EXHIBIT 1.2
[FORM OF UNDERWRITING AGREEMENT FOR
TRUST PREFERRED SECURITIES]
WEC CAPITAL TRUST [ ]
[ ] TRUST PREFERRED SECURITIES, SERIES [ ]
(liquidation amount $[ ] per preferred security) guaranteed
on a junior subordinated basis by Wisconsin Energy Corporation
UNDERWRITING AGREEMENT
[Date]
To the Underwriters set forth
on Schedule A hereto
Ladies and Gentlemen:
WEC Capital Trust [ ], a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), and Wisconsin Energy Corporation, a
Wisconsin corporation, as depositor of the Trust and as guarantor (the "Company"
and, together with the Trust, the "Issuers"), propose subject to the terms and
conditions stated herein, that the Trust issue and sell to Underwriters named in
Schedule A hereto (the "Underwriters") an aggregate of [ ] [ ]% Trust
Preferred Securities, Series [ ] (liquidation amount $[ ] per preferred
security) further set forth in Schedule B hereto representing beneficial
interests in the Trust (the "Securities"), guaranteed on a junior subordinated
basis by the Company as to the payment of distributions, and as to payments on
liquidation or redemption, to the extent set forth in a guarantee agreement to
be dated [ ], [ ] (the "Guarantee") between the Company and The First
National Bank of Chicago, as trustee (the "Guarantee Trustee"). The Trust is to
purchase, with the proceeds of the sale of the Securities to the Underwriters
and the sale of its Common Securities (liquidation amount $[ ] per common
security) (the "Common Securities") to the Company, an aggregate of $[ ]
Corresponding Junior Subordinated Debentures (the "Corresponding Junior
Subordinated Debentures") of the Company, to be issued pursuant to a securities
resolution with respect to an indenture (the "Indenture") dated as of
[ ], [ ] between the Company and The First National Bank of Chicago,
as trustee (the "Corresponding Debt Trustee"). The payments made by the Company
on the Corresponding Junior Subordinated Debentures are established at a level
sufficient to permit the Trust, upon receipt of such payments, to make payments
on the Securities in accordance with their terms.
-2-
The Issuers understand that the Underwriters propose to make a public
offering of the Securities as soon as their representative or representatives
(the "Representatives") deem advisable after this Agreement has been executed
and delivered.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Issuers. Each of the
Issuers jointly and severally represents and warrants to each Underwriter as of
the date hereof and as of the Closing Time referred to in Section 2(b) hereof,
and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Issuers meet the
requirements for use of Form S-3 under the Securities Act of 1933, as
amended (the "1933 Act"). The Issuers have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (File No. 333-73137), which has become effective (including
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the 1933 Act), for the
registration under the 1933 Act of the Securities. Such registration
statement meets the requirements set forth in Rule 415(a)(1)(x) under the
1933 Act and complies in all other material respects with said Rule, and as
amended at the date of this Agreement, including the exhibits thereto, is
hereinafter called the "Registration Statement". The form of prospectus
included in such Registration Statement is hereinafter called the "Basic
Prospectus"; the form of prospectus supplement included in such
Registration Statement, or, if the Company files with the Commission a
subsequent prospectus supplement to be used in connection the issuance and
sale of the Securities under the Prospectus in accordance with Rule 424(b)
under the 1933 Act, such subsequent prospectus, is hereinafter called the
"Prospectus Supplement"; and the Basic Prospectus, as supplemented by the
Prospectus Supplement, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) is hereinafter called the "Prospectus".
Any preliminary form of the Prospectus which has heretofore been filed
pursuant to Rule 424(b) is hereinafter called the "Preliminary Prospectus".
Any reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "1934 Act"), on or before the date of this Agreement,
or the issue date of the Basic Prospectus, any Preliminary Prospectus or
the Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date of this
-3-
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
(ii) No Misstatements or Omissions. As of the date hereof, when
the Prospectus is first filed or transmitted for filing pursuant to Rule
424(b) under the 1933 Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration
Statement, as then amended as of any such time, and the Prospectus, as then
amended or supplemented as of such time, and each of the Trust Agreement
(as defined below), the Indenture and the Guarantee will comply in all
material respects with the applicable requirements of the 1933 Act, the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the 1934 Act
and the respective rules and regulations thereunder (the "1934 Act
Regulations") and (ii) neither the Registration Statement, as then amended
as of such time, nor the Prospectus, as then amended or supplemented, as of
such time, will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the 1939 Act of the applicable trustees or (ii) the
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration Statement
and the Prospectus.
(iii) Status of Trust. The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the Business
Trust Act of the State of Delaware with the power and authority to enter
into and perform its obligations under this Agreement, the Securities, the
Common Securities and the Trust Agreement (as defined below) and to own
property and conduct its business as described in the Prospectus, and has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and as described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other than
this Agreement, the Amended and Restated Trust Agreement (the "Trust
Agreement") between the Company and the trustees named therein (the
"Trustees") and the agreements and instruments contemplated by the Trust
Agreement and the Prospectus.
(iv) Authorization of Common Securities. The Common Securities have
been duly authorized by the Trust and upon delivery by the Trust to the
Company
-4-
against payment therefor as described in the Prospectus, will be duly and
validly issued and fully paid and non-assessable beneficial interests in
the Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(v) Authorization of Securities. The Securities have been duly
authorized by the Trust, and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and, subject
to the qualifications set forth herein, fully paid and non-assessable
beneficial interests in the Trust and will conform in all material respects
to the description thereof contained in the Prospectus; the issuance of the
Securities is not subject to preemptive or other similar rights; and the
holders of the Securities (the "Securityholders") will be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware (subject to the obligations of the Securityholders under
the Trust Agreement to make certain payments to the Trust to defray
expenses such as any applicable transfer and stamp taxes and to provide
security or indemnity in connection with the replacement of destroyed, lost
or stolen certificates or in connection with directing the Property Trustee
under the Trust Agreement to exercise its rights and powers at the request
of Securityholders).
(vi) Authorization of Company Agreements. The Guarantee, the
Corresponding Junior Subordinated Debentures, the Trust Agreement and the
Indenture (collectively, the "Company Agreements") have each been duly
authorized by the Company and when validly executed and delivered by the
Company and, in the case of the Guarantee, by the Guarantee Trustee, in the
case of Trust Agreement, by the Trustees and, in the case of the Indenture,
by the Corresponding Debt Trustee, and, in the case of Corresponding Junior
Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Trust Agreement, the Indenture and the
Guarantee have been duly qualified under the 1933 Act, as amended; the
Corresponding Junior Subordinated Debentures are entitled to the benefits
of the Indenture; and the Company Agreements will conform to the
descriptions thereof in the Prospectus.
-5-
(vii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Issuers.
(viii) Absence of Defaults and Conflicts. None of the Company, the
Trust or any "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X (each a "Subsidiary" and,
collectively, the "Subsidiaries") and each of which is listed on Schedule C
hereto) is in violation of its charter, by-laws or other organizational
documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company, the Trust or any of its
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company, the Trust or any
Subsidiary is subject (collectively, "Agreements and Instruments") except
for such defaults that would not have a material adverse effect on the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"); and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein and
in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and
compliance by each of the Trust and the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company, the Trust or any Subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter, by-laws or other organizational documents of the
Company, the Trust or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, the Trust or any Subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, the Trust or any Subsidiary.
-6-
(ix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by each of the Issuers of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or made or as may be required under the 1933 Act or the rules and
regulations of the Commission thereunder (the "1933 Act Regulations") or
state securities laws and except for the qualification of the Trust
Agreement, the Indenture and the Guarantee under the 1939 Act.
(x) Investment Company Act. Each of the Issuers is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(b) Officer's Certificates. Any certificate signed by any officer of
the Company, any of its Subsidiaries or the Trust delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company and the Trust to each Underwriter as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Issuers agree to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Issuers, at
the price and with the terms set forth in Schedule B, the number of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of the
Representatives, or at such other place as shall be agreed upon by the
Representatives and the Company at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
-7-
Payment shall be made to the Trust by wire transfer of immediately
available or next day funds as set forth in Schedule B to a bank account(s)
designated by the Trust against delivery to the Representatives for the
respective accounts of the Underwriters of certificates for the Securities to be
purchased by them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations and registered in such names as the Representatives may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Issuers. Each of the Issuers jointly and
severally covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
Subject to Section 3(b), it will prepare the Prospectus in a form approved
by the Representatives and file such Prospectus (pursuant to Rule 424(b)
within the time prescribed under Rule 424(b) or Rule 430(A)(3), as the case
may be) and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. It will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. It will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. It will give the Representatives notice of
its intention to file or prepare any amendment to the Registration
Statement or any amendment, supplement or revision to the Prospectus,
whether pursuant to the 1933
-8-
Act, the 1934 Act or otherwise, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which the Representatives or counsel for the Underwriters
shall object.
(c) Delivery of Registration Statements. It has furnished or will
deliver to the Representatives and counsel for the Underwriters, without
charge, two originally signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and two originally
signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("▇▇▇▇▇"), except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. It has delivered to each Underwriter,
without charge, as many copies of each Preliminary Prospectus relating to
the Securities as such Underwriter reasonably requested, and it hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
It will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. It will comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Issuers, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in
-9-
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, it will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements, and it will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. It will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may designate
and to maintain such qualifications in effect for a period of not less than
one year from the later of the effective date of the Registration
Statement; provided, however, that it shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which they
are not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which they are not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, it will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
(g) Rule 158. It will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. It will cause the net proceeds received by the
Trust from the sale of the Securities to be used in the manner specified in
the Prospectus under "Use of Proceeds".
(i) Listing. It will use its best efforts to cause the listing of the
Securities on any such stock exchange or exchanges as are set forth in
Schedule B hereto.
(j) Restriction on Sale of Securities. During a period of 30 days
following the Closing Time, it will not, without the prior written consent
of the Representatives, sell or contract to sell or announce the offering
of, any securities of either of the Issuers with characteristics and terms
similar to those of the Securities.
-10-
(k) Reporting Requirements. During the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, the Company
will file or cause to be filed all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Issuers will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits and the Form T-1) as originally
filed and of each amendment thereto, (ii) the preparation, printing,
reproduction and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters, the Indenture, the Trust Agreement, the Guarantee and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Issuers' counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith, (vi)
the printing and delivery to the Underwriters of copies of each Preliminary
Prospectus and of the Prospectus and any amendments or supplements thereto,
(vii) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the Securities,
(viii) any fees payable in connection with the rating of the Securities, (ix)
the fees and expenses incurred in connection with the listing, if applicable, of
the Securities on any such exchange or exchanges as are listed on Schedule B
hereto, (x) all fees and expenses of trustees, and (xi) the fees and expenses
incident to the performance of the Issuers' other obligations hereunder.
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Issuers shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
-11-
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Issuers contained in Section 1(a) hereof
or in certificates of any officer of the Issuers or any Subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by each
of the Issuers of its respective covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the 1933 Act
Regulations and in accordance with Section 3(a) hereof; and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission.
(b) Opinion of Counsel for Company and Trust. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Issuers, to the
effect set forth in Exhibit A-1 hereto and (b) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Counsel for the Issuers to the effect set forth in Exhibit A-2 hereto, each
in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters and addressed to the Underwriters and to such further
effect as counsel to the Underwriters may reasonably request. In giving
such opinion such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of Wisconsin and the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company, the Trust and the Company's
Subsidiaries, certificates of representatives of the applicable trustees
and certificates of public officials. In rendering its opinion, ▇▇▇▇▇▇▇ &
▇▇▇▇▇ LLP may rely as to the exempt status of the Company under the Public
Utility Holding Company Act, upon the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, the counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters and addressed to the Underwriters with respect to such
matters as the Representatives may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the
-12-
opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers
of the Company, the Trust and the Company's Subsidiaries, certificates of
representatives of the applicable Trustees and certificates of public
officials.
(d) Opinion of Special Delaware Counsel. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel
for the Issuers, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters and addressed to the Underwriters to the
effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriters may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to
the Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Trust, the Company and the
Company's Subsidiaries, certificates of representatives of the applicable
trustees and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Trust and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are, to
the knowledge of such officers, contemplated by the Commission.
(f) Trust Performance. The Trust shall have performed all of its
obligations under this Agreement which are to be performed by the terms
hereof at or before the Closing Time.
-13-
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from the Company's
independent public accountants a letter dated such date, in form and
substance satisfactory to the Representatives (substantially in the form of
Annex A hereto), together with signed or reproduced copies of such letter
for each of the other Underwriters and addressed to the Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from the Company's independent public accountants a
letter, dated as of Closing Time, together with signed or reproduced copies
of such letter for each of the other Underwriters and addressed to the
Underwriters, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(i) Maintenance of Rating. At Closing Time, the Securities shall be
rated by each of Moody's Investor's Service Inc. and Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. as set forth in Schedule B
hereto. Since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's debt securities by any "nationally recognized statistical rating
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that is has under surveillance or review its rating of the
Securities or any of the Company's other debt securities.
(j) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on such exchange or exchanges as are listed on
Schedule B hereto, subject only to official notice of issuance.
(k) Additional Documents. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Issuers in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
-14-
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Issuers at any time at or prior to Closing Time and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Issuers agrees
jointly and severally to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Issuers; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that (i) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or al-
-15-
leged untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Issuers by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) and (ii) such indemnity with respect to any
Preliminary Prospectus or the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, liability, claim, damage or expense purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Prospectus (or the Prospectus, as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of the Securities to such person in any case where such delivery is
required by the 1933 Act and the untrue statement or omission of a material fact
contained in any Preliminary Prospectus or the Prospectus was corrected in the
Prospectus (or the Prospectus, as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Issuers may otherwise
have.
(b) Indemnification of Issuers, Trustees, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Issuers,
their respective directors or trustees, each of their officers who signed the
Registration Statement, and each person, if any, who controls either of the
Issuers within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Issuers by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the Issuers.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event
-16-
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuers on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Issuers on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting ex-
-17-
penses) received by the Issuers and the total underwriting discount received by
the Underwriters, in each case as set forth on the cover of the Prospectus, bear
to the aggregate initial public offering price of the Securities as set forth on
such cover.
The relative fault of the Issuers on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or by an Underwriter in writing through the
Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or trustee of the Trust, each officer of the
Company or the Trust who signed the Registration Statement, and each person, if
any, who controls either of the Issuers within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as Issuers. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Securities
set forth opposite their respective names in Schedule A hereto and not joint.
-18-
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust, Company or any
Subsidiaries of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Issuers, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Issuers, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise or the Trust, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited (other than to provide for an
orderly market), or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such principal amounts as may be agreed upon and
upon the
-19-
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased on such date, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement either (i) the Representatives or (ii) the Issuers
shall have the right to postpone Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address set forth
on Schedule B; notices to the Issuers shall be directed to them at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Chief Financial
Officer.
SECTION 12. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters, the Issuers and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Issuers and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Issuers and
their respective successors, and said controlling persons and officers,
directors,
-20-
trustees and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-21-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Issuers and the Underwriters.
Very truly yours,
WISCONSIN ENERGY CORPORATION
By: ___________________________________
Name:
Title:
WEC CAPITAL TRUST [ ]
By: ___________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written above.
[NAME(S) OF REPRESENTATIVE(S)]
By: ____________________________
Authorized Signatory
For itself and the other Under-
writers, if any, named in
Schedule A to the foregoing
Agreement
SCHEDULE A
WEC CAPITAL TRUST [ ]
Number of
Preferred
Underwriter Securities
----------- ----------
$
Total............................................................ $
=====================
SCHEDULE B
WEC CAPITAL TRUST [ ]
Title: [ %] Trust Preferred Securities, Series [ ].
Liquidation Amount [at Maturity]: $ (liquidation amount $[
] per preferred security).
Distributions: [ % per annum, from , , payable
[quarterly] on , , and , commencing
, , to holders of record on the preceding on , ,
or , as the case may be.]
Maturity: , .
Optional Redemption:
Sinking Fund:
Listing:
Rating: Moody's Investor's Service Inc.:
Standard & Poor's Ratings Group:
Purchase Price: % of liquidation amount, plus accrued distributions
[, if any,] from , .
Expected Reoffering Price: % of liquidation amount, subject to
change by the [Representative[s] [Underwriters].
Closing: A.M. on , , at the offices of [ ], [[in New
York] [Chicago] Clearing House (next day)] [Federal (same day)] funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry
Only via the Depository Trust Company ("DTC"). The Securities [will] [will not]
trade in DTC's Same Day Funds Settlement System.]
Notices: Notices to be given to the Underwriters should be directed
to the Representatives as follows:
The respective numbers of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
SCHEDULE C
WISCONSIN ENERGY CORPORATION
List of Significant Subsidiaries
A-1
Exhibit A-1
FORM OF OPINION OF ISSUERS' COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit A is
attached.
(i) The Company has been duly incorporated and is validly existing as
a corporation in active status under the laws of the State of Wisconsin.
(ii) The Agreement has been duly authorized, executed and delivered
by the Company.
(iii) The Guarantee, the Corresponding Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly authorized
by the Company and when validly executed and delivered by the Company and, in
the case of the Guarantee, by the Guarantee Trustee, in the case of Trust
Agreement, by the Trustees and, in the case of the Indenture, by the
Corresponding Debt Trustee, and, in the case of Corresponding Junior
Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the 1939 Act; the
Corresponding Junior Subordinated Debentures are entitled to the benefits of the
Indenture; and the Company Agreements conform in all material respects to the
descriptions thereof in the Prospectus.
(iv) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(v) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and the Statements of Eligibility on Form T-1 of the
applicable trustees, as to which we express no opinion) appear on their face to
comply as
A-1
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the ▇▇▇▇ ▇▇▇.
(vi) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder.
(vii) To the best of our knowledge, no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign (other than under
the 1933 Act and the 1933 Act Regulations and the 1939 Act, which have been
obtained or made, or as may be required under the securities or blue sky laws of
the various states, as to which we express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the
Agreement or for the offering, issuance, sale or delivery of the Securities.
(viii) Neither the Company nor the Trust is an "investment company"
or an entity "controlled" by an "investment company," as such terms are defined
in the 1940 Act.
(ix) The Trust Agreement, the Indenture and the Guarantee have been
duly qualified under the ▇▇▇▇ ▇▇▇.
(x) The Securities, the Common Securities, the Guarantee and the
Corresponding Junior Subordinated Debentures conform as to legal matters in all
material respects to the statements concerning them in the Prospectus.
(xi) The statements made in the Prospectus under the caption "United
States Taxation" to the extent they matters of law or legal conclusions, have
been reviewed by such counsel and are accurate and correct in all material
respects and fairly present the information set forth therein, and that the
Trust will be characterized for United States federal income tax purposes as a
grantor trust and will not be taxable as a corporation.
We have participated in conferences with officers and other
representatives of the Issuers, representatives of the Underwriters and
representatives of the independent public accountants for the Issuers at which
conferences the contents of the Prospectus and the Registration Statement and
related matters were discussed and, although we have not independently verified,
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as otherwise indicated above), we advise you
that, on the basis of the foregoing (relying as to materiality to the extent we
deem appropriate upon the opinions of officers and other representatives of the
Issuers), no facts have come to our attention that lead us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a
A-2
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we express no comment with respect to the Forms T-1 or the financial
statements, including the notes thereto, or any other financial or statistical
data found in or derived from the internal accounting and other records of the
Company and its Subsidiaries set forth or referred to in the Registration
Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Trust, the Company and its
Subsidiaries, representatives of the applicable trustees and public officials.
In giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Wisconsin and the
federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ISSUERS' COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit A is
attached.
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Agreement.
(iii) Each Subsidiary set forth on Schedule C to the Agreement has been
duly incorporated and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus; except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable (except as
otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted) and, to the best of our knowledge,
is owned by the Company, directly or through Subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; to the
best of our knowledge, none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(iv) The Agreement has been duly authorized, executed and delivered by the
Company.
(v) The Guarantee, the Corresponding Junior Subordinated Debentures, the
Trust Agreement and the Indenture have each been duly authorized by the Company
and when validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Corresponding Debt Trustee,
and, in the case of Corresponding Junior Subordinated Debentures, when validly
issued by the Company and validly authenticated and delivered by the
Corresponding Debt Trustee, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the 1939 Act, as
amended; the
A-1
Corresponding Junior Subordinated Debentures are entitled to the benefits of the
Indenture; and the Company Agreements conform in all material respects to the
descriptions thereof in the Prospectus.
(vi) The Registration Statement has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(vii) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein or omitted
therefrom and the Statements of Eligibility on Form T-1 of the applicable
trustees, as to which we express no opinion) appear on their face to comply as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act.
(viii) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder.
(ix) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(x) All descriptions in the Registration Statement of written contracts and
other documents to which the Company or its Subsidiaries are a party are
accurate in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(xi) To the best of our knowledge, neither the Company nor any Subsidiary
is in violation of its charter or by-laws and no default by the Company or any
Subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
A-2
(xii) To the best of our knowledge, no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign (other than under
the 1933 Act and the 1933 Act Regulations and the 1939 Act, which have been
obtained or made, or as may be required under the securities or blue sky laws of
the various states, as to which we express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the
Agreement or for the offering, issuance, sale or delivery of the Securities.
(xiii) The execution, delivery and performance of the Agreement and the
Company Agreements and the consummation of the transactions contemplated in the
Agreement and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by each of the Company and the Trust with its obligations under the Agreement
and the Company Agreements do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or similar event under or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any written contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any Subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any Subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any Subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to us, of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their respective
properties, assets or operations.
(xiv) Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
(xv) The Trust Agreement, the Indenture and the Guarantee have been duly
qualified under the ▇▇▇▇ ▇▇▇.
(xvi) The Securities, the Common Securities, the Guarantee and the
Corresponding Junior Subordinated Debentures conform as to legal matters in all
material respects to the statements concerning them in the Prospectus.
(xvii) The Company is exempt from the provisions of the Public Utility
Holding Company Act of 1935, as amended (the "Public Utility Holding Company
Act"), except Section 9(a)(2) thereof relating to the acquisition of securities
of other public utility companies.
We have participated in conferences with officers and other
representatives of the Issuers, representatives of the Underwriters and
representatives of the independent public
A-3
accountants for the Issuers at which conferences the contents of the Prospectus
and the Registration Statement and related matters were discussed and, although
we have not independently verified, are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except as otherwise
indicated above), we advise you that, on the basis of the foregoing (relying as
to materiality to the extent we deem appropriate upon the opinions of officers
and other representatives of the Issuers), no facts have come to our attention
that lead us to believe that the Registration Statement or any amendment
thereto, at the time such Registration Statement or any such amendment became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of its date or as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that we express no comment with
respect to the Forms T-1 or the financial statements, including the notes
thereto, or any other financial or statistical data found in or derived from the
internal accounting and other records of the Company and its Subsidiaries set
forth or referred to in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Trust, the Company and its
Subsidiaries, representatives of the applicable trustees and public officials.
In giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Wisconsin and the
federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
A-4
Exhibit B
FORM OF OPINION OF DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit B is
attached.
(i) The Trust is a duly formed and validly existing statutory business
trust in good standing under the Business Trust Act of the State of
Delaware with the business trust power and authority to enter into and
perform its obligations under this Agreement, the Securities, the Common
Securities and the Trust Agreement and to own property and conduct its
business as described in the Prospectus.
(ii) Under the Delaware Business Trust Act and the Trust Agreement,
the execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations hereunder, have been duly
authorized by all necessary business trust action on the part of the Trust.
(iii) The Trust Agreement constitutes a valid and binding obligation
of the Company and the Trustees, enforceable against the Company and the
Trustees, in accordance with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (a) bankruptcy, insolvency, moratorium,
receivership, liquidation, fraudulent conveyance, reorganization and other
similar laws relating to or affecting the remedies and rights of creditors,
(b) general principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), (c) considerations of public
policy or the effect of applicable law relating to fiduciary duties, and
(iv) principles of course of dealing or course of performance and standards
of good faith, fair dealing, materiality or reasonableness that may be
applied by a court to the exercise of rights or remedies.
(iv) The Common Securities have been duly authorized for issuance by
the Trust and upon issuance and delivery by the Trust to the Company
against payment therefor as described in the Trust Agreement, will be duly
and validly issued and, subject to the qualifications set forth herein,
fully paid and non-assessable beneficial interests in the Trust; the
issuance of the Common Securities is not subject to preemptive or other
similar rights under the Trust Agreement or the Business Trust Act provide
that such counsel may note that the holders of Common Securities may be
required to make payment or provide indemnity or security as set forth in
the Trust Agreement.
(v) The Securities have been duly authorized for issuance by the
Trust, and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and, subject to the qualifications
set forth herein, fully paid
B-1
and non-assessable beneficial interests in the Trust; the issuance of the
Securities is not subject to preemptive or other similar rights under the
Trust Agreement or the Business Trust Act; and the Securityholders will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel need
express no opinion as to any holder of a Security that is, was or becomes a
named Trustee of the Trust. Such counsel may note that the holders of the
Securities may be required to make payment or provide indemnity or security
as set forth in the Trust Agreement.
(vi) The issuance and sale by the Trust of the Securities and the
Common Securities, the execution, delivery and performance by the Trust of
the Agreement, the consummation by the Trust of the transactions
contemplated therein and the compliance by the Trust with its obligations
thereunder do not violate (a) any of the provisions of the Certificate of
Trust of the Trust or the Trust Agreement or (b) any applicable Delaware
law or Delaware administrative regulation.
(vii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities
(other than having a Delaware trustee as required by the Delaware Business
Trust Act and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or Delaware governmental
authority or Delaware agency is required to be obtained by the Trust solely
as a result of the issuance and sale of the Securities, the consummation by
the Trust of the transactions contemplated herein or the compliance by the
Trust of its obligations hereunder, except such as have been obtained and
such as may be required by the securities laws of the State of Delaware (as
to which such counsel need express no opinion);
(viii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities
(other than having a Delaware trustee as required by the Delaware Business
Trust Act and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, and assuming that
the Trust is treated as a grantor trust for federal income tax purposes and
that the holders of the Securities are viewed for federal income tax
purposes as owners of either all of, or their liquidation and accrued but
unpaid share of, the Corresponding Subordinated Debt Securities held by the
Trust, the Securityholders (other than those holders of the Securities, or
persons who are partners or S corporation shareholders for federal income
tax purposes in such holders of Securities, who reside or are domiciled in
the State of Delaware or who are otherwise subject to income taxation in
the State of Delaware) will have no liability for income taxes imposed by
the State of Delaware solely as a result of their participation in the
Trust, and the Trust will not be liable for any income tax imposed by the
State of Delaware (in rendering the opinion expressed in this paragraph
(viii),
B-2
such counsel need express no opinion concerning the securities laws of the
State of Delaware).
B-3
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations
(i) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the published rules and regulations thereunder; [ ]
(ii) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
three month periods ended ____________ and ____________ , the three and six
month periods ended ____________ and ____________ and the three and nine
month periods ended ____________ and ____________, included or incorporated
by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials") , a reading of the unaudited interim
consolidated financial statements of the Company for the _____-month
periods ended ____________ and ____________, included in the Registration
Statement and the Prospectus (the "____-month financials") , a reading of
the latest available unaudited interim consolidated financial statements of
the Company, a reading of the minutes of all meetings of the stockholders
and directors of the Company and its subsidiaries and the ____________ and
____________ Committees of the Company's Board of Directors and any
subsidiary committees since day after end of last audited period, inquiries
of certain officials of the Company and its subsidiaries responsible for
financial and accounting matters, a review of interim financial information
in accordance with standards established by the American Institute of
Certified Public Accountants in Statement on Auditing Standards No. 71,
Interim Financial Information ("SAS 71"), with respect to the description
of relevant periods and such other inquiries and procedures as may be
specified in such letter, nothing came to our attention that caused us to
believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them to
be in conformity with generally accepted accounting principles;
(B) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with
AA-1
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations applicable to unaudited interim financial statements
included in registration statements or any material modifications
should be made to the _____-month financials included in the
Registration Statement and the Prospectus for them to be in conformity
with generally accepted accounting principles;
(C) at ____________ and at a specified date not more than five
days prior to the date of this Agreement, there was any change in the
Shareholders' Equity of the Company and its subsidiaries or any
decrease in the Total Current Assets of the Company and its
subsidiaries or any increase in the Long -term Debt of the Company and
its subsidiaries, in each case as compared with amounts shown in the
latest balance sheet included in the Registration Statement, except in
each case for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
(D) for the period from ____________ to ____________ and for the
period from ____________ to a specified date not more than five days
prior to the date of this Agreement, there was any decrease in Net
Sales, Earnings Before Extraordinary Loss or Net Earnings, in each
case as compared with the comparable period in the preceding year,
except in each case for any decreases that the Registration Statement
discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included in the Registration
Statement and a reading of the financial statements from which such data
were derived, nothing came to our attention that caused us to believe that
the Selected Financial Data included in the Registration Statement do not
comply as to form in all material respects with the disclosure requirements
of Item 301 of Regulation S-K, that the amounts included in the Selected
Financial Data are not in agreement with the corresponding amounts in the
audited consolidated financial statements for the respective periods or
that the financial statements not included in the Registration Statement
from which certain of such data were derived are not in conformity with
generally accepted accounting principles;
(iv) we have compared the information in the Registration Statement
under selected captions with the disclosure requirements of Regulation S-K
and, on the basis of limited procedures specified herein, nothing came to
our attention that caused us to believe that this information does not
comply as to form in all material respects with the disclosure requirements
of Items 302, 402 and 503(d), respectively, of Regulation S-K;
(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Company for the most
recent period that
AA-2
have not been included in the Registration Statement and a review of such
financial statements in accordance with SAS No. 71, nothing came to our
attention that caused us to believe that the unaudited amounts for Net
Sales, Net Earnings or Shareholders' Equity for the most recent period do
not agree with the amounts set forth in the unaudited consolidated
financial statements for those periods or that such unaudited amounts were
not determined on a basis substantially consistent with that of the
corresponding amounts in the audited consolidated financial statements;
[(vi) we are unable to and do not express any opinion on the Pro
Forma Combining Statement of Operations (the "Pro Forma Statement")
included in the Registration Statement or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statement;
however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed a review in accordance with SAS No. 71 of the financial
statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis for
their determination of the pro forma adjustments and whether the Pro Forma
Statement complies as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X;
(D) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the Pro Forma Statement;
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statement included in the Registration Statement does
not comply as to form in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements;] and
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement, which are specified
herein, and have compared certain of such items with, and have found such
items to be in agreement with, the accounting and financial records of the
Company.
AA-3