statements in paragraphs [ ] under the caption
"Underwriting" in the Prospectus Supplement (collectively, the UNDERWRITER
INFORMATION).
(c) Indenture. The Indenture has been duly qualified under the
1939 Act, has been duly authorized, executed and delivered by the Company, and
constitutes a valid and binding instrument of the Company enforceable against
the Company in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) requirements of reasonableness, good faith and fair dealing (such
exceptions, collectively, the EXCEPTIONS); and the Indenture will conform in all
material respects to the description thereof contained in the Prospectus.
(d) Securities. The Securities have been duly authorized and,
at the Closing Date (as defined herein), will have been duly executed by the
Company, and, when authenticated in the manner provided for in the Indenture,
issued and delivered against payment therefor pursuant to this Agreement, will
constitute valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as may be limited by the
Exceptions, and will be entitled to the benefits of the Indenture; and the
Securities will conform in all material respects to the description thereof
contained in the Prospectus.
(e) Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
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(f) Due Incorporation and Qualification of the Company. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Minnesota, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and to execute and deliver, and perform its
obligations under, or as contemplated by, this Agreement, the Indenture and the
Securities; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify or be in good standing
would not reasonably be expected to have a material adverse effect on the
financial condition, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole (a MATERIAL ADVERSE EFFECT).
(g) Due Incorporation and Qualification of Subsidiaries. Each
significant subsidiary (as defined in Rule 405 under the 1933 Act (a SIGNIFICANT
SUBSIDIARY)) of the Company has been duly incorporated or formed and is validly
existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or formation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus; each such subsidiary is duly qualified to do
business as a foreign corporation or limited liability company in good standing
in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the failure to
so qualify or be in good standing would not reasonably be expected to have a
Material Adverse Effect; and all of the issued and outstanding common stock or
other equity interests of each subsidiary (as defined in Rule 405 under the 1933
Act (a SUBSIDIARY)) of the Company have been duly authorized and validly issued
and are fully paid and nonassessable, and all of such common stock and such
other equity interests are owned by the Company, directly or indirectly, free
from liens, encumbrances and defects of title.
(h) Material Changes. Neither the Company nor any of its
Significant Subsidiaries has sustained since the date of the latest audited
consolidated financial statements incorporated by reference in the Prospectus
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
described in the Prospectus; and, since the respective dates as of which
information is given in the Prospectus, there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, stockholders'
equity or consolidated results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as described in the Prospectus.
(i) No Conflicts; Minnesota Commission Order in Full Force and
Effect; No Consents Required. The issuance and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities, the
Indenture and this Agreement, and the consummation of the transactions herein
and therein contemplated, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Significant Subsidiaries is a
party or by which the Company or any of its Significant Subsidiaries is bound or
to which any of the property or assets of the
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Company or any of its Significant Subsidiaries is subject except for such
conflicts, breaches or violations that, individually or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Company's or any of its Significant
Subsidiaries' articles of incorporation, bylaws or organizational or other
constituent documents, each as amended (collectively, the ORGANIZATIONAL
DOCUMENTS), or any statute, rule, regulation or other law, or any order or
judgment, of any court or governmental agency or body having jurisdiction over
the Company or any of its Significant Subsidiaries or any of their respective
properties; the Public Utilities Commission of Minnesota has issued its final
order (the MINNESOTA COMMISSION ORDER) authorizing, among other things, (i) the
Company's proposed capital structure after the issuance and sale by the Company
of the Securities and (ii) the issuance and sale of the Securities by the
Company on terms and conditions not inconsistent with the terms and conditions
set forth in or contemplated by this Agreement, and such Minnesota Commission
Order is in full force and effect and not the subject of any appeal or other
proceeding and is sufficient to authorize the transactions contemplated by this
Agreement; and no other filing with, or consent, approval, authorization, order,
registration or qualification of, any court or governmental agency or body
having jurisdiction over the Company or any of its properties is required for
the issuance and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement and the Indenture, except such
as have been obtained under the 1933 Act and the 1939 Act and such filings,
consents, approvals, authorizations, orders, registrations or qualifications as
may be required under state securities or blue sky laws in connection with the
purchase and distribution of the Securities by the Underwriters.
(j) Capital Stock. The Company has an authorized
capitalization as set forth (or incorporated by reference) in the Prospectus and
all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable.
(k) No Defaults. The Company and its Significant Subsidiaries
are not in violation of the Organizational Documents or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Significant Subsidiaries is subject except for such
violations or defaults that, individually or in the aggregate, would not have a
Material Adverse Effect.
(l) Litigation. Other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its Significant Subsidiaries is a party or of which any property of the
Company or any of its Significant Subsidiaries is the subject that would
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated.
(m) Financial Statements. The consolidated financial
statements incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules
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and notes, present fairly the financial condition of the Company and its
consolidated subsidiaries at the dates indicated and the consolidated statements
of income, common shareholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods therein specified; said financial
statements comply as to form in all material respects with the 1933 Act, the
1934 Act and the rules and regulations of the SEC thereunder; said financial
statements have been prepared in conformity with United States generally
accepted accounting principles (GAAP) applied on a consistent basis throughout
the periods involved, except as stated therein; the supporting schedules, if
any, incorporated by reference in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein; and the
selected financial data and the summary financial information included or
incorporated by reference in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement.
(n) Independent Public Accountants. Deloitte & Touche LLP (the
ACCOUNTANTS), who have audited certain financial statements of the Company and
its subsidiaries, are independent public accountants as required by the 1933 Act
and the rules and regulations of the SEC thereunder.
(o) Environmental Matters. Except as described in the
Prospectus, each of the Company and its Significant Subsidiaries (i) is in
compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (ENVIRONMENTAL LAWS), (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except where such non-compliance with
Environmental Laws or failure to receive, or comply with the terms and
conditions of required permits, licenses or approvals, would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
3. Offering; Delivery of Securities.
(a) Offering. The Underwriters have advised the Company that
they propose to make a public offering of the Securities as soon after the
effectiveness of this Agreement as in their judgment is advisable. The
Underwriters have further advised the Company that they will offer the
Securities to the public at the initial public offering price specified in the
Prospectus plus accrued interest thereon, if any, from the Closing Date to the
date of delivery of the Securities.
(b) Delivery of Securities. Delivery of the Securities against
payment of the purchase price therefor in immediately available funds by wire
transfer, shall be made prior to 1:00 P.M., New York City time, on ,
2002 in book-entry form through the facilities of The Depository Trust Company,
New York, New York (DTC), or at such other time and date as may be agreed upon
in writing by the Company and [Name of Lead Underwriter]. Delivery of the
documents required by Section 5 hereof with respect to the Securities shall be
made at such time and date at the offices of Pillsbury Winthrop LLP
(UNDERWRITERS' COUNSEL), or
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at such other location as may be agreed upon in writing by the Company and [Name
of Lead Underwriter]. For purposes of this Agreement, CLOSING DATE shall mean
the hour and date of such delivery and payment.
The Securities shall be issued in the form of a global
certificate registered in the name of "Cede & Co.," as nominee of DTC. For the
purpose of expediting the Representative's checking of the Securities by the
Underwriters, the Company agrees to make the Securities available to the
Underwriters for such purpose at the offices of DTC (or a custodian thereof) in
New York, New York, not later than 1:00 P.M., New York City time, on the
business day preceding the Closing Date or at such other time and place as may
be agreed upon by the Company and [Name of Lead Underwriter]. It is understood
that each Underwriter has authorized [Name of Lead Underwriter] to execute this
Agreement on its behalf and, 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. [Name of Lead Underwriter], individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Date but such
payment shall not relieve such Underwriter from its obligations hereunder.
4. Covenants of Company. The Company covenants and agrees with
the several Underwriters that:
(a) Filing of Prospectus. The Company will promptly transmit
copies of the Prospectus, and any amendments or supplements thereto, to the SEC
for filing pursuant to Rule 424(b) under the 1933 Act.
(b) Copies of Registration Statement and Prospectus; Notice of
Stop Orders. The Company will deliver to the Underwriters (i) one conformed copy
of the Registration Statement as originally filed, including copies of exhibits
thereto (other than any exhibits incorporated by reference therein), (ii)
conformed copies of any amendments to the Registration Statement, including
copies of the Incorporated Documents (other than exhibits thereto), and (iii) a
conformed copy of each consent included or incorporated by reference in, or
filed as an exhibit to, the Registration Statement as so amended; the Company
will deliver to the Underwriters as soon as practicable after the date of this
Agreement as many copies of the Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act; the Company will promptly
advise the Underwriters of the issuance of any stop order under the 1933 Act
with respect to the Registration Statement (as amended) or the institution of
any proceedings therefor, or the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, of which the Company shall have received notice or
otherwise have knowledge prior to the completion of the distribution of the
Securities; and the Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to secure the prompt removal thereof.
(c) Filing of Amendments or Supplements. During the period
when a prospectus relating to any of the Securities is required to be delivered
under the 1933 Act by any Underwriter or any dealer, the Company will not file
any amendment or supplement to the
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Registration Statement, the Prospectus (or any other prospectus relating to the
Securities filed pursuant to Rule 424(b) under the 1933 Act that differs from
the Prospectus as filed pursuant to such Rule 424(b)) or any Incorporated
Document to which the Underwriters or Underwriters' Counsel shall reasonably
object.
(d) Compliance with 1933 Act. During the period when a
prospectus relating to any of the Securities is required to be delivered under
the 1933 Act by any Underwriter or any dealer, the Company will comply, at its
own expense, with all requirements imposed by the 1933 Act, as now and hereafter
amended, and by the rules and regulations of the SEC thereunder, as from time to
time in force, so far as necessary to permit the continuance of sales of or
dealing in the Securities during such period in accordance with the provisions
hereof and as contemplated by the Prospectus.
(e) Certain Events and Amendments or Supplements. If, during
the period when a prospectus relating to any of the Securities is required to be
delivered under the 1933 Act by any Underwriter or any dealer, (i) any event
relating to or affecting the Company or of which the Underwriters shall advise
the Company in writing shall occur as a result of which, in the opinion of the
Underwriters or in the opinion of the Company, the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or (ii) it
shall be necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the 1933 Act, the 1934 Act or the 1939 Act or the
rules and regulations of the SEC thereunder, the Company will promptly at its
expense prepare and furnish to the Underwriters a reasonable number of copies of
such amendment or supplement that will correct such statement or omission or
effect such compliance.
(f) Blue Sky Qualifications. During the period when a
prospectus relating to any of the Securities is required to be delivered under
the 1933 Act by any Underwriter or any dealer, the Company will furnish such
proper information as may be lawfully required and otherwise cooperate in
qualifying the Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as the Underwriters may reasonably designate and will
file and make in each year such statements or reports as are or may be
reasonably required by the laws of such jurisdictions; provided, however, that
the Company shall not be required to qualify as a foreign corporation, qualify
as a dealer in securities or file a general consent to service of process under
the laws of any jurisdiction.
(g) Earning Statement. In accordance with Rule 158 under the
1933 Act, the Company will make generally available to its security holders and
to holders of the Securities, as soon as practicable, an earning statement
(which need not be audited) in reasonable detail covering the 12 months
beginning not later than the first day of the month next succeeding the month in
which occurred the effective date (within the meaning of Rule 158 under the ▇▇▇▇
▇▇▇) of the Registration Statement.
(h) Exchange Act Documents; Ratings Notification. During the
period when a prospectus relating to any of the Securities is required to be
delivered under the 1933 Act by any Underwriter or any dealer, the Company will
file promptly all documents required to be filed
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with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act; and
the Company will promptly notify the Underwriters of any written notice given to
the Company by any "nationally recognized statistical rating organization"
within the meaning of Rule 436(g)(2) under the 1933 Act (a RATING AGENCY) of any
decrease in any rating of any securities of the Company, any intended decrease
(including any "credit watch" or "negative outlook" status) in any such rating
or any intended change in any such rating that does not indicate the direction
of the possible change of any such rating, in each case by any such Rating
Agency.
(i) No Issuance Period. During the period beginning from the
date of this Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Securities, as determined by the
Underwriters, and (ii) 30 days after the Closing Date, the Company will not,
without the prior written consent of [Name of Lead Underwriter], offer for sale,
sell or enter into any agreement to sell, or otherwise dispose of, any debt
securities of the Company with a maturity of greater than one year, except for
the Securities.
(j) Payment of Expenses. Whether or not any sale of the
Securities is consummated, the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Company (COMPANY COUNSEL), and the Accountants in connection
with the registration of the Securities under the 1933 Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments or supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and any dealers; (ii) the cost of printing or
producing this Agreement, the Indenture, any blue sky memorandum, closing
documents (including any compilations thereof) and other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 4(f) hereof, including
the reasonable fees and disbursements of Underwriters' Counsel in connection
with such qualification and in connection with any such blue sky memorandum;
(iv) any fees charged by a Rating Agency for rating the Securities; (v) any
filing fees incident to, and the reasonable fees and disbursements of
Underwriters' Counsel in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
disbursements of the Trustee and any agent of the Trustee and the fees and
disbursements of their counsel in connection with the Indenture and the
Securities; and (viii) all other costs and expenses incident to the performance
of the Company's obligations hereunder that are not otherwise specifically
provided for in this Section 4(j); but, if for any reason the Securities are not
delivered by or on behalf of the Company as provided herein (other than due to a
default by the Underwriters), the Company will reimburse the Underwriters for
all out-of-pocket expenses, including reasonable fees and disbursements of
Underwriters' Counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to the Underwriters with
respect to the Securities except as provided in this Section 4(j) and Section 6
hereof. It is understood that, except as provided in this Section 4(j) and
Section 6 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of Underwriters' Counsel and any advertising expenses in
connection with any offers the Underwriters may make.
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5. Conditions to Underwriters' Obligations. The obligations of
the Underwriters under this Agreement shall be subject to the condition that all
representations and warranties of the Company contained in this Agreement are,
at and as of the Closing Date, true and correct, the condition that the Company
shall have performed all of its obligations hereunder on or prior to the Closing
Date and the following additional conditions:
(a) Filing of Prospectus with SEC; No Stop Order; Minnesota
Commission Order in Full Force and Effect. The Prospectus, and any supplements
thereto, shall have been filed with the SEC within the time period prescribed
for such filing by Rule 424(b) under the 1933 Act and in accordance with Section
4(a) hereof; all requests for additional information on the part of the SEC in
connection with the Registration Statement shall have been complied with to the
reasonable satisfaction of the Underwriters; 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 SEC; and the Minnesota Commission Order shall be in full force
and effect and such order shall not have been amended or modified to include
conditions or restrictions which the Underwriters in good faith determine to be
unduly burdensome.
(b) Opinion of Underwriters' Counsel. At the Closing Date,
Underwriters' Counsel shall have furnished to the Underwriters an opinion, dated
the Closing Date, with respect to the validity of the Securities, the Prospectus
and the Registration Statement and such other related matters as the
Underwriters may reasonably request, and Underwriters' Counsel shall have
received such documents and information as it may reasonably request to enable
it to pass upon such matters. In rendering such opinion, such counsel (A) may
rely as to matters involving the application of the laws of the State of
Minnesota upon the opinion of Company Counsel rendered pursuant to Section
5(c)(i) hereof, and (B) may rely as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials.
(c) Opinions of Counsel to the Company. At the Closing Date,
(i) Company Counsel shall have furnished to the Underwriters an opinion, dated
the Closing Date, in form and substance satisfactory to the Underwriters, with
respect to clauses (i), (iv) -- (xi), inclusive, below, and (ii) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, General Counsel and Corporate Secretary of the Company, shall have
furnished to the Underwriters an opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters, with respect to clauses (ii), (iii)
and (xii) below:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to execute
and deliver, and perform its obligations under, this Agreement, the
Indenture and the Securities; the Company is duly qualified as a
foreign corporation to transact business and is in good standing in the
States of North Dakota and South Dakota; and the Company is subject as
to rates, issuances of securities, service and other matters to the
jurisdiction of certain authorities as and to the extent stated in the
Company's Annual Report on Form 10-K for the year ended December 31,
2001 under the caption "Business--Narrative Description of
Business--Electric--General Regulation;"
10
(ii) each Significant Subsidiary of the Company has been duly
incorporated or formed and is validly existing as a corporation or
limited liability company in good standing under the laws of the
jurisdiction of its incorporation or formation, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus; each such subsidiary is duly qualified to
do business as a foreign corporation or limited liability company in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified
or to be in good standing would not reasonably be expected to have a
Material Adverse Effect; and all of the issued and outstanding common
stock or other equity interests of each Significant Subsidiary of the
Company have been duly authorized and validly issued and are fully paid
and nonassessable, and all of such common stock and such other equity
interests are owned by the Company, directly or indirectly, free from
liens, encumbrances and defects of title;
(iii) to the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the Company or any
of its Significant Subsidiaries is the subject that would reasonably be
expected to, individually or in the aggregate, have a Material Adverse
Effect, and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated;
(iv) the Company has an authorized capitalization as set forth
(or incorporated by reference) in the Prospectus;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Securities have been duly authorized and executed by
the Company and, when authenticated in the manner provided for in the
Indenture, and issued and delivered against payment therefor pursuant
to this Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
except as may be limited by the Exceptions, and are entitled to the
benefits of the Indenture; and the Securities conform in all material
respects to the description thereof in the Prospectus;
(vii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding instrument
of the Company enforceable against the Company in accordance with its
terms, except as may be limited by the Exceptions; the Indenture
conforms in all material respects to the description thereof in the
Prospectus; and the Indenture has been duly qualified under the 1939
Act;
(viii) the issuance and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities,
the Indenture and this Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with
11
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its Significant Subsidiaries is
a party or by which the Company or any of its Significant Subsidiaries
is bound or to which any of the property or assets of the Company or
any of its Significant Subsidiaries is subject, except for such
conflicts, breaches or violations that, individually or in the
aggregate, would not result in a Material Adverse Effect, nor will such
actions result in any violation of the provisions of the Organizational
Documents or any statute, rule, regulation or other law, or any order
or judgment known to such counsel, of any court or governmental agency
or body having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their respective properties;
(ix) the Minnesota Commission Order is, to the best of such
counsel's knowledge, in full force and effect and not the subject of
any appeal or other proceeding and no other filing with, or consent,
approval, authorization, order, registration or qualification of, any
court or governmental agency or body having jurisdiction over the
Company or any of its properties is required for the issuance and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture, except
such as have been obtained under the 1933 Act and the 1939 Act and such
filings, consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(x) the Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the SEC pursuant to Rule
424(b) under the 1933 Act (except in each case as to financial
statements and other financial and statistical data contained or
incorporated by reference therein, upon which such counsel need not
pass), complied as to form in all material respects with the
requirements of the 1933 Act and the 1939 Act and the respective rules
and regulations of the SEC thereunder; each Incorporated Document as
originally filed pursuant to the 1934 Act (except as to financial
statements and other financial and statistical data contained or
incorporated by reference therein, upon which such counsel need not
pass) complied as to form when so filed in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
SEC thereunder; the Registration Statement has become effective under
the 1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for a stop order with respect thereto
are threatened or pending under Section 8 of the 1933 Act; and nothing
has come to the attention of such counsel that has caused it to believe
that the Registration Statement (except as to financial statements and
other financial and statistical data contained or incorporated by
reference therein, upon which such counsel need not pass), at the
Effective Date, 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 (except as to financial statements and other financial and
statistical data contained or incorporated by reference therein, upon
which such counsel need not pass), at the date hereof or on the Closing
Date, included or includes any untrue statement of a material fact or
omitted or omits to state a material fact
12
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xi) such counsel does not know of any legal or governmental
proceeding or any franchise, contract or other document required to be
described in, or filed as an exhibit to, the Registration Statement or
incorporated by reference in the Prospectus that is not so described or
filed or incorporated by reference as required; and
(xii) the statements included or incorporated by reference in
the Prospectus describing statutes, legal and other governmental
proceedings and franchises, material contracts or other agreements
relating to the Company are accurate in all material respects and
fairly summarize such matters.
In rendering such opinions, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials. References to the Registration Statement and the Prospectus in
this Section 5(c) shall be deemed to include amendments or supplements thereto.
(d) Letter of Accountants. On the date of this Agreement, and
at the Closing Date, the Accountants shall have furnished to the Underwriters
letters, dated the date of this Agreement and the Closing Date, respectively, in
form and substance satisfactory to the Underwriters, confirming that they are
independent accountants within the meaning of the 1933 Act and the rules and
regulations of the SEC thereunder with respect to the Company and its
subsidiaries and stating in effect that:
(i) in the opinion of the Accountants, the consolidated
financial statements and schedules included or incorporated by
reference in the Prospectus and audited by them comply as to form in
all material respects with the applicable accounting requirements of
the 1933 Act and the 1934 Act and the respective rules and regulations
of the SEC thereunder; and
(ii) on the basis of a reading of the unaudited consolidated
financial statements included or incorporated by reference in the
Prospectus and the latest available interim unaudited consolidated
financial statements of the Company, the performance of the procedures
specified by the American Institute of Certified Public Accountants for
a review of any such financial statements as described in Statement on
Auditing Standards No. 71, inquiries of officials of the Company
responsible for financial and accounting matters and a reading of the
minutes of meetings of the stockholders and the Board of Directors of
the Company and the Audit Committees thereof through a specified date
not more than five days prior to the date of the applicable letter,
nothing came to the attention of the Accountants that caused them to
believe that: (A) any material modification should be made to the
unaudited consolidated financial statements included or incorporated by
reference in the Prospectus for them to be in conformity with generally
accepted accounting principles or any such financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act or the 1934 Act and the
respective rules and regulations of the SEC thereunder; (B) for the
13
period from the date of the latest unaudited consolidated financial
statements included or incorporated by reference in the Prospectus
through the date of the most recent available consolidated financial
statements of the Company, there were any decreases in operating
revenues, operating income, other income or net income as compared with
the comparable period of the preceding year; or (C) at the date of the
most recent available financial statements of the Company and at a
subsequent date not more than five days prior to the date of such
letter, there was any change in the capital stock or long-term debt of
the Company or any decrease in its net assets as compared with the
amounts shown in the most recent consolidated balance sheet included or
incorporated by reference in the Prospectus, except in all instances
for changes or decreases that the Prospectus discloses have occurred or
may occur, or for changes or decreases that are described in such
letter that are reasonably satisfactory to the Underwriters.
Such letter shall also cover such other matters as the Underwriters shall
reasonably request, including but not limited to the Company's "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Prospectus and any other
information of an accounting, financial or statistical nature included or
incorporated by reference therein.
(e) No Material Changes. (i) Neither the Company nor any of
its Significant Subsidiaries shall have sustained, since the date of the most
recent audited consolidated financial statements included or incorporated by
reference in the Prospectus, any loss or interference with their business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth in the Prospectus, and (ii) since the respective
dates as of which information is given in the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or consolidated results of operations of the Company and its subsidiaries
taken as a whole, otherwise than as set forth in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of
[Name of Lead Underwriter] so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
(f) Ratings; No Downgrading of Ratings or Credit Review. The
Underwriters shall have received evidence reasonably satisfactory to them that
▇▇▇▇▇'▇ Investors Service and Standard & Poor's have publicly assigned to the
Securities ratings of [ ] and [ ], respectively, which ratings shall be in full
force and effect at the Closing Date; and, on or after the date of this
Agreement, (i) no downgrading shall have occurred in the rating of the Company's
unsecured debt securities by any Rating Agency and (ii) no Rating Agency shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Company's unsecured debt securities.
(g) Nonoccurrence of Certain Events. On or after the date of
this Agreement, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally by the SEC,
any national securities exchange or The Nasdaq Stock Market; (ii) a suspension
or material limitation in trading in the Company's securities by the
14
SEC, any national securities exchange or The Nasdaq Stock Market; (iii) a
general moratorium on commercial banking activities declared by Federal or New
York State authorities or a material disruption in commercial banking services
in the United States; or (iv) a material disruption in securities settlement or
clearance services in the United States or any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other international or national calamity or crisis, in each case,
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iv), in the judgment of the [Name of Lead Underwriter], makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus.
(h) Officers' Certificate. At the Closing Date, the Company
shall have furnished or caused to be furnished to the Underwriters a certificate
of the Chief Executive Officer of the Company and the principal financial or
accounting officer of the Company as to the accuracy of the representations and
warranties of the Company herein (taking into account any amendments or
supplements to the Registration Statement or the Prospectus) on and as of the
Closing Date, as to the performance by the Company of all of its obligations
hereunder to be performed on or prior to the Closing Date, as to the matters set
forth in Sections 5(a) and 5(e) hereof and as to such other matters as the
Representative may reasonably request.
(i) Other Documents and Certificates. At the Closing Date,
Underwriters' Counsel shall have been furnished with all such documents,
certificates and opinions as Underwriters' Counsel may reasonably request and
that are customary for transactions of a similar nature, and of which the
Company has been notified in writing prior to the date hereof, in order to
evidence the accuracy and completeness of any of the representations,
warranties, certificates or other written statements of the Company provided to
the Underwriters pursuant to this Agreement, the performance of any of the
covenants of the Company, or the fulfillment of any of the conditions herein
contained. All proceedings taken by the Company at or prior to the Closing Date
in connection with the authorization, issuance and sale of the Securities as
contemplated by this Agreement, including, without limitation, the execution of
this Agreement, shall be reasonably satisfactory in form and substance to the
Underwriters and Underwriters' Counsel.
In case any of the conditions specified above in this Section
5 shall not have been fulfilled, this Agreement may be terminated by the
Underwriters upon notice thereof to the Company (in writing, or orally if
promptly confirmed in writing). Any such termination shall be without liability
of either party to the other party except as otherwise provided in Section 4(j)
hereof and except for any liability under Section 6 hereof.
6. Indemnification and Contribution
(a) Indemnification by Company. The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages, liabilities
or expenses, as and when incurred, to which such Underwriter may become subject,
joint or several, under the 1933 Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or claims in respect
thereof), arise out of or are based upon an untrue statement or alleged untrue
15
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will promptly reimburse such Underwriter for any reasonable expenses
(including reasonable fees and expenses for no more than one law firm for the
Underwriters) when and as incurred by such Underwriter in connection with
investigating or defending any such action or claim (including such losses,
damages, liabilities or expenses to the extent of the aggregate amount paid in
settlement of any such action or claim, provided that (subject to Section 6(c)
hereof) any such settlement is effected with the written consent of the
Company); provided, however, that the Company shall not be liable in any such
case to an Underwriter to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Securities or any such amendment or supplement thereto in
reliance upon and in conformity with the Underwriter Information.
(b) Indemnification by the Underwriters. Each Underwriter,
severally, will indemnify and hold harmless the Company against any losses,
claims, damages, liabilities or expenses to which the Company may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or claims in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Securities or
any amendment or supplement thereto, or arise out of are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Securities or any such amendment or supplement, in reliance upon
and in conformity with the Underwriter Information, and will reimburse the
Company for any reasonable expenses (including reasonable fees and expenses for
no more than one law firm for the Company) when and as incurred by the Company
in connection with investigating or defending any such action or claim
(including such losses, damages, liabilities or expenses to the extent of the
aggregate amount paid in settlement of any such action or claim, provided that
(subject to Section 6(c) hereof) any such settlement is effected with the
written consent of the Representative).
(c) General. Promptly after receipt by an indemnified party
under Section 6(a) or 6(b) hereof of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under Section 6(a) or 6(b) hereof, notify such
indemnifying party in writing of the commencement thereof, but the failure so to
notify such indemnifying party shall not relieve such indemnifying party from
any liability except to the extent that it has been prejudiced in any material
respect by such failure or from any liability that it may have to any such
indemnified party otherwise than under Section 6(a) or 6(b) hereof. In case any
such action shall be brought against any such indemnified party and it shall
notify such indemnifying party of the commencement thereof, such indemnifying
party
16
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party under Section 6(a) or (b) hereof
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to such indemnifying party), and, after notice
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party under Section 6(a) or 6(b) hereof for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. If at any time such indemnified party shall have
requested such indemnifying party under Section 6(a) or 6(b) hereof to reimburse
such 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) or (b) hereof effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of such request for reimbursement, (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 for
reimbursement prior to the date of such settlement. No such indemnifying party
shall, without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of such indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any such indemnified party.
In no event shall such indemnifying parties be liable for the fees and expenses
of more than one counsel, including any local counsel, for all such 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.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to or insufficient to indemnify or hold harmless an
indemnified party under Section 6(a) or 6(b) hereof in respect of any losses,
damages or liabilities (or actions or claims in respect thereof) referred to
therein, then each indemnifying party under Section 6(a) or 6(b) hereof shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, damages or liabilities (or actions or claims in respect thereof)
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. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law then each such
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, damages or liabilities (or actions or
claims in respect thereof), 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 shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
17
commissions the Underwriters received. 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 the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to above in this Section 6(d). The amount paid or payable by such an indemnified
party as a result of the losses, damages or liabilities (or actions or claims in
respect thereof) referred to above in this Section 6(d) shall be deemed to
include any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any such action or claim. The
obligations of the Underwriters to contribute hereunder are several and not
joint. Notwithstanding the provisions of this Section 6(d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by such Underwriter and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) Scope of Obligations. The obligations of the Company under
this Section 6 shall be in addition to any liability that the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director, employee, agent or other representative and to each person,
if any, who controls each Underwriter within the meaning of the 1933 Act; and
the obligations of the Underwriters under this Section 6 shall be in addition to
any liability that the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company who
signed the Registration Statement, to each other officer, director, employee,
agent or other representative of the Company and to each person, if any, who
controls the Company within the meaning of the 1933 Act.
7. Representations, Warranties and Agreements to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriters, as set forth in this Agreement
or made by or on behalf of the Company or the Underwriters, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of the Underwriters, any of their officers, directors, employees, agents
or other representatives or controlling persons, or the Company, any officer or
director of the Company who signed the Registration Statement or any controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
8. 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 [Name of Lead Underwriter] at the address set forth on the first
page of this Agreement, attention of [
18
]; and notices to the Company shall be directed to Otter Tail Corporation, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel and Corporate Secretary.
9. Default by an Underwriter. If any Underwriter shall default on its
obligation to purchase the Securities that it has agreed to purchase under this
Agreement, the non-defaulting Underwriters may in their discretion arrange for
themselves or another firm or corporation or firms or corporations to purchase
such Securities on the terms contained herein. If, within thirty-six hours after
such default by any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another firm or
corporation or firms or corporations satisfactory to the non-defaulting
Underwriters to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the non-defaulting Underwriters shall
notify the Company that they have so arranged for the purchase of such
Securities, or the Company notifies the non-defaulting Underwriters that it has
so arranged for the purchase of such Securities, the non-defaulting Underwriters
or the Company shall have the right to postpone the Closing Date for such
Securities for a period of not more than seven days in order to effect whatever
changes may be thereby made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration Statement or the
Prospectus that in the opinion of the non-defaulting Underwriters may thereby be
made necessary. If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company, the aggregate principal amount of such Securities
that remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of the Securities
that such Underwriter agreed to purchase under this Agreement and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of the Securities that such Underwriter agreed to
purchase under this Agreement) of the Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters
and the Company, the aggregate principal amount of the Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Securities, or if the Company shall not exercise the right to require
non-defaulting Underwriters to purchase the Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company.
The term "Underwriter" for purposes of this Agreement includes any such person
substituted for the defaulting Underwriter. Notwithstanding any termination
pursuant to this Section 9, the provisions of Sections 4(j), 6, 7 and 10 hereof
shall remain in effect.
10. Miscellaneous. The rights and duties of the parties to this
Agreement shall, pursuant to New York General Obligations Law Section 5-1401, be
governed by the law of the State of New York. This Agreement shall be binding
upon, and inure solely to the benefit of, the Company and the Underwriters
except to the extent provided in Section 6(e) hereof, and their
19
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No person who purchases any of the Securities from the Underwriters
shall be deemed a successor or assign by reason merely of such purchase. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
The word "or" shall not be exclusive, and all references in this Agreement to
the words "herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Section or
subdivision hereof, and the captions to such Sections and subdivisions are for
convenience only and shall not affect the construction hereof.
20
If the foregoing is in accordance with your understanding, please sign
and return to the Company the enclosed duplicate hereof, whereupon this
Agreement will become a binding agreement between the Company and you in
accordance with its terms.
Very truly yours,
OTTER TAIL CORPORATION
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
[NAMES OF UNDERWRITERS]
BY: [NAME OF LEAD UNDERWRITER]
By:
------------------------------
Name:
Title:
21
SCHEDULE I
AGGREGATE
PRINCIPAL
AMOUNT OF
NAME OF UNDERWRITER SECURITIES
------------------------------------------------------------- -------------
$
----------
TOTAL....................................................... $
----------
22