Draft of 1/7/98
$50,000,000
WISCONSIN GAS COMPANY
__% Notes Due 2009
UNDERWRITING AGREEMENT
January __, 1999
January __, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Wisconsin Gas Company, a Wisconsin corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "Underwriters") $50,000,000 principal amount of its ____% Notes Due
2009 (the "Securities") to be issued pursuant to the provisions of an Indenture
dated as of September 1, 1990 (the "Indenture") between the Company and Firstar
Bank Milwaukee, N.A., as Trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Securities. The registration statement as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the prospectus, including any
supplement thereto, in the form first used to confirm sales of Securities is
hereinafter referred to as the "Prospectus."
1. Representations and Warranties. (A) The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by reference in the Prospectus complied or will or will comply when
so filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), (ii) each part of the Registration
Statement, when such part became effective, did not contain and each such part,
as amended or supplemented, if applicable, will not contain any 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
Registration
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Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee.
(c) The Company is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has the corporate
power and authority to own its property and to conduct its business as described
in the Prospectus; the Company is in possession of and operating in compliance
with all franchises, grants, authorizations, licenses, permits, easements,
consents, certificates and orders required for the conduct of its business, all
of which are valid and in full force and effect (except where any failure to do
so would not result in a material adverse change in the condition (financial or
otherwise), business or results of operations of the Company).
(d) The Company has no subsidiaries.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and general
principles of equity and subject to the qualification that certain provisions
thereof may be unenforceable in whole or in part under the laws of the State of
Wisconsin, but inclusion of such provisions does not affect the validity of the
Indenture and the Indenture contains legally adequate provisions for the
realization of the principal legal right and benefits afforded thereby; and the
Indenture conforms, in all material respects, to the description thereof in the
Prospectus.
(g) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with their
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and general
principles of equity and subject to the qualification that certain provisions
thereof may be unenforceable in whole or in part under he laws of the State of
Wisconsin, but inclusion of such provisions does not affect the validity of the
Securities and the Securities contain legally adequate provisions for the
realization of the principal legal rights and benefits afforded thereby; and the
Securities will conform, at the time of their issuance, in all material respects
with the description thereof in the Prospectus.
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(h) The Company is not in violation of its Restated Articles of
Incorporation or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any statute, contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
material agreement or instrument to which it is a party or by which it or its
property may be bound, which violations or defaults would individually or in the
aggregate result in a material adverse change in the condition (financial or
otherwise), business or results of operations of the Company; no consent,
approval, authorization or order of any court or governmental authority or
agency is required in connection with the sale of the Securities to the
Underwriters, except such as may be required under the Securities Act and state
securities laws; and the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and therein will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel to which the
Company is a party or by which it is bound, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company, or any
law, administrative regulation, or administrative or court decree known to them,
other than in each case (except with respect to the charter and by-laws of the
Company to which this qualification shall not apply) such breaches, defaults or
violations which individually or in the aggregate would not result in a material
adverse change in the condition (financial or otherwise), business or results of
operations of the Company;
(i) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus, and except as set forth or
contemplated thereby, the Company has not incurred any liabilities or
obligations, direct or contingent, nor entered into any transactions not in the
ordinary course of business which in either case are material to the Company;
there has not occurred any material adverse change in the condition (financial
or otherwise), business or operations of the Company, whether or not arising in
the ordinary course; and there has not been any material change in the capital
stock or long-term debt of the Company, except for payments upon maturity [or
the payment of sinking fund obligations (whether required or pursuant to
optional provisions)] on outstanding first mortgage bonds];
(j) There are no legal or governmental proceedings pending or
threatened to which the Company is a party or to which any of the properties of
the Company is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described, or which, if determined
adversely to the Company, the Company reasonably believes would individually or
in the aggregate result in a material adverse change in the condition (financial
or otherwise), business or results of operations of the Company or which would
materially and adversely affect the consummation of the transactions
contemplated by this Agreement; and to the best of the Company's knowledge no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act,
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complied when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(l) The Company has obtained a certificate of authority from the Public
Service Commission of Wisconsin (the "Wisconsin Commission") with respect to the
Securities authorizing the issue and sale of the Securities by the Company on
the terms set forth or contemplated in this Agreement and in the Registration
Statement; the Company will make such additional filings as are required under
said certificate of authority in a timely fashion.
(m) Other than WICOR, Inc. and Citibank, N.A., as trustee of the
Wisconsin Gas Company Employees' Savings Plan, no person or corporation, which
is a holding company" or a "subsidiary company" of a "holding company", within
the meaning of such terms as defined in the Public Utility Holding Company Act
of 1935, directly or indirectly owns, controls or holds with power to vote, 10%
or more of the outstanding voting securities of the Company; and each of the
Company and WICOR, Inc. is presently exempt from the provisions of the Public
Utility Holding Company Act of 1935 which would require it to register
thereunder.
(n) The Company is not 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.
(B) Any certificate signed by an officer of the Company and delivered
to you or counsel for the Underwriters at the Closing Time in connection with
the offering of Notes shall be deemed a representation and warranty of the
Company, as to the matters covered thereby, to each Underwriter participating in
the offering.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Securities set forth in Schedule I
hereto opposite its name at _____% of their principal amount plus accrued
interest, if any, from January __, 1999 to the date of payment and delivery.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Securities are to be offered to the public initially at
____% of their principal amount (the "Public Offering Price") plus accrued
interest, if any, from January __, 1999 to the date of payment and delivery and
to certain dealers selected by you at a price that represents a concession not
in excess of ____% of their principal amount under the Public Offering Price,
and that any Underwriter may allow, and such dealers may reallow, a concession,
not in excess of ____% of their principal amount, to any Underwriter or to
certain other dealers.
4. Payment and Delivery. Payment for the Securities shall be made by
wire transfer payable to the order of the Company in Federal or other funds
immediately available at the office
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▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at
10:00 A.M., local time, on January __, 1999. The time and date of such payment
are hereinafter referred to as the "Closing Date."
Payment for the Securities shall be made against delivery to you for
the respective accounts of the several Underwriters of one or more global
certificates representing the Securities registered in the name of Cede & Co.
with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Securities to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Securities are subject to the
condition that the Registration Statement shall have become effective on the
date hereof.
In addition, the several obligations of the Underwriters are subject to
the accuracy of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) at the Closing Time
(i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act,
no order suspending trading or striking or withdrawing any Securities
to be listed on a national securities exchange from listing and
registration under the Exchange Act shall be in effect, and no
proceedings under the Securities Act or the Exchange Act therefor shall
have been initiated or threatened by the Commission, (ii) the rating
assigned by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, to any debt securities, preferred stock or
other obligations of the Company as of the date of this Agreement shall
not have been lowered since the execution of this Agreement and no
notice indicating an intended or potential downgrading of any such
securities shall have been given by any such rating organization since
the date of this Agreement, and (iii) there shall not have come to your
attention any facts that would reasonably cause you to believe that the
Prospectus at the time it was required to be delivered to a purchaser
of the Securities, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at such
time, not misleading.
(b) The Underwriters shall have received on the Closing Date an opinion
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, outside counsel for the Company, dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
(i) the Company is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, and
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
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(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of
equity and subject to the qualification that certain provisions thereof
may be unenforceable in whole or in part under the laws of the State of
Wisconsin, but inclusion of such provisions does not affect the
validity of the Indenture and the Indenture contains legally adequate
provisions for the realization of the principal legal rights and
benefits afforded thereby;
(iv) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general
principles of equity and subject to the qualification that certain
provisions thereof may be unenforceable in whole or in part under the
laws of the State of Wisconsin, but inclusion of such provisions does
not affect the validity of the Securities and the Securities contain
legally adequate provisions for the realization of the principal legal
rights and benefits afforded thereby;
(v) The Indenture and the Securities conform in all material
respects to the descriptions thereof in the Prospectus and the
applicable Prospectus Supplement;
(vi) The Registration Statement is effective under the
Securities Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission;
(vii) The Registration Statement, at the time it became
effective and as of the date of this Agreement, and the Prospectus, as
of the date thereof, as of the date of this Agreement and as of the
Closing Date, (in each case other than the financial statements and
other financial or statistical information included or incorporated by
reference therein, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the
Securities Act, the Trust Indenture Act, and the rules and regulations
thereunder;
(viii) Each document, if any, filed pursuant to the Exchange
Act (other than the financial statements and other financial or
statistical information included therein, as to which no opinion need
be rendered) and incorporated by reference in the Prospectus complied
when so filed as to form in all material respects with the Exchange Act
and the rules and regulations thereunder;
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(ix) The Wisconsin Commission has authorized the issue and
sale of the Securities; such authorization, to the best of their
knowledge, is still in full force and effect and no stay with respect
thereto is pending or in effect and such authorization is sufficient
for the issue and sale of the Securities; the issue and sale of the
Securities as described in the Prospectus are in conformity with the
terms of such authorization; and no other consent, approval,
authorization or order of any court or governmental authority or agency
is required in connection with the sale of the Securities to the
Underwriters, except such as may be required under the Securities Act
and state securities laws; and to the best of their knowledge and
information, the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and therein will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
known to such counsel to which the Company is a party or by which it is
bound, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company, or any law, administrative
regulation, or administrative or court decree known to them, other than
in each case (except with respect to the charter and by-laws of the
Company to which this qualification shall ot apply) such breaches,
defaults or violations which individually or in the aggregate would not
result in a material adverse change in the condition (financial or
otherwise), business or results of operations of the Company;
(x) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
is a party or to which any of the properties of the Company is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required;
(xi) the statements (A) in the Prospectus under the captions
"Description of Notes" and "Plan of Distribution" and (B) in the
Registration Statement in Item 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
You shall also have received from such counsel a letter
advising that nothing has come to such counsel's attention that would
lead such counsel to believe that the Registration Statement, at the
time it became effective, or if an amendment to the Registration
Statement or an annual report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the
Registration Statement (other than the financial statements and
supporting schedules and other financial or statistical information set
forth therein, as to which no advice is given), then at the time of the
most recent such filing, and as of the date of this Agreement,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated herein or necessary to make the
statements
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therein not misleading or that the Prospectus, as amended or
supplemented at the date of this Agreement and at the Closing Time,
contained or contains an untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
The opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ described in this paragraph (b)
shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(c) The Underwriters shall have received on the Closing Date an opinion
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (ii), (iii), (iv), and (x) of
paragraph (b) above and in the unnumbered subparagraph in paragraph (b).
With respect to the unnumbered subparagraph of paragraph (b) above,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
(d) At the Closing Time there shall not have been, since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, of the Company
or in the earnings, business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and the Underwriters
shall have received a certificate of the President and Chief Executive Officer
and Chief Financial Officer of the Company, dated as of the Closing Time, to the
effect that there has been no such material adverse change, to the effect that
the representations and warranties of the Company contained in Section 1 are
true and correct with the same force and effect as though made on the Closing
Date, and to the effect that the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
(e) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to the Underwriters, from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, independent public accountants, 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) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings or in order to evidence the accuracy
and completeness of any of the representations and 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 Notes as
herein contemplated shall be satisfactory in form and substance to you.
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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 you by notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Sections 7(f) and 9.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To deliver to you one signed and as many conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as you may reasonably
request and will also deliver to you a conformed copy of the Registration
Statement and each amendment thereto for each of the Underwriters.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, whether pursuant to the Exchange Act, the Securities Act or
otherwise, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public offering
of the Securities the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary, in the view of your
counsel and counsel for the Company, to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
both such counsel, it is necessary to amend or supplement the Prospectus to
comply with applicable law, promptly to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Securities may have been
sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus, whether by filing documents
pursuant to the Exchange Act or otherwise, so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
(d) To notify each of you immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or, pending completion of the distribution of
the Securities by the Underwriters pursuant to this Agreement, any document to
be filed pursuant to the Exchange Act and incorporated by reference into the
Prospectus, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or any prospectus
supplement, (iv) 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 (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company
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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.
(e) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act, will file promptly all documents required
to be filed with the Commission pursuant to Section 13 or 14 of the Exchange
Act.
(f) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions of the United States as you
shall reasonably request and maintain such qualifications in effect for as long
as may be required for the distribution of the Securities; provided, however,
that the Company shall not be required to qualify to do business or to file a
general consent to service of process in any such jurisdiction. The Company
will, from time to time, prepare and file such statements and reports as are or
may be required by the laws of each jurisdiction in which the Securities have
been qualified as above provided.
(g) To make generally available to the Company's security holders and
to you as soon as practicable an earnings statement covering the twelve-month
period beginning on the first day of the first full fiscal quarter after the
date of this Agreement that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company substantially similar to the Securities (other
than (i) the Securities and (ii) commercial paper issued in the ordinary course
of business), without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated.
(i) The Company will use the net proceeds received by it from the sale
of the Notes in the manner specified in the Prospectus under "Use of Proceeds."
(j) To pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Securities; (iii)
the fees and disbursements of the Company's counsel and accountants and of the
Trustee and its counsel; (iv) the qualification of the Securities under state
securities or Blue Sky laws in accordance with the provisions of Section 6(f),
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any Blue Sky Memoranda, provided that the fees of such counsel for the Blue
Sky Memorandum shall not exceed $5,000; (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of each preliminary prospectus and the
Prospectus and any amendments or supplements thereto; (vi) the printing and
delivery to the Underwriters of copies of the Indenture and any Blue Sky
Memoranda; (vii) any fees charged by rating agencies for the rating of the
Securities; and (viii) the costs and fees of any registrar or transfer agent.
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7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each of its employees, officers, directors and
agents, and each person, if any, who controls any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, any legal or other expenses reasonably incurred
by any Underwriter or any such controlling person in connection with defending
or investigating any such action or claim) joint or several, as incurred, caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each of its employees and agents and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 7, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of
parties indemnified pursuant to paragraph (a) above and by the Company, in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any
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settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (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 or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, 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 shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Securities. 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 by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective principal amounts of Securities
they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
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 that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 7.
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The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
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 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement or made by it pursuant to this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company at or prior to the Closing, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, either the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in the United States generally or in
New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or together
with any other such event, makes it, in your judgment, impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I bears to the principal
amount of Securities set forth opposite the names of all such
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non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
13. 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 you c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, attention Debt Syndicate Department; notices to the Company
shall be directed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of Chief Financial Officer (with a copy addressed to ▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇).
14. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this
- 15 -
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 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 parties 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.
- 16 -
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter and the Underwriters' acceptance shall
constitute a binding agreement between us.
Very truly yours,
WISCONSIN GAS COMPANY
By
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Acting severally on behalf
of themselves and the
several Underwriters named
herein.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
By
Name:
Title:
- 17 -
SCHEDULE I
Principal Amount
of Securities
Underwriter To Be Purchased
---------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
-------------------
Total.................... ===================
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