EXECUTION COPY
WPS RESOURCES CORPORATION
UNDERWRITING AGREEMENT
November 19, 2003
A. G. Edwards & Sons, Inc.
Robert W. Baird & Co. Incorporated
Edward D. Jones & Co., L.P.
The Williams Capital Group, L.P.
c/o A. G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
WPS Resources Corporation, a Wisconsin corporation (the
"Company"), confirms its agreement (the "Agreement") with the underwriters named
in Schedule A (collectively, the "Underwriters," which term shall also include
any underwriter substituted as provided in Section 10 of this Agreement), for
whom you are acting as representatives (the "Representatives"), with respect to
(a) the issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the number of shares of common stock, par
value $1.00 per share, of the Company (the "Common Stock"), including the
related common stock purchase rights (the "Rights") provided for in the Rights
Agreement, dated as of December 12, 1996, as amended, between the Company and
American Stock Transfer & Trust Company (as successor to U.S. Bank National
Association and Firstar Trust Company), as rights agent (the "Rights Agreement")
(all references herein to the Common Stock shall include the Rights unless the
context indicates otherwise) indicated in Schedule A hereto at the public
offering price and on the other terms and conditions set forth on Schedule B,
and (b) the grant by the Company to the Underwriters, acting severally and not
jointly, of an option to purchase all or any part of up to 525,000 additional
shares, in the aggregate, to cover over-allotments, as more fully set forth in
Section 2(b). The 3,500,000 shares of Common Stock referred to in Schedule A are
collectively referred to herein as the "Firm Shares," the 525,000 additional
shares to be issued and sold to the Underwriters upon exercise of the option
described in the preceding sentence are collectively referred to herein as the
"Option Shares," and the Firm Shares and the Option Shares are collectively
referred to herein as the "Shares." If the firm or firms listed in Schedule A
hereto include only the firm or firms described above as Representatives, then
the terms "Underwriters" and "Representatives", as used herein, shall each be
deemed to refer to such firm or firms. The Shares are more fully described in
the Final Prospectus (as defined below).
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-104787) relating to the Shares and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), and has filed such amendments thereto as may have been required to the
date hereof. Such registration statement, as amended, has been declared
effective by the Commission. The Company has filed with the Commission pursuant
to Rule 424(b) under the 1933 Act any preliminary prospectus used in connection
with the offering of the Shares prior to the date hereof and required to be so
filed. The Company proposes to file with the Commission pursuant to Rule 424(b)
under the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of distribution
thereof. 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 "Base Prospectus;" and such supplemented
form of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any preliminary form of the Final
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 Base Prospectus, any Preliminary 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 "1934 Act"), on
or before the date of this Agreement, or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be; provided
that if the Company files a registration statement with the Commission pursuant
to Rule 462(b) under the Act (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to the "Registration Statement" shall also be
deemed to include the Rule 462 Registration Statement; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date of this Agreement, or the issue date
of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules and other information
which is "contained," "included" or "stated" in the Registration Statement or
the Final Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information that are or are deemed to be incorporated by reference in the
Registration Statement or the Final Prospectus, as the case may be.
For purposes of this Agreement, all references to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, the
Final Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("EDGAR").
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as
of the Closing Time referred to in Section 2(d) hereof and as of each
Date of Delivery (if any) referred to in Section 2(b) hereof and agrees
with each Underwriter as follows.
(i) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation under the
laws of the State of Wisconsin with power and authority (corporate and
other) to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Final
Prospectus; the Company has not filed Articles of Dissolution with the
Department of Financial Institutions of the State of Wisconsin, and no
grounds exist for the Department of Financial Institutions of the State
of Wisconsin to dissolve such corporation administratively pursuant to
the provisions of the Wisconsin Business Corporation Law; the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which its ownership or lease
of substantial properties or the conduct of its business requires such
qualification, except where the failure to so qualify and be in good
standing would not result in a material adverse change in the condition
(financial or other), net worth or results of operations or business
affairs of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect")
(ii) Subsidiaries. Each of Wisconsin Public Service
Corporation, a Wisconsin corporation ("WPSC"), WPS Resources Capital
Corporation, a Wisconsin corporation, WPS Energy Services, Inc., a
Wisconsin corporation, and WPS Power Development, Inc., a Wisconsin
corporation (each a "Significant Subsidiary"), 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 conduct its
business as described in the Registration Statement and Final
Prospectus; no Significant Subsidiary which is incorporated under the
laws of the State of Wisconsin has filed Articles of Dissolution with
the Department of Financial Institutions of the State of Wisconsin, and
no grounds exist for the Department of Financial Institutions of the
State of Wisconsin to dissolve any such Significant Subsidiary
administratively pursuant to the provisions of the Wisconsin Business
Corporation Law; each Significant Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which the ownership or lease of substantial
properties or the conduct of its business requires such qualification,
except where the failure to so qualify or to be in good standing would
not result in a Material Adverse Effect.
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(iii) Authorization of Stock of the Company. All of the issued
and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable, except with
respect to wage claims of employees of the Company as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as
such statutory provision has been judicially interpreted; and (A) the
authorized, issued and outstanding capital stock of the Company is as
set forth in the Final Prospectus (except for subsequent issuances, if
any, pursuant to the Company's Stock Investment Plan or any employee or
director benefit or compensation plans of the Company or its
wholly-owned subsidiaries described in, or filed or incorporated by
reference as an exhibit to, the documents incorporated by reference in
the Final Prospectus), (B) the certificate for each outstanding share
of Common Stock also represents one Right per share, and (C) the
outstanding Rights have been duly authorized and validly issued under
the Rights Agreement and are entitled to the benefits thereof.
(iv) Ownership of Significant Subsidiaries. All of the issued
and outstanding shares of capital stock of the Significant Subsidiaries
have been duly and validly issued, are fully paid and non-assessable,
except with respect to wage claims of employees of those Significant
Subsidiaries which are subject to Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision has
been judicially interpreted; the Company owns, beneficially and of
record, all of the common stock of each Significant Subsidiary,
directly or through subsidiaries, in each case free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of the Significant Subsidiaries
were issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. Other than the Significant
Subsidiaries, the Company has no subsidiaries which, either
individually or considered in the aggregate as a single subsidiary,
constitute a "significant subsidiary" as defined in Rule 405 under the
1933 Act Regulations.
(v) Compliance with Registration Requirements.
(A) The Company meets the requirements for use of
Form S-3 under the 1933 Act and the rules and regulations of the 1933
Act (the "1933 Act Regulations"). The Registration Statement has become
effective under the 1933 Act and the 1933 Act Regulations, and no stop
order suspending the effectiveness of such Registration Statement has
been issued, and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, threatened by the
Commission. The Company has complied with any request on the part of
the Commission for additional information.
(B) On the effective date of the Registration
Statement (including any Rule 462(b) Registration Statement), as of the
date hereof, when, prior to the Closing Time (as hereinafter defined),
any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
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Registration Statement), at the Closing Time and at each Date of
Delivery, if any, (i) the Registration Statement, as amended as of any
such time, complied or will comply in all material respects with the
applicable requirements of the 1933 Act and the 1933 Act Regulations,
and (ii) the Registration Statement, as amended as of any such time,
did not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or any
amendment or supplement thereto made in reliance upon and in conformity
with information furnished to the Company in writing by an Underwriter,
or by the Representatives on behalf of an Underwriter, expressly for
use in the Registration Statement or any amendment or supplement
thereto.
(C) On its issue date, when filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, and, in the case of the
Final Prospectus, as of the date hereof and at the Closing Time and on
each Date of Delivery, if any, (i) each Preliminary Prospectus and the
Final Prospectus complied or will comply when so filed in all material
respects with the applicable requirements of the 1933 Act and the 1933
Act Regulations, and (ii) each Preliminary Prospectus and the Final
Prospectus did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from any Preliminary Prospectus or the Final
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by an Underwriter, or by the
Representatives on behalf of an Underwriter, expressly for use in the
Preliminary Prospectus or the Final Prospectus. Each Preliminary
Prospectus and the Final Prospectus delivered to the Underwriters for
use in connection with the offering of the Securities was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T
under the 1933 Act Regulations.
(vi) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and Final Prospectus, (A) at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act (the "1934 Act Regulations"), and (B)
at the time the Registration Statement and any amendments thereto
became effective, at the time any Preliminary Prospectus and the Final
Prospectus were issued, at the Closing Time and on each Date of
Delivery, if any, when read together with the other information in the
Registration Statement, the Preliminary Prospectus and the Final
Prospectus, as applicable, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
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(vii) Accountants. The accountants who audited the annual
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement and the Final Prospectus are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations.
(viii) Financial Statements. The financial statements and any
supporting schedules included or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, and the Final
Prospectus, present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results
of operations, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles which have been consistently applied in all
material respects throughout the periods involved, except as may
otherwise be stated therein and except to the extent that certain
information normally disclosed in financial statements and related
notes may be omitted or condensed in the quarterly financial statements
of the Company and its consolidated subsidiaries if done so pursuant to
the rules and regulations of the Commission.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and, upon execution
and delivery by or on behalf of the Underwriters, will constitute the
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (the "Bankruptcy Exceptions").
(x) Authorization of the Shares and Rights. The Shares have
been duly authorized and, when paid for and delivered at the Closing
Time or on each Date of Delivery, as applicable, will be validly issued
and fully paid and nonassessable, except with respect to wage claims of
employees of the Company as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision has
been judicially interpreted; the related Rights have been duly
authorized and validly issued under the Rights Agreement and are
entitled to the benefits thereof; and neither the issuance of the
Shares nor the issuance of the related Rights is subject to preemptive
rights.
(xi) Conforming Documents. The Shares and the Rights will
conform in all material respects to the respective statements relating
thereto contained in any Preliminary Prospectus, the Final Prospectus
and the Registration Statement and will be in substantially the
respective forms filed or incorporated by reference, as the case may
be, as exhibits to the Registration Statement.
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(xii) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any amendment thereto, and the Final Prospectus and except
as may otherwise be stated or contemplated therein, (a) the Company and
its subsidiaries considered as one enterprise have not sustained any
material loss or interference with their business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, (b)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its subsidiaries considered
as one enterprise, except for borrowings under existing revolving
credit agreements and pursuant to the Company's existing commercial
paper and 4(2) short-term note program, or any material adverse change,
or any development involving a prospective material adverse change, in
the condition (financial or other), net worth or results of operations
or 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 (c) there has not been any
material transaction entered into by the Company and its subsidiaries
considered as one enterprise, other than transactions in the ordinary
course of business. The Company does not have any material contingent
obligations required to be disclosed in the Registration Statement and
Final Prospectus which are not disclosed therein.
(xiii) No Defaults; Regulatory Compliance. Neither the Company
nor any Significant Subsidiary is in violation of its articles of
incorporation or by-laws or in breach or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in the Indenture or in any other material contract, mortgage,
loan agreement, lease, note or other instrument to which it is a party
or by which it or any of them may be bound or to which any of their
properties may be subject, or any rule, order, law, administrative
regulation or administrative or court order, except to the extent set
forth in the Registration Statement and Final Prospectus.
(xiv) No Conflicts. The execution and delivery of this
Agreement and the issuance, sale and delivery by the Company of the
Shares, the compliance by the Company with the provisions of this
Agreement and the use of the proceeds from the sale of the Shares as
described in the Final Prospectus under the caption "Use of Proceeds"
do not and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the articles of
incorporation or by-laws of the Company, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Significant Subsidiary is a
party, or by which it or any of them is bound or to which any of their
properties may be subject, or result in the violation of any law,
order, rule, administrative regulation or administrative or court
decree applicable to the Company or any Significant Subsidiary of any
court or of any Federal or state regulatory body or administrative
agency or other governmental body having jurisdiction over the Company
or any Significant Subsidiary or their respective
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properties; there are no proceedings, at law or in equity or before any
governmental agency or body, pending, or to the knowledge of the
Company threatened, which affect or may affect any of the transactions
contemplated by this Agreement; and the Company has full power and
lawful authority to authorize, issue and sell the Shares on the terms
and conditions herein set forth.
(xv) No Consents. No filing with, or consent, approval,
authorization, order, or decree of, any court or governmental authority
or agency is necessary or required for the performance by the Company
of its obligations hereunder or in connection with the offering,
issuance or sale of the Shares hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations or state securities laws.
(xvi) Public Utility Holding Company Act Compliance. The
Company is not currently required to register as a "holding company"
under the Public Utilities Holding Company Act of 1935, as amended.
(xvii) Legal Proceedings. Except as set forth in the
Registration Statement and Final Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, overtly threatened, against or affecting
the Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement or the Final Prospectus or
which might result in a Material Adverse Effect or adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement or the Final Prospectus, including ordinary
routine litigation incidental to the business, would not, if adversely
determined, result in a Material Adverse Effect.
(xviii) Exhibits. There are no contracts or other documents of
the Company or any of its subsidiaries which are required to be
described in the Registration Statement, any Preliminary Prospectus,
the Final Prospectus, or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xix) Licenses and Authorizations. The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable
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decision, ruling or finding, would have a Material Adverse Effect,
except as set forth in or contemplated in the Registration Statement
and Final Prospectus.
(xx) Restrictions on Dividends. The Final Prospectus
(including the documents incorporated by reference therein) accurately
describes the most restrictive of the existing limitations on the
payment of dividends by WPSC on the shares of common stock of WPSC held
by the Company.
(xxi) Internal Accounting Controls. The Company and each of
its subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxii) Environmental Compliance. The Company and each of its
subsidiaries are (i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Registration Statement
and Final Prospectus. Except as set forth in the Registration Statement
and Final Prospectus, neither the Company nor any of its subsidiaries
has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, except in such instances which would not,
individually or in the aggregate, have a Material Adverse Effect.
(xxiii) Investment Company Act. The Company is not an
"investment company or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and is not required to register
or take any other action with respect to or under the Investment
Company Act by reason of the issuance of the Shares by the Company.
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(xxiv) Listing of the Securities. The Shares have been
approved for listing on the New York Stock Exchange.
(b) Officer Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries that is delivered to the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters stated therein.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Purchase and Sale of the Firm Shares. Subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to issue and sell to each Underwriter, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the public offering price and upon the terms and conditions set forth in
Schedule B hereto the number of Firm Shares set forth opposite such
Underwriter's name in Schedule A hereto.
(b) Purchase and Sale of the Option Shares. In addition,
subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase, in the aggregate, up to an
additional 525,000 shares of Common Stock at the public offering price per share
set forth in Schedule B, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not
payable on the Option Shares. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Firm Shares upon notice by the
Representatives to the Company setting forth the number of Option Shares as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery of such Option Shares. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven full business days after the exercise of the
option nor in any event prior to the Closing Time (as defined in Section 2(d)).
If the option is exercised as to all or any portion of the Option Shares, each
of the Underwriters, acting severally and not jointly, shall purchase that
proportion of the total number of Option Shares then being purchased which the
number of Firm Shares set forth opposite such Underwriter's name in Schedule A
bears to the total number of Firm Shares, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
fractional shares.
(c) Underwriting Commission. As compensation for their
commitments hereunder, the Company will pay to the Representatives, for the
account of the Underwriters, at the Closing Time or on each Date of Delivery, if
any, an amount equal to the total underwriting commission specified in Schedule
B for the Firm Shares or the Option Shares sold and delivered by the Company at
the Closing Time or such Date of Delivery, as applicable.
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(d) Delivery and Payment. Delivery of the Shares shall be made
through The Depository Trust Company ("DTC"). The closing of the sale of the
Firm Shares shall take place at the offices of Foley & Lardner, 777 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202 or at such other place as shall be
agreed upon by the Company and the Underwriters, at 9:00 A.M. (central time) on
the third 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 Underwriters and
the Company (such time and date being herein called the "Closing Time"). In the
event that any or all of the Option Securities are purchased by the
Underwriters, the closing of the sale of the Option Shares shall take place at
the above-mentioned offices or at such other place as shall be agreed upon by
the Company and the Representatives on each Date of Delivery specified in the
notice from the Underwriters to the Company.
At the Closing Time and on each Date of Delivery, the Company
will deliver the Firm Shares or the Option Shares, as applicable, to the
Representatives, for the account of each Underwriter, against payment by and on
behalf of such Underwriter, of a purchase price equal to the purchase price
specified in Section 2(a) or 2(b), as applicable. If the Firm Shares or the
Option Shares are to be issued in book-entry form, such delivery shall be made
by causing DTC to credit the Firm Shares or the Option Shares, as applicable, to
the account of the Representatives at DTC. Payment of the purchase price shall
be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, issue
receipt for, and make payment of the purchase price for, the Firm Shares and the
Option Shares which it has agreed to purchase.
At the Closing Time or on each Date of Delivery, the Company
will pay, or cause to be paid, the total underwriting commission payable to the
Underwriters at such time under Section 2(c) with respect to the Firm Shares or
the Option Shares, as applicable, to a bank account designated by the
Representatives, on behalf of the Underwriters, by wire transfer of immediately
available funds. If mutually agreed by the Company and the Underwriters, the
amount of the total underwriting commission due to the Underwriters may be
offset by the Underwriters against the amount of the purchase price for the Firm
Shares or the Option Shares, as applicable, payable by the Underwriters to the
Company pursuant to Section 2(a) or 2(b), as applicable.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. Immediately following the execution of this Agreement, the Company
will prepare a Final Prospectus setting forth the number of Shares covered
thereby, the names of the Underwriters and the number of Shares which each
severally has agreed to purchase, the names of the Representatives, the price at
which the Shares are to be purchased by the Underwriters from the
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Company, the initial public offering price, the selling concession and
reallowance, if any, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the Shares. The
Company will promptly transmit copies of the Final Prospectus to the Commission
for filing pursuant to Rule 424 of the 1933 Act and will furnish to the
Underwriters named therein as many copies of the Final Prospectus and any
Preliminary Prospectus as such Underwriters shall reasonably request.
(b) Amendments. The Company will notify the Representatives
immediately, and promptly confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or (ii) of the mailing or the delivery to the Commission for filing, after the
date of this Agreement and prior to the Closing Time, of any supplement to the
Final Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference into the Registration Statement or Final
Prospectus, (iii) of the receipt of any comments or other communications from
the Commission with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of any order preventing or suspending the use of any Preliminary
Prospectus, or of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424 (b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
The Company will give the Underwriters notice of its intention
to file or prepare any amendment to the Registration Statement or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Final Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriters 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 (excluding documents incorporated by reference in the Registration
Statement) to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Underwriters and counsel for the Underwriters,
without charge, such number of signed and conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts as the Underwriters may reasonably request.
The copies
12
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 EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will furnish to each
Underwriter, without charge, during the period when the Final Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Final Prospectus (as amended or supplemented following the date of
this Agreement) as such Underwriter may reasonably request. The Final Prospectus
(and any amendments or supplements thereto following the date of this Agreement)
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Final Prospectus. If
at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Shares, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Final Prospectus in order that the Final Prospectus will not
include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Final Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Final Prospectus comply with such requirements, and the Company will furnish to
the Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Company will use the proceeds
received by it from the sale of the Shares in the manner specified in the Final
Prospectus under "Use of Proceeds."
(h) Restriction on Sale of Common Stock. For the period
beginning on the date of this Agreement and ending on the date specified in
Schedule B, the Company will not, without the Representatives' prior written
consent, directly or indirectly, sell, offer to sell, grant any option for the
sale of, enter into an agreement to sell, or otherwise dispose of, any shares of
13
Common Stock or any securities convertible into or exercisable for shares of
Common Stock, except for shares of Common Stock sold pursuant to this Agreement
and shares of Common Stock offered and sold under the Company's Stock Investment
Plan or employee or director benefit or compensation plans of the Company or its
wholly-owned subsidiaries described in, or filed or incorporated by reference as
an exhibit to, the documents incorporated or deemed incorporated by reference in
the Registration Statement and Final Prospectus, and the Company will not file a
registration statement under the 1933 Act with respect to any such securities or
any such securities of the Company held by others.
(i) Reporting Requirements. The Company, during the period
when the Final Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(j) Listing of Shares. The Company will file all documents and
notices and take such further actions as may be required to list the Shares on
the New York Stock Exchange.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of the Company's obligations under this
Agreement, including, but not limited to, (i) the preparation, reproduction and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Shares to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance, or delivery of the Securities, (iii) all fees and
expenses in connection with the listing of the Shares on the New York Stock
Exchange, (iv) the printing and delivery to the Underwriters of copies of each
Preliminary Prospectus, the Final Prospectus, and any amendments or supplements
thereto, (v) the fees and expenses of any transfer agent or registrar for the
Shares, and (vi) the cost, if any, of qualifying the Shares with The Depository
Trust Company.
(b) Termination of Agreement. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 5 or Section
10(b) hereof, the Company shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. (a) The
obligations of the several Underwriters hereunder to purchase the Firm Share are
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(i) Effectiveness of Registration Statement. The Final
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period
14
prescribed for such filing by the 1933 Act Regulations, 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.
(ii) Opinion of Counsel for the Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Foley & Lardner, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
set forth in Exhibit A hereto.
(iii) Opinion of Counsel for Underwriters. At Closing Time,
the Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Schiff Hardin & Waite, counsel for the Underwriters,
with respect to the validity of the Shares, the Registration Statement,
the Final Prospectus and such other related matters as the Underwriters
may reasonably request (it being understood that such counsel may rely
as to all matters of Wisconsin law and legal conclusions based thereon
upon the opinion of counsel for the Company referred to in Section
5(a)(ii)). Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(iv) Officer Certificates. 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 Final Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Underwriters shall have received
certificates 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 (A) there has been no such
material adverse change, (B) 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, (C) 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 (D) 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, to the best knowledge of the Company, are
threatened by the Commission.
(v) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Deloitte &
Touche LLP a letter, dated as of the date hereof, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
15
(A) they are independent public accountants with
respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the applicable 1933 Act Regulations;
(B) in their opinion, the audited consolidated
financial statements and financial statement schedule(s)
incorporated by reference in the Registration Statement and
the Final Prospectus and included in the Company's Current
Report on Form 8-K, dated August 1, 2003 (the "Form 8-K"),
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the applicable 1934 Act
Regulations;
(C) on the basis of (I) the performance of procedures
specified by the American Institute of Public Accountants for
a review of interim financial information as described in
Statement on Auditing Standards No. 71, Interim Financial
Information, on the unaudited consolidated balance sheets, the
unaudited consolidated statements of income, and the unaudited
consolidated statements of cash flows, of the Company and its
subsidiaries included in the Company and WPSC's quarterly
reports on Form 10-Q filed with the Commission under Section
13 of the 1934 Act (the "Form 10-Q's") subsequent to the
Company's most recent Annual Report on Form 10-K (the "Form
10-K"), (II) a reading of the latest available unaudited
financial statements of the Company and its subsidiaries,
(III) a reading of the minutes of the Annual Meeting
of Shareholders and the latest minutes of meetings of the
Board of Directors of the Company as set forth in the minute
books for the current year, and (IV) inquiries of the officers
of the Company who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance with
generally accepted accounting procedures and would not
necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the purposes of the several
Underwriters), nothing has come to their attention which
caused them to believe that (1) any material modifications
should be made to the unaudited consolidated financial
statements included in the Form 10-Q's for them to be in
conformity with generally accepted accounting procedures; (2)
the unaudited consolidated financial statements included in
the Form 10-Q's do not comply as to form in all material
respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations, as they apply to Form
10-Q, or (3) at the date of the latest available consolidated
financial statements and at a specified date not more than
three business days prior to the date of such letter, there
was any change in the consolidated capital stock or increase
in the consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net assets or
shareholders' equity of the
16
Company, in each case as compared with the amounts shown in
the most recent consolidated balance sheet of the Company
incorporated by reference into the Registration Statement and
the Final Prospectus or, during the period from the date of
such balance sheet to a specified date not more than three
business days prior to the date of such letter, based upon
inquiries of the appropriate officers of the Company, there
were any decreases, as compared with the corresponding
period in the preceding year, in consolidated operating
revenues, consolidated net income or net income per share,
except in each case as set forth in or contemplated by the
Registration Statement and the Final Prospectus or except for
such exceptions enumerated in such letter as shall have been
agreed to by the Underwriters and the Company; and
(D) in addition to the audit referred to in their
report appearing in the Form 8-K incorporated by reference in
the Registration Statement and the Final Prospectus and the
limited procedures referred to in clause (C) above, they have
carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages, and financial information which are included or
incorporated by reference in the Registration Statement and
the Final Prospectus and which are specified by the
Underwriters, and have found such amounts, percentages, and
financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(vi) Bring-down Comfort Letter. At Closing Time, the
Underwriters shall have received from Deloitte & Touche LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (v) of
this Section, except that the specified date referred to shall be a
date not more than three calendar days prior to Closing Time.
(vii) Approval of Listing. The Shares shall have been
duly listed, subject to official notice of issuance, on the New York
Stock Exchange.
(b) In the event that the Underwriters exercise their option
to acquire the Option Shares, their several obligations to purchase the Option
Shares are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary delivered pursuant to the provisions hereof, in each
case on and as of the Date of Delivery, and to the satisfaction as of the Date
of Delivery of each of the conditions set forth in Section 5(a) (i) through
(vii), except that (i) the opinions called for in Section 5(a)(ii) and (iii)
shall be revised to reflect the sale of the Option Shares and shall be dated the
Date of Delivery, if different from the Closing Time, and (ii) the bring-down
comfort letter called for in Section 5(a)(vi) shall be dated the Date of
Delivery, if different from the Closing Time, and the specified date referred to
shall be a date not more than three calendar days prior to the Date of Delivery,
if different from the Closing Time.
17
(c) Additional Documents. At the Closing Time and on each Date
of Delivery, if any, 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 Shares as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Shares as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and their counsel.
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, on behalf of the Underwriters, by notice to the Company
at any time at or prior to Closing Time, or, in the case of any condition to the
purchase of Option Shares, at any time at or prior to a Date of Delivery which
is after the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus or the Final
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, or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Representatives)
reasonably incurred in
18
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, or any such alleged untrue statement or
omission, at the time that such expense is incurred, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment or supplement thereto) or the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus (or any amendment or supplement
thereto); and provided further, that the foregoing indemnity with respect to any
untrue statement or omission from a Preliminary Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting such loss, liability, claim, damage or expense
purchased any of the Shares that are the subject thereof if the Company shall
sustain the burden of proving that: (i) the untrue statement or omission
contained in the Preliminary Prospectus (excluding documents incorporated by
reference) was corrected, (ii) such person was not sent or given a copy of the
Final Prospectus (excluding documents incorporated by reference) which corrected
the untrue statement or omission at or prior to the written confirmation of the
sale of such Shares to such person if required by applicable law, and (iii) the
Company satisfied its obligation to provide a sufficient number of copies of the
Final Prospectus to such Underwriter.
(b) Indemnification of Company, Officers and Directors. Each
Underwriter severally agrees to indemnify and hold harmless the Company, the
Company's directors, each of the Company's officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Preliminary Prospectus
or the Final Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or in such Preliminary Prospectus or the
Final 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
19
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by A. G. Edwards & Sons,
Inc., in consultation with the other Representatives, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company, in each case reasonably acceptable to
the indemnifying party. 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 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.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares 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 Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Company and the
total underwriting commission received by the Underwriters, in each case as set
forth on the cover of the Final Prospectus, bear to the aggregate initial public
offering price of the Shares as set forth on such cover.
20
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 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 Shares 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 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 1933 Act) 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, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company,
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Shares set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Shares to the Underwriters.
21
SECTION 9. TERMINATION OF AGREEMENT
(a) Termination; General. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to the 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 Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Shares or to enforce contracts for the sale of the
Shares, 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 New York Stock Exchange has been suspended or
materially limited, 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 governmental authority, or if a banking
moratorium has been declared by either Federal, New York or Wisconsin
authorities or a material disruption in clearance or settlement systems in the
United States securities markets shall have occurred.
(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 UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Shares (other than
for some reason to justify, in accordance with the provisions hereof, the
cancellation or termination of its or their obligations hereunder) which it or
they are obligated to purchase under this Agreement (the "Defaulted Shares"),
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 Shares in
such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed 10% of
the number of Shares 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
22
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the
number of Shares to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option Shares to be
purchased and sold on such Date of Delivery, 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, or, in the case of a Date of Delivery which is
after Closing Time, which does not result in a termination of the obligation of
the Underwriters to purchase and the Company to sell the relevant Option Shares,
as the case may be, either the Representatives or the Company shall have the
right to postpone the Closing Time or the relevant Date of Delivery for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Final Prospectus or in any other documents or
arrangements.
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 A. G. Edwards & Sons, Inc. at One North
Jefferson Avenue, St. Louis, Missouri 63103, attention Equity Syndicate Manager,
(fax no.: 314-955-5515) and notices to the Company shall be directed to it at
700 North Adams Street, P. O. Box 19001, Green Bay, Wisconsin 54307, attention
Joseph P. O'Leary (fax no.: 920-433-7653).
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company, and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company, and their respective successors and the
controlling persons, 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 and the Company and their
respective successors, and said controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Shares from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
23
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. SPECIFIED
TIMES OF DAY REFER TO CENTRAL TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 15. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By: /s/ Joseph P. O'Leary
-------------------------------------
Name: Joseph P. O'Leary
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
A. G. EDWARDS & SONS, INC.
ROBERT W. BAIRD & CO. INCORPORATED
EDWARD D. JONES & CO., L.P.
THE WILLIAMS CAPITAL GROUP, L.P.
By: A. G. EDWARDS & SONS, INC.
By: /s/ Michael L. Essex
---------------------------------
Name: Michael L. Essex
Title: Vice President
25
SCHEDULE A
COMMON STOCK
Name of Underwriters No. of Shares
- -------------------- -------------
A. G. Edwards & Sons, Inc. 1,925,000
Robert W. Baird & Co. Incorporated 525,000
Edward D. Jones & Co., L.P. 525,000
The Williams Capital Group, L.P. 525,000
---------
Total 3,500,000
=========
SCHEDULE B
COMMON STOCK
Underwriting Agreement dated November 19, 2003
Public Offering Price:
Per Share: $43.00
Total: $150,500,000
Underwriting Commission:
Per Share: $1.505
Total: $5,267,500
Last date of restrictions on sales of Common Stock for purposes of Section 3(h):
February 17, 2004.
EXHIBIT A
Form of Opinion of Company's Counsel
(To Be Delivered pursuant to Section 5(a)(ii))
(i) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Wisconsin; based solely on a
certificate of the Department of Financial Institutions of the State of
Wisconsin, the Company has filed its most recent required annual report and, as
of the applicable date specified in such certificate, (a) the Company has not
filed articles of dissolution with the Department of Financial Institutions of
the State of Wisconsin, and (b) the Department of Financial Institutions of the
State of Wisconsin has not commenced proceedings for the dissolution of the
Company and has made no determination that grounds exist for such action against
the Company.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Final Prospectus.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business
requires such qualification and in which the failure of the Company to be so
qualified and in good standing would have a Material Adverse Effect.
(iv) Each Significant Subsidiary of the Company 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 Registration Statement and the Final
Prospectus.
(v) All of the issued and outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable, except
with respect to wage claims of employees of the Company as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as such statutory
provision has been judicially interpreted, and assuming that any shares of
Common Stock issued under the Company's Stock Investment Plan or its employee or
director compensation or benefit plans were issued and sold in accordance with
the terms of such plans; the certificate for each outstanding share of Common
Stock also represents one Right per share, and the outstanding Rights have been
duly authorized and validly issued under the Rights Agreement and are entitled
to the benefits thereof.
(vi) All of the issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable, except with respect to wage claims of employees of the Company
and each Significant Subsidiary as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such
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statutory provision has been judicially interpreted; the Company is the owner of
record of all of the common stock of each Significant Subsidiary, directly or
through subsidiaries.
(vii) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally or by general equity principles and
except that no opinion as to enforceability need be expressed as to rights to
indemnification and contribution provided in Section 6 and 7 of this Agreement
or clauses concerning agreements to agree.
(viii) The Shares being delivered and paid for at the Closing Time have
been duly authorized, validly issued and are fully paid and nonassessable; and
the related Rights have been duly authorized and validly issued under the Rights
Agreement and are entitled to the benefits thereof; and neither the issuance of
the Shares nor the issuance of the related Rights is subject to preemptive
rights; the form of certificate used to evidence the Shares complies in all
material respects with any applicable statutory requirements, requirements of
the articles of incorporation and by-laws of the Company, and requirements of
the New York Stock Exchange.
(ix) The Shares (including the Rights) conform in all material respects
to the respective statements relating thereto contained in the Final Prospectus
and the Registration Statement.
(x) The Registration Statement is effective under the 1933 Act and, to
the best of such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the SEC.
(xi) The Registration Statement, on its effective date, and the Final
Prospectus, as of the date hereof (other than in each case financial statements
and other financial or statistical data included or incorporated by reference
therein, as to which no opinion need be rendered) complied or comply as to form
in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xii) To the best of such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Registration Statement
and the Final Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(xiii) Each document incorporated by reference into the Registration
Statement or the Final Prospectus complied as to form, when filed, in all
material respects with the 1934 Act and the 1934 Act Regulations.
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(xiv) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Final Prospectus, other than those that are disclosed therein.
(xv) To the best of such counsel's knowledge and information, neither
the Company nor any Significant Subsidiary is in violation of its articles of
incorporation or by-laws or in breach or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any Significant Subsidiary is
a party or by which it or any of them or their properties may be bound.
(xvi) No filing, consent, approval, authorization, order, or decree of
any court or governmental authority or agency is required for the consummation
by the Company of the transactions contemplated by this Agreement, except such
as have been obtained under the 1933 Act and the 1933 Act Regulations.
(xvii) To the best of such counsel's knowledge and information, the
execution and delivery of this Agreement and the issuance, sale and delivery by
the Company of the Shares, and the compliance by the Company with the provisions
of this Agreement, do not and will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, the articles
of incorporation or by-laws of the Company, any material contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
the Company or any Significant Subsidiary is a party, or by which it or any of
them is bound or to which any of their properties may be subject, or result in
the violation of any law, order, rule, administrative regulation or
administrative or court decree applicable to the Company or any Significant
Subsidiary of any court or of any Federal or state regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company or any Significant Subsidiary or their respective properties; there are
no proceedings, at law or in equity or before any governmental agency or body,
pending, or to the knowledge of the Company threatened, which affect or may
affect any of the transactions contemplated by this Agreement; and the Company
has full power and lawful authority to authorize, issue and sell the Shares on
the terms and conditions herein set forth.
(xviii) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and is not required to be registered
thereunder.
(xix) The Company and its Subsidiaries have statutory authority,
franchises, permits, easements and consents adequate to conduct the businesses
in which they are respectively engaged without legal restrictions that would
materially affect their ability to so conduct such business.
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(xx) The Shares have been approved for listing on the New York Stock
Exchange.
In giving such opinion, such counsel shall additionally state
that nothing has come to its attention that would lead it to believe that the
Registration Statement, as of its effective date and the Closing Time, contained
an untrue statement of material fact or omitted to state a material fact
necessary to be stated therein in order to make the statements therein not
misleading, or that the Final Prospectus, as of its issue date and the Closing
Time, contains any untrue statement of a material fact 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. Such counsel need
not render an opinion with respect to financial statements and other financial
or statistical data included or incorporated by reference in the Registration
Statement or the Final Prospectus.
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