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EXHIBIT (1)-(2)
WISCONSIN ELECTRIC POWER COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
Dated the date set
forth in Schedule I hereto
To the Underwriters
set forth in
Schedule II hereto
Dear Sirs and Madams:
Wisconsin Electric Power Company, a Wisconsin
corporation (the "Company"), proposes to issue and sell to the
underwriter or underwriters named in Schedule II hereto (the
"Underwriters"), the aggregate principal amount of one or more
new series of its debt securities (the "Securities") set forth
in Schedule I hereto, to be issued pursuant to an indenture
dated as of ________, 1995 (the "Indenture"), between the
Company and Firstar Trust Company, as trustee (the "Trustee").
The terms of the Securities are also set forth in Schedule I
hereto. The terms "you" and "yours" refer to those
Underwriters who sign the Underwriting Agreement either on
behalf of themselves only or on behalf of themselves and as
representative or representatives of the Underwriters (the
"Representatives") named in Schedule II hereto, as the case may
be.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the
"Act"). The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on such Form (having the number set forth in
Schedule I hereto), which has become effective, for the
registration under the Act of the Securities. Such
registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all other
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material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424(b)(2) or
424(b)(5) under the Act a supplement (the "Prospectus
Supplement") to the form of prospectus included in such
registration statement relating to the Securities and the
plan of distribution thereof and has previously advised
you of all further information (financial and other) with
respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in
the form in which it appears in the Registration Statement
is hereinafter called the "Basic Prospectus"; 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)(2) or 424(b)(5) is
hereinafter called the "Final Prospectus". Any
preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b)(2) or
424(b)(5) is hereinafter called the "Preliminary Final
Prospectus". Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final 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 "Exchange Act"), on or before the date of
this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final 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 Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by
reference.
(b) As of the date hereof, when the Final Prospectus
is first filed or transmitted for filing pursuant to Rule
424(b)(2) or 424(b)(5) under the 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
Final 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 Final Prospectus, as
then amended or supplemented as of such time, and the
Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and
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the Exchange Act and the respective rules thereunder and
(ii) neither the Registration Statement, as then amended
as of such time, nor the Final 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 Trust Indenture Act of
the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final
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 the
Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of
the Securities set forth opposite such Underwriter's name in
Schedule II hereto, in each case at the purchase price set
forth in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment
for the Securities shall be made at the office, on the date and
at the time specified in Schedule I hereto, which date and time
may be postponed by agreement between you and the Company (such
date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities
shall be made to you for the respective accounts of the several
Underwriters against payment of the purchase price thereof to
or upon the order of the Company by wire transfer or certified
or official bank check or checks payable in immediately
available funds or next-day funds, all as set forth in Schedule
I hereto. Certificates for the Securities shall be registered
in such names and in such denominations as you may request not
less than two full business days in advance of the Closing
Date.
The Company agrees to have the Securities available
for inspection, checking and packaging by you in New York, New
York, not later than 1:00 P.M. on the business day immediately
preceding the Closing Date.
4. Offering by Underwriters. It is understood that
the several Underwriters proposes to offer the Securities for
sale to the public as set forth in the Final Prospectus.
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5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus or the Basic Prospectus) unless the Company has
furnished to you copies for your review prior to filing
and will not file any such proposed amendment or
supplement to which you reasonably object (except any
filings required to be made pursuant to the Exchange Act
or the rules and regulations thereunder). Subject to the
foregoing sentence, the Company will cause the Final
Prospectus to be filed with the Commission pursuant to
Rule 424(b)(2) or 424(b)(5) or will cause the Final
Prospectus to be transmitted by a means reasonably
calculated to result in filing with the Commission
pursuant to said Rule. The Company will promptly advise
you (i) when the Final Prospectus shall have been
transmitted to the Commission for filing or filed pursuant
to Rule 424(b)(2) or 424(b)(5), (ii) when any amendment to
the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment or
supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or the
initiation or the threatened initiation of any proceeding
for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or the threatened
initiation of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act,
any event occurs as a result of which the Final Prospectus
as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of
the circumstances under which they were made not
misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or
omission or an amendment which will effect such
compliance.
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(c) As soon as practicable, the Company will make
generally available to its security holders and to you an
earnings statement or statements of the Company which will
satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Underwriters and
counsel for the Underwriters without charge, copies of the
Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date, the Basic Prospectus and, so
long as delivery of a prospectus by the Underwriters or a
dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus, the Final Prospectus, any
amendments and supplements thereto and documents
incorporated by reference therein as you may reasonably
request. The Company will pay the expenses of printing
all documents relating to the offering of the Securities.
(e) The Company will arrange for the qualification
of the Securities for sale under the laws of such
jurisdictions as you may designate, will maintain such
qualifications in effect so long as required for the
distribution of the Securities and will arrange for the
determination of the legality of the Securities for
purchase by institutional investors; provided, however,
that the Company shall not be required to qualify as a
foreign corporation or to file any consent to service of
process under the laws of any jurisdiction or to comply
with any other requirements deemed by the Company to be
unduly burdensome.
(f) Until the business day following the Closing
Date, the Company will not without your consent offer,
sell or contract to sell, or announce the offering of, any
debt securities covered by the Registration Statement or
any other registration statement filed under the Act.
6. Conditions to the Obligations of the
Underwriters. The obligations of the Underwriters to purchase
the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the
Closing Date, to the accuracy of the statements of the Company
or the Company officers made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time,
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shall have been issued and no proceedings for that purpose
shall have been instituted or threatened; and the Final
Prospectus shall have been filed or the Company will cause
the Final Prospectus to be transmitted by a means
reasonably calculated to result in filing with the
Commission not later than 5:00 P.M., New York City time,
on the business day following the date hereof.
(b) The Company shall have furnished to the
Underwriters the opinion of Walter T. Woelfle, Esq.,
Director - Legal Services Department of the Company, James
D. Zakrajsheck, Counsel of the Company, or A. William
Finke, Esq., Counsel of the Company, dated the Closing
Date, to the effect that:
(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, with full
corporate power and authority to own its properties
and conduct its business as described in the Final
Prospectus and is duly qualified to do business as a
foreign corporation and is in good standing under the
laws of each jurisdiction which requires such
qualification wherein it owns or leases material
properties or conducts material business;
(ii) the Securities conform as to legal matters
in all material respects to the description thereof
contained in the Final Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and the
Trustee, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to
enforcement, to the qualifications set forth in the
next sentence); and the Securities have been duly
authorized by all necessary corporate action of the
Company, executed and authenticated in accordance
with the provisions of the Indenture (assuming that
the Securities have been duly authenticated by the
Trustee, which fact such counsel need not verify by
an inspection of the Securities) and constitute
legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and
enforceable in accordance with their terms (subject,
as to enforcement, to the qualifications set forth in
the next sentence). The opinions that the Indenture
and the Securities are enforceable in accordance with
their terms are subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to
time in effect and general equity principles;
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(iv) the Company conducts its business under
valid franchises, permits and licenses which contain
no burdensome restrictions and which are adequate for
the business of the Company in the territories which
it serves, except that the Company as no franchise in
several small areas where, for the most part, the
Company is serving certain customers at the request
of other companies who have franchises in those
areas;
(v) there is no pending legal proceeding or, to
the best knowledge of such counsel (after due
inquiry), threatened action, suit or other legal
proceeding before any court or governmental agency,
authority, or body or any arbitrator involving the
Company, of a character required to be disclosed in
the Registration Statement which is not adequately
disclosed in the Final Prospectus; there is no
franchise, contract or other document of a character
required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated by
reference in the Final Prospectus describing any
legal proceedings or material contracts or agreements
relating to the Company fairly summarize such
matters;
(vi) the Registration Statement and any
amendments thereto have become effective under the
Act; no stop order suspending the effectiveness of
the Registration Statement, as amended, has been
issued, no proceedings for that purpose have been
instituted or, to the best knowledge of such counsel,
threatened, and the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue
dates (other than the financial statements and other
financial and statistical information contained or
incorporated by reference therein as to which such
counsel need express no opinion) on their face
complied as to form in all material respects with the
applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and such
counsel has no reason to believe that the
Registration Statement, or any amendment thereof, at
the time it became effective and at the date of this
Agreement, contained any untrue statement of a
material fact or omitted to state any material fact
required to be stated therein or necessary to make
the statements therein not misleading or that the
Final Prospectus, as amended or supplemented,
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
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statements therein, in light of the circumstances
under which they were made, not misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) all requisite approvals of the Public
Service Commission of Wisconsin ("PSCW") and the
Michigan Public Service Commission ("MPSC") for the
execution and delivery of the Indenture and the
issuance and sale by the Company of the Securities to
the Underwriters under this Agreement have been
obtained; the Securities have been issued and sold to
the Underwriter by the Company in conformity with the
orders of such Commission issued with respect
thereto; and such counsel knows of no other approvals
of regulatory authorities required in connection with
such matters, other than approvals which may be
required under state securities laws;
(ix) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a
breach of, or constitute a default under the Restated
Articles of Incorporation or Bylaws of the Company,
as amended, or the terms of any indenture or other
agreement or instrument to which the Company is a
party or bound, or any law, rule, order, decision,
judgment or regulation, applicable to the Company of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company;
(x) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement; and
(xi) each of the Company and Wisconsin Energy
Corporation ("Wisconsin Energy") 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.
In rendering such opinion such counsel may rely
(A) as to matters of Michigan law relating to the
authority to do business and regulatory approval for the
Securities in Michigan upon the opinion of Messrs. Loomis,
Ewert, Parsley, Davis & Gotting, P.C., Michigan counsel to
the Company, furnished to the Underwriters; and (B) as to
matters of fact, to the extent he deems proper, on
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certificates of responsible officers of the Company, the
Trustee and public officials.
(c) The Company shall have furnished to the
Underwriters the opinion of Quarles & Brady, counsel for
the Company, dated the Closing Date, to the effect that:
(i) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act, and
constitutes a valid instrument legally binding upon
the Company; the Securities have been duly authorized
by all necessary corporate action of the Company,
have been duly issued (assuming that the Securities
have been duly authenticated by the Trustee, which
fact such counsel need not verify by an inspection of
the Securities), constitute legal, valid and binding
obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with
their terms subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from
time to time in effect and general equity principles;
(ii) the Company's Registration Statement on
Form S-3 relating to the Securities has become
effective under the Act and, to the best of the
knowledge of such counsel, no stop order proceedings
with respect thereto are pending or threatened under
Section 8(d) of the Act;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iv) all requisite approvals of the PSCW and the
MPSC for the execution and delivery of the Indenture
and the issuance and sale by the Company of the
Securities to the Underwriters under this Agreement
have been obtained; the Securities have been issued
and sold to the Underwriters by the Company in
conformity with the orders of such Commission issued
with respect thereto; and such counsel know of no
other approvals of regulatory authorities required in
connection with such matters, other than approvals
which may be required under state securities laws;
(v) the Securities conform as to legal matters
in all material respects to the description thereof
in the Final Prospectus insofar as relating to
provisions of the Indenture and the Debt Securities
referred to therein; and
(vi) the Registration Statement, when it became
effective, and the Final Prospectus, as of the date
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of the Prospectus Supplement, appeared on their face
to comply as to form, in all material respects, with
the requirements of the Act, the Trust Indenture Act
and the applicable rules and regulations of the
Commission thereunder and further that nothing came
to the attention of such counsel in the course of
their representation of the Company which has caused
such counsel to believe that the Registration
Statement, when it became effective, contained any
untrue statement of a material fact or omitted to
state any material fact required to be stated therein
or necessary in order to make the statements therein
not misleading or that the Final Prospectus, on the
date of the Prospectus Supplement and on the Closing
Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary
in order to make the statements therein, in light of
the circumstances under which they were made, not
misleading. Such opinion may state that such counsel
have not independently verified, do not pass upon and
do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained
in the Registration Statement and Final Prospectus
except for those made under the captions "Description
of Securities" in the Basic Prospectus and "Certain
Terms of the Debentures" and "Underwriting" in the
Prospectus Supplement insofar as they relate to the
provisions of documents therein described and that
they do not express any opinion or belief as to the
financial statements or other financial data or
statistical information contained or incorporated by
reference in the Registration Statement, the Basic
Prospectus or the Prospectus Supplement, as to the
incorporation of the Company or franchise matters or
as to the Statement of Eligibility on Form T-1 of the
Trustee.
In rendering such opinion or opinions, such counsel
may rely (A) as to [all] matters of Michigan law and the
exempt status of the Company and Wisconsin Energy under
the Public Utility Holding Company Act, upon the opinion
of Walter T. Woelfle, Esq., James D. Zakrajsheck, Esq., or
A. William Finke, Esq.; (B) as to [all] matters of
Michigan law relating to regulatory approval for the
Securities in Michigan upon the opinion of Loomis, Ewert,
Parsley, Davis & Gotting, P.C., Michigan counsel to the
Company, furnished to you; and (C) as to matters of fact,
to the extent they deem proper on certificates of
responsible officers of the Company, the Trustee and
public officials, and may state that they are not passing
upon the incorporation of the Company or its franchises.
(d) The Underwriters shall have received from Cahill
Gordon & Reindel, counsel for the Underwriters, such
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opinion or opinions, dated the Closing Date, with respect
to the issuance and sale of the Securities, the Indenture,
and other related matters as you may reasonably require,
and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them
to pass upon such matters.
In rendering such opinion such counsel may rely (A)
as to all matters of Wisconsin and Michigan law and the
exempt status of the Company and Wisconsin Energy under
the Public Utilities Holding Company Act, upon the opinion
of Walter T. Woelfle, Esq., James D. Zakrajsheck, Esq., or
A. William Finke, Esq.; (B) as to [all] matters of
Michigan law relating to regulatory approval for the
Securities in Michigan upon the opinion of Loomis, Ewert,
Parsley, Davis & Gotting, P.C., Michigan counsel to the
Company, furnished to you; and (C) as to matters of fact,
to the extent they deem proper, on certificates of
responsible officers of the Company, the Trustee and
public officials.
(e) The Company shall have furnished to you a
certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date,
to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and
the Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement, as amended, has been
issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in
the Final Prospectus, there has been no material
adverse change in the condition (financial or other),
earnings, business or properties of the Company,
whether or not arising from transactions in the
ordinary course of business, except as set forth in
or contemplated in the Final Prospectus.
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(f) At the time this Agreement is executed and at
the Closing Date, Price Waterhouse shall have furnished to
the Underwriters a letter or letters, dated as of the date
of this Agreement and the Closing Date (which may refer to
the letter previously delivered to the Underwriters), in
form and substance satisfactory to the Underwriters,
confirming that they are independent accountants within
the meaning of the Act and the applicable published rules
and regulations thereunder, and stating in effect that:
(i) in their opinion the audited financial
statements included or incorporated by reference in
the Registration Statement and the Final Prospectus
and reported on by them comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act and the
related published rules and regulations with respect
to registration statements on Form S-3;
(ii) on the basis of procedures (but not an
examination in accordance with generally accepted
auditing standards) which would not necessarily
reveal matters of significance with respect to the
comments set forth in such letter, consisting of:
a) reading the minutes of meetings of the
stockholders and directors of the Company since
a specified date as of the end of the last
period for which they have audited the financial
statements of the Company, as set forth in the
minute books, through a specified date not more
than five business days prior to the date of
such letter;
b) reading the unaudited interim
financial data of the Company included or
incorporated by reference in the Registration
Statement and the Final Prospectus and the
unaudited interim financial data as of the
latest date made available by the Company; and
c) making inquiries of certain officials
of the Company who have responsibility for
financial and accounting matters regarding the
specific items for which representations are
requested below;
nothing has come to their attention as a result of
the foregoing procedures that caused them to believe
that:
(1) any unaudited financial data included or
incorporated by reference in the Registration
Statement and the Final Prospectus do not comply as
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to form in all material respects with applicable
accounting requirements of the Exchange Act as it
applies to Form 10-Q and the published rules and
regulations thereunder; and said unaudited financial
data are not stated on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to
the date of the most recent financial data
incorporated in the Registration Statement and the
Final Prospectus, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the long-term debt of
the Company or capital stock of the Company or
decreases in the stockholder's equity of the Company
or any decrease in retained earnings of the Company
as compared with the amounts shown on the most recent
balance sheet incorporated by reference in the
Registration Statement and the Final Prospectus, or
for the period from the date of the most recent
financial data incorporated by reference in the
Registration Statement and the Final Prospectus to
the date of the latest available unaudited
consolidated financial data of the Company there were
any decreases, as compared with the corresponding
period in the preceding year, in Operating Revenues,
Operating Income or Net Income of the Company, except
in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by you; and
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company subject to
its system of internal accounting controls) set forth
in the Registration Statement, as amended, and the
Final Prospectus, as amended or supplemented, and in
Exhibit 12 to the Registration Statement, including
the information included under the captions
"Capitalization" in the Final Prospectus or "Certain
Summary Financial Information" or "Recent
Developments" in the Basic Prospectus and the Final
Prospectus, or included or incorporated by reference
in Items 1, 3, 5, 6, 7 and 11 of the Company's annual
report on Form 10-K incorporated therein or in
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or
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incorporated in any of the Company's quarterly
reports on Form 10-Q incorporated by reference
therein, agrees with the accounting records of the
Company, excluding any question of legal
interpretation.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or
affecting particularly the business or properties of the
Company the effect of which, in any case referred to in
clause (i) or (ii) above, is, in your judgment, so
material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration
Statement and the Final Prospectus.
(h) Subsequent to the execution of this Agreement,
there shall not have been any decrease in the ratings of
any of the Company's debt securities by Moody's Investors
Service, Inc., or Standard & Poor's Corporation.
(i) Prior to the Closing Date, the Company shall
have furnished to you such further information,
certificates and documents as you may reasonably request.
(j) The issuance and sale of the Securities as
contemplated in this Agreement and the Final Prospectus
shall have been duly authorized and approved by orders of
the PSCW and the MPSC; such orders shall be in full force
and effect at the Closing Date and shall not contain any
modifications from their form at the date hereof not
reasonably acceptable to you; and no action, authorization
or approval of any other regulatory authority or court
shall then be required in connection with the issuance and
sale by the Company of the Securities.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement
shall not be in all material respects reasonably satisfactory
in form and substance to you, this Agreement and all the
obligations of the Underwriter hereunder may be cancelled by
you at, or at any time prior to, the Closing Date. Notice of
such cancellation shall be given to the Company in writing or
by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the
sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters
15
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set forth in Section 6 hereof or any condition to the
obligations of the Company in Section 10 hereof is not
satisfied, because of any termination pursuant to Section 11 or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof, other than by reason of a default by the
Underwriters, the Company will reimburse the Underwriters upon
demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been
incurred by the Underwriters in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the
Basic Prospectus or the Final Prospectus, any Preliminary Final
Prospectus or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i)
the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter
specifically for use in connection with the preparation thereof
and (ii) such indemnity with respect to the Basic Prospectus or
any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final
Prospectus (or the Final 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 Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final
16
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Prospectus (or the Final Prospectus, as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company, each of its directors, each of its
officers who signs the Registration Statement and each person
who controls the Company within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter,
furnished to the Company by or on behalf of the Underwriter,
specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that
if the defendants in any such action include both the
indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there
may be legal defenses available to it or other indemnified
parties which are different from or additional to those
available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense
of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by you in
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the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in paragraph (a) of this Section 8 is due in
accordance with its terms but is for any reason held by a court
to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the
underwriting discount bears to the sum of such discount and the
purchase price of the Securities and the Company is responsible
for the balance; provided, however, that (y) in no case shall
any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities)
be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased hereunder and
(z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the
Company, subject in each case to clauses (y) and (z) of this
paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or
parties under this paragraph (d), notify such party or parties
from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than
under this paragraph (d). This contribution agreement will be
18
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in addition to any liability which the Company or any
Underwriter may otherwise have.
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters
do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as
set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as you
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained
in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Conditions to the Obligations of the Company.
The obligation of the Company to sell the Securities shall be
subject to the condition that the issuance and sale of the
Securities as contemplated in this Agreement and the Final
Prospectus shall have been duly authorized and approved by the
order of the PSCW and MPSC; such order shall be in full force
and effect at the Closing Date and shall not contain any
modification from its form at the date hereof not reasonably
acceptable to the Company; and no authorization or approval of
any other regulatory authority shall then be required in
connection with the issuance and sale by the Company of the
Securities.
11. Termination. This Agreement shall be subject to
termination in your absolute discretion by notice given to the
Company prior to delivery of and payment for the Securities, if
prior to such time (i) trading in the common stock of Wisconsin
Energy Corporation shall have been suspended by the Commission
or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been
19
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suspended or limited or minimum prices shall have been
established on such Exchange; (ii) a banking moratorium shall
have been declared either by federal or New York State
authorities; or (iii) there shall have occurred any outbreak or
material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or
crisis the effect of which on the financial markets of the
United States is such as to make it, in your judgment,
impracticable to market the Securities.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriter set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be
in writing and effective only on receipt, and, if sent to the
Underwriters will be mailed, delivered or telegraphed and
confirmed to you, at the address set forth in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 231 West Michigan Street,
P.O. Box 2046, Milwaukee, Wisconsin 53201, attention of the
Chief Financial Officer.
14. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of
New York.
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If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the
Company and the Underwriters.
Very truly yours,
WISCONSIN ELECTRIC POWER COMPANY
By:
------------------------------
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[NAME(S) OF REPRESENTATIVE(S)]
By:
---------------------------
Authorized Signatory
For itself and the other Under-
writers, if any, named in
Schedule II to the foregoing
Agreement.
21
SCHEDULE I
Underwriting Agreement dated _________, 199_
Registration Statement No. 33-_______
Name and Address of Underwriter(s):
Title and Certain Terms of Securities:
Title: ______% ________ due _______,_____
Principal amount: $_________
Maturity: ________, ____ (__ years)
Interest Rate: ______%
Interest Payment Dates: _________ and _________
Sinking Fund:
Redemption provisions:
Purchase Price (include accrued interest or amortization,
if any): ______% of principal amount, plus accrued
interest from _______, 199_ to the date of delivery
Payment for the Securities shall be made in the following form
and funds:
Closing Date, Time and Location:
________, 199_ ____ _.M. (_________ time)
Offices of:
Securities delivered to:
22
SCHEDULE II
Underwriter Amount
- ----------- ------
$
_________
Total $_________